Corporate and M&A

Author: Tolga Sevinir

Introduction

Article 285 et seq. of the Enforcement and Bankruptcy Law No. 2004 ("EBL") provides debtors who are unable or in danger of being unable to pay their debts when due, the opportunity to restructure their debts before bankruptcy and to eliminate the risk of bankruptcy. In 2018, with the comprehensive amendment to the Law, the concordat institution was made operational and the bankruptcy of debtors was prevented to a great extent in the financial bottleneck experienced by the country. As is known, during the preparation phase of the concordat project, the creditors who are called pursuant to Article 288 of the EBL notify their receivables, and pursuant to Article 300 of the EBL, the debtor makes a declaration regarding the notified receivables. In this context, the debtor may object to certain receivables and render these receivables contentious. Article 308/b of the EBL grants a right of action to the holders of the receivables that have become contentious and are therefore excluded from the concordat plan. Accordingly, the holders of the contentious receivables may file a lawsuit within one month from the date of the announcement of the concordat approval decision and request the elimination of the dispute.

 

Due to the nature of the lawsuit and the benefit to be obtained as a result of the lawsuit, it is a matter of debate whether this lawsuit to be filed is subject to mandatory mediation as a condition of litigation pursuant to Article 5/A of the Turkish Commercial Code No. 6102 ("TCC"). The law does not address this issue, and the Regional Courts of Appeal render diametrically opposed decisions. Although there are 2 published decisions of the Court of Cassation on this issue, it is too early to talk about a case law.

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