Mandatory Mediation for Intellectual Property Disputes in Turkey as a Pre-Trial Dispute Resolution Method

In order to overcome this situation in Turkey; an amendment made to the 5th article of Turkish Commercial Code numbered 6102 with Code of Commencement of Execution Proceedings in Monetary Receivables Arising from Subscription Agreements numbered 7155 which was published in the Official Gazette numbered 30630 on 19th December 2018 regulating mediation as a compulsory requirement before filing lawsuits for claims regarding commercial receivables in which compensation for damages or payment of a certain amount is sought. Within this scope; pursuant to Turkish Commercial Code and relevant domestic intellectual property legislations, mediation regulated as a compulsory requirement for filing lawsuits for claims regarding commercial receivables in which compensation for damages or payment of a certain amount is sought for Turkish and foreign natural people and companies. Intellectual property related claims which do not have any commercial aspect are regulated as exception of this obligation and mediation is not a compulsory requirement for these claims before filing a lawsuit.

Main purpose of this regulation coming into force in 1st January 2019 is parties to resolve the dispute without filing any lawsuit regarding the dispute with mediator in 6+2 weeks at latest causing a decrease at workload of commercial courts alongside with saving time and money for applicant parties. Additionally, since the mediation meetings and evidences will be confidential for third parties, this new system also aims to resolve the disputes more effectively with preserving commercial reputation of both domestic and multinational companies.

But effectiveness of these mediation meetings is also highly important and should be discussed. Intellectual property rights sector is a dynamic sector requiring keeping up with changing and updating domestic and international legislations and developments alongside with general law knowledge. Mediators should also be experienced in this sector and capable of correctly understanding claims of parties and settlement grounds. For this reason, this new system is not able to perform its expected performance. On the 20th day of mandatory mediation applied to commercial lawsuits, Department of Mediation published an assessment memo dated January 20, 2019 stating that the number of application for mediation has arisen to 3547 but mediators hold first session between parties without preliminary preparation, do not ask open-ended questions, do not come with a final settlement proposal when parties fail to reach an agreement, are not able to use 6+2 weeks duration effectively. It has been seen that mandatory mediation is not effective as an alternative dispute resolution method due to mediators lacking necessary knowledge in order to perform this task.

In the light of abovementioned matters; even though it has been regulated by lawmaker that mandatory mediation is a compulsory requirement before filing lawsuits regarding intellectual property disputes, due to imperfections at system and mediators who are not able to serve actively during mediation process due to lacking necessary knowledge; mandatory mediation system for intellectual property disputes is not meeting with the initial expectations at the moment but it is thought that system might be beneficial at decreasing workload of courts and saving precious time of Parties in near future if more experienced mediators are appointed to the cases.

By Demet Yılmaz Utkaner, Attorney and Kaya Kayaogu, Attorney Sezer & Utkaner Law Firm