As per a recent understanding between the political parties of the Grand National Assembly, an intention was voiced to enact three basic codes before the next general election, to be held in June 2011. The three drafts on the agenda of the Assembly were the Code of Obligations, the Commercial Code and the Code of Civil Procedure. The Turkish Government had proposed the Draft Code of Civil Procedure numbered 1/574 (the “Draft Code”) to the Grand National Assembly in April 2008. When the Draft Code is enacted, it will repeal the present Code of Civil Procedure (Law No. 1086) (published in the Official Gazette dated 2- 4 July 1927 and numbered 622,623 and 624). The Draft Code of Obligations was passed by the General Assembly on 11 January 2011 and will become effective on 1 July 2012. The Draft Code was passed by the General Assembly on 12 January 2011 and will become effective on 1 October 2011.

As one of the major changes envisaged, the Draft Code provides that agreements on the jurisdiction of courts will only be made between merchants and/or public legal entities. Therefore, the Draft Code introduces a distinction between merchants or public legal entities and other persons regarding agreements to the jurisdiction of courts. While merchants or public legal entities may be deemed legally equal, they are stronger than other persons who do not possess equal bargaining power when entering contracts; hence the outcome of this situation has been unconditional acceptance of contracts written by the strong parties, including the clauses regarding the jurisdiction. Such agreements will be strictly prohibited.

In light of the Draft Code, only the merchants and/or public legal entities will be able to make agreements between themselves on the jurisdiction of one or more courts. It is noteworthy that the present Code of Civil Procedure provides that the parties have the ability to determine the jurisdiction of only one specific court. This provision will be abolished as regards the Draft Code. Save as provided otherwise by the parties, the agreement on jurisdiction will be exclusive. Where the parties wish to preserve the jurisdiction of specific courts authorised by law, in other words where the parties wish to conclude a non-exclusive agreement, it will be mandatory to include such provision in the agreement.