Ankara Law Review

Published by Ankara University
Online ISSN: 1305-0575
Publications
Article
The United Nations Convention on Contracts for the International Sale of Goods (CISG) entered into force for Turkey on August 1, 2011. This article considers the significance of Turkey’s accession to the CISG as part of Turkey’s continuing engagement with systems of international trade, especially as relates to sales transactions with U.S. contracting parties. This article urges the Turkish bar to recognize that the CISG is a viable alternative to various potentially applicable bodies of domestic sales law, and the article offers some guidance regarding proper understanding and application of the CISG. This article also offers comparative analysis of some of the most important differences – and similarities – between the CISG and Article 2 of the Uniform Commercial Code, the primary domestic sales law in force in the United States, including analysis of the broad freedom of contract contained in each.
 
Article
In Turkey, privatization entered into the political agenda in the 1980s. In the 1990s, there were significant policy changes favoring privatizations but most of the attempts made failed to produce final results. The privatization movement in Turkey gained real momentum with the new millennium; especially in the last five years, the privatizations reached record figures. Leaving political factors aside, this is a result of legal reforms that created an efficient system by conducting privatization through an independent public authority -- the Privatization Authority. On the other hand, Turkey introduced modern competition regulations in the late 1990s which created another independent public authority, the Competition Authority. The Competition Authority is at the center of enforcement of competition laws. Naturally, privatization and competition laws are interrelated. Turkish legal system has produced a set of rules to prevent anti-competitive situations after privatization, so the Competition Authority plays an important role in the privatization process. There is a need to discuss the role of competition law in the Turkish privatization process at all stages of the privatization process; this article attempts to fill that need.
 
Article
This article analyses a type of ADR, seeking to resolve complaints of consumers and in particular of hospital patients. In doing so, it aims at establishing how this type of procedure differs from “normal” litigation and why it proves to be successful. It aims to show that its success is not only due to practical considerations, such as time, money and informality but that there is also a more principled reason. This reason relates to the appeal of the citizen’s self-empowerment in an age where individuals constantly move from the public realm as citizens towards the private realm as consumers.
 
Article
The 1982 Constitution of Turkey was amended extensively on 3 October 2001 by the Turkish Grand National Assembly (TGNA). This was the most comprehensive modification in the Turkish Constitution since its inauguration. The Constitution of 1982, which had been criticized by almost all political parties after returning to multi­ party politics in 1983, was amended by the TGNA in 1987, 1993, 1995, 1999 (twice), 2001 and 2002. However, none of these amendments was adequate for scrapping the remnants of the military regime from the Turkish constitutional system. This article analyses the 2001 amendments, which can be seen as a crucial step towards the elimination of non-liberal and non-democratic elements from the 1982 Constitution.
 
Article
The question of how to protect new intellectual creations, which emerged as a consequence of the developments in information technologies, brings about substantial debate. Undoubtedly, one of the most controversial issues in this area is the matter of which form of intellectual property protection is appropriate for computer programs. Although copyrights and patents are the two possible intellectual property forms under which computer programs might be protected, countries take different attitudes in this field depending on their level of advancement in the sector. The current international consensus on this subject is that copyright protection provided under TRIPS Agreement is most appropriate. Nevertheless, since there is no provision in the TRIPs agreement that prevents the patentability of computer programs, these creations could also be a subject matter of patents. ÖZET Bilgi teknolojilerinde yaşanan gelişmeler sonrasında ortaya çıkan yeni bir takım fikri ürünlerin nasıl korunacağı sorusu bir takım tartışmaları da beraberinde getirmektedir. Bu alanda en çok tartışılan konulardan bir tanesi şüphesiz bilgisayar edilen temel uygulama TRIPS Anlaşması'nda ifadesini bulan telif hakkı korumasıdır. Ancak, TRIPS Anlaşması'nda bilgisayar programlarının patentlenmesini engelleyen bir hükmün bulunmaması nedeniyle, bu yaratımların patent konusu olabileceği ileri sürülmektedir. Keywords: Computer programs, software patents, TRIPS Agreement, software-related inventions, software patents in the US, software patents in the EU, software patents in Turkey. Anahtar Kelimeler: Bilgisayar programları, yazılım patentleri, TRIPS Anlaşması, yazılımlarla ilgili buluşlar, ABD'de yazılım patentleri, AB'nde yazılım patentleri, Türkiye'de yazılım patentleri.
 
Article
This article is a comparative analysis of the systems for providing criminal defense representation to the poor in the United States and in Turkey. Both the Turkish and American legal systems guarantee the right to counsel in criminal cases and have established administrative structures for delivering legal aid services. This article focuses on four key aspects that distinguish the two systems in their present forms: (1) the historical development of the right to counsel as a constitutional versus a statutory right; (2) the inclusion versus exclusion of the notion that the right to counsel necessarily entails a right to competent and effective counsel; (3) the incorporation versus the rejection of financial eligibility limitations on the invocation of the right to counsel; and (4) a complete versus a limited notion of the types of criminal charges for which the entitlement to legal aid should be automatic. The article concludes by comparing the systems for administering criminal legal aid services in America and Turkey, particularly with respect to the decentralized, patchwork system that exists in America as a result of its federalist system of government.
 
Article
The margin of appreciation doctrine is based on the notion that each society is entitled to certain latitude in resolving the inherent conflicts between individual rights and national interests or among different moral convictions. The margin of appreciation doctrine that has been established by the European Convention on Human Rights and its implementing bodies, gives the State Parties to the Convention the opportunity to strike a balance between the common good of society and the interests of the individual when they restrict rights. The underlying principle is that state authorities are in a better position than an international judge to decide the proper application of the Convention to specific contexts. The development of this concept is important to keep in mind as Turkey accedes to the European Union and comes under pressure to adhere to European standards. Ankara Law Review Vol. 5 No. 2 202 uygulanmasında ulusal otoritelerin uluslararası yargıca göre daha iyi bir konumda olması gerçeğidir. Keywords: Margin of appreciation doctrine, European Court of Human Rights, international judgments, individual rights and national interests. Anahtar Kelimeler: Takdir hakkı doktrini, Avrupa İnsan Hakları Sözleşmesi, uluslararası mahkeme kararları, bireylerin hakları ve ulusal menfaatler.
 
Market Access Approach to Freedom of Establishment and to Provide Services 31
New Restrictions Approach to the Standstill Clauses in Association Law
Article
The association law between Turkey and the Union has been a source of rights for certain Turkish nationals, thanks to the decisions of the European Court of Justice. In this respect, the recent years have witnessed the increasing importance of Article 41(1) of the Additional Protocol – the standstill provision concerning the freedom of establishment and to provide services – in the case law of the Court. One striking example is the Soysal case which paved the way for certain Turkish nationals to travel to Germany without a visa. Thus, a need has emerged to explore the exact boundaries of this article in particular, and the scope and effects of the freedoms of establishment and to provide services in association law in general. Accordingly, this paper is an effort to examine the scope and effects of the said freedoms in association law by comparing them with the same freedoms in European Union law.
 
Article
This article analyzes a very recent decision of the Turkish Constitutional Court that struck down the constitutional amendment adopted to allow women students to wear headscarves in higher education institutions. For the analysis of the decision, two concepts from the positivist legal theory are invoked, that is, the Grundnorm of Hans Kelsen and the Rule of Recognition of Hart, which seem -in a way — to be related lo the decision. At the same time, the concept of constituent power, which is appealed to in the reasoning of the Court, is also dealt with briefly. As a result of the analysis, the conclusion is that the two concepts in legal theory lead to two different results, in that while the Grundnorm of Kelsen and his theory at large seems to support the idea that the decision of the Court is incompatible with his pure theory of law. Hart's concept of the Rule of Recognition, on other hand, seems to suggest that it is compatible with the decision. At the same time, the decision also poses some important problems from the perspective of the theory of constitutional democracy, which is, to some degree, examined in the article. Özet Bu makalede. Anayasa Mahkemesinin Anahtar Kelimeler: Hans Kelsen, temel norm. Hart, Tanıma Kuralı, Anayasal demokrasi, türban, kurucu iktidar.
 
Top-cited authors
Bülent Algan
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Hüseyin Can Aksoy
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Murat Tumay
  • Istanbul Medeniyet Universitesi
Mehmet Zahid Sobacı
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Bekir Parlak
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