NEWSLETTER-2020-metin

275 CIVIL PROCEDURE LAW An Overview of Mediation Provisions as a Pre-condition in Commercial Disputes Prior to the examination of the aforementioned Decision of the Court, it would be beneficial to provide general information on media- tion as a pre-condition before filing a lawsuit (mandatory mediation ) in commercial disputes. Through the publication of Article 20 of Law numbered 7155 2 in the Official Gazette numbered 30630 and dated 19.12.2018, which entered into force on 01.01.2019, mandatory mediation in commercial disputes entered into Turkish Law. Pursuant to Article 5/A introduced to the TCC, as of 01.01.2019, application to mediate has become a pre-condition before filing a lawsuit for commercial claims concern- ing receivables and compensation involving the payment of a certain amount of money, among commercial claims specified in Article 4 of the TCC and other laws. As is understood clearly from the text of this Article, mediation is not mandatory for all commercial cases; it was prescribed as a compulsory pre-condition before filing a lawsuit with regard to cases wherein the subject matter of the dispute is a monetary payment or a claim for compensation. Therefore, in order to determine whether a case is subject to mandatory mediation or not, it is important to primarily determine whether the case is commercial and, then, whether the subject of the case is a claim for receivables or for compensation. The criteria considered as to whether or not a matter is a commercial case are regulated in Article 4 of the TCC. There are different opinions and decisions as to whether a negative declaratory action subject to mandatory mediation, which has also been examined in the justification of the Decision 3 . According to defenders who ar- 2 Law numbered 7155 on Procedures of Initiation of Execution Proceedings Re - garding the Receivables Arising From Subscription Agreements (Official Ga- zette, 19.12.2018, N. 30630). 3 For the decisions stating that the negative declaratory action is not subject to mandatory mediation see. 16th Civil Chamber of Istanbul Regional Court of Ap- peal, No. 2019/2603 E. 2019/2482 K., 15.11.2019; 16th Civil Chamber of Istan- bul Regional Court of Appeal, No. 2019/3030 E. 2019/2903 K., 30.12.2019; for counter decisions see. Koçyiğit, İlker / Bulur, Alper: Mediation as Pre-condition Before Filing a Lawsuit in Commercial Disputes, First Edition, Publication of the Directorate of Legal Affairs Mediation Department, March, 2019, p.140, http:// www.adb.adalet.gov.tr/link/ticariuyusmazliklardadavasartiarabuluculuk.pdf (Ac-