Impact of the 1999 Convention on the Arrest of Ships on the Turkish Commercial Code
The arrest of ships have been one of the most problematic issues in the Turkish law from the practical points of view. Prior to the enactment of the new Turkish Commercial Code No. 6102 (the “TCC”) in 2012, there were certain difficulties in the enforcement field under the Turkish law due to the essential differences between the material and the procedural laws which had been adopted into the Turkish legislation from different origins of law.
In order to overcome these issues, the Turkish lawmaker has set out provisions for the enforcement of the admiralty law related matters in Section 8, Chapter V of the TCC. Most of these provisions have been adopted from the 1999 Convention by means of verbatim translation although Turkey was not a party to the 1999 Convention at the enactment date of the TCC.
It should also be stated that Turkey had refused to become a party to the 1952 International Convention of Arrest of Ships, aiming to avoid the limitation of the precautionary attachment right (arrest) under the Turkish law, whereas this approach has been criticized by the practitioners.
As the 1999 Convention has been taken as the origin of the provisions set out in the TCC for the arrest of ships, the TCC and other relevant laws should be enforced on a complementary basis wherever the 1999 Convention makes a reference to the application of the local laws (lex fori). For example, following the entry into force of the 1999 Convention in Turkey, Article 1/1 of the 1999 Convention shall have priority over the relevant local laws in determining the claims that shall be listed under the “maritime claims”, whereas according to Article 2/4 of the 1999 Convention, the legal procedures for the arrest or release of ships shall be governed by the local laws where the arrest is applied..
Turkey had already ratified the 1999 Convention by the Law No. 6905 which was published on the Official Gazette dated the 25th of March, 2017. As a following act, Turkey has published a declaration on the Official Gazette dated the 3rd of May, 2019 regarding its consent to the 1999 Convention (almost two years after the ratification) wherein pursuant to Article 8 of the 1999 Convention, she has reserved the right to give priority to the provisions of 1926 International Convention for Unification of Certain Rules concerning the Immunity of State-owned Vessels and the Additional Protocol to it signed on 24 May 1934.
As per Article 14 of the 1999 Convention, the consents of states in respect of being bound by the 1999 Convention takes effect three months after the date of such consent is submitted to the Secretary-General of the United Nations. Upon the expiry of this period, the provisions of 1999 Convention shall take priority over the relevant provisions of the TCC, save for the lex fori principle referred to in the 1999 Convention.