NEWSLETTER-2020-metin

278 NEWSLETTER 2020 Upon the justification, above, the Court decided that the decision of the regional court of appeal shall be reversed. In the Decision, it is stated that even though the negative declaratory action is subject to mediation as a pre-condition prior to bringing the action, it would not be subject to mandatory mediation, since it was claimed with the action for restitution the cheque, which is not subject to mandatory mediation. In fact, the Court rendered another recent decision on the same subject to the same end 6 . Dissenting Opinion In the dissenting opinion given in the Decision, it was emphasized that the negative declaratory action regulated in Article 72 of Execu- tion and Bankruptcy Law numbered 2004 is a unique case, and it does not contain a claim for compensation or payment of a certain amount. Accordingly, it states that although the court might render a decision that the defendant is a creditor in consequence of the negative declara- tory action, the collection of money is not ordered. Furthermore, the prejudices that might be encountered in practice due to the assumption that the negative declaratory action is subject to mandatory media- tion are pointed out in the dissenting opinion. It is underlined that this would violate the principle of equality of arms considering that the negative declaratory actions are brought to the court in order to sus- pend the existing or possible execution proceedings, and that there is no legal procedure to suspend the execution proceedings envisaged in mediation. The dissenting opinion furthermore criticizes the Decision from a different point of view. It is asserted that the claims should be severed if one of the claims is not subject to mandatory mediation, unless there is a provision of law ruling that the claims shall be jointly examined. Conclusion The Court has given a directive decision as to whether the negative declaratory action is subject to mandatory mediation, and it concluded that mediation is mandatory for negative declaratory actions. In the 6 Decision of the 11th Civil Chamber of the Court of Cassation No. 2020/197 E. 2020/1578 K., 17.02.2020.