I. What is International Trade Law?
International trade refers to the movement of any goods or commodities between countries. It involves trade between individuals or legal entities that are located in different countries, have different places of business or habitual residence, or possess different nationalities, and impacts global economic and commercial relationships.
International trade law comprises the legal rules that regulate international trade. After World War II, international trade grew rapidly, but traders encountered difficulties when faced with different legal systems. Consequently, efforts were made to create uniform rules that would apply to all commercial transactions. In the 20th century, international conferences advanced the development of international trade law through the unification of national laws.
The sources of international trade law include general legal principles, commercial customs, international regulations, model laws prepared by international organizations, standard forms of contract, and rules of international public law. The Republic of Turkey is a signatory to the United Nations Convention on Contracts for the International Sale of Goods, which was adopted on April 11, 1980 by the United Nations Commission on International Trade Law.
Under the Vienna Convention, which governs the Convention on Contracts for the International Sale of Goods, if parties engaged in international trade do not agree to opt out of this convention, their trade will be governed by these international standards. For more information on this topic, please contact BAL Law Firm.
II. What are the sub-branches of international commercial law?
Foreign trade refers to cross-border commercial activities between states. It encompasses regulations made by a state regarding its commercial relations with another state. Reasons for states engaging in foreign trade include price differences, inadequate domestic production, and differentiation of goods.
For an international commercial relationship to exist, one of the states involved in the economic activity must have a need for certain goods and services. Foreign trade contributes positively to the distribution of personal income and helps to foster economic growth in a country.
Customs is both a tax, an administration, and a location. The concept of customs refers to the customs administrations that tax, control, supervise, and inspect goods or merchandise entering or leaving a country, as well as the location where these activities take place. Customs create the economic borders of a state. Customs duty is a type of tax levied on goods or merchandise imported, exported, or transited through a country.
Customs law was created for the purpose of monitoring and controlling the entry and exit of goods and merchandise within the boundaries of a country. Customs law resolves disputes that arise during the government’s inspection of customs subject goods.
Countries cannot produce all the goods they need and may have insufficient production capacity for certain goods. In this case, they can obtain these goods from other countries through foreign trade. Import refers to the purchase of goods produced abroad by buyers in a country. Import can be made by individuals, companies or directly by the government. “Definitive import” can be carried out within the framework of the rules system called “free circulation regime” in customs legislation. Simply paying the taxes applicable to the imported goods is not sufficient for the goods to enter into free circulation; the trade policy measures applicable to the goods and other procedures required for their importation must also be completed. “Temporary import” means that the goods are sent back to the foreign country after entering Turkey for a certain period of time. All legal and natural persons who have a tax number and legal transaction authority within the framework of the Tax Procedure Law can import goods.
When the production in a country exceeds the demand, the excess products are sold to other countries. The export process is the opposite of import. In this context, it is the purchase of a product produced in the country by a company operating in a different country and transferring it to that country. It is the sale of a product produced in the country for foreign currency to a foreign country. It is also referred to as foreign sales. To be able to carry out the export process, there must be a product to sell and a legal entity or individual with tax number and legal authority to sell this product.
In the Customs Law, all import and export taxes applied to goods are defined as customs taxes. The subject of customs taxes is goods that are subject to international trade entering or leaving the Turkish Republic Customs Area. The taxation process consists of assessment, notification, accrual, and collection stages.
Exported goods are exempt from customs taxes in the Turkish Customs Area. However, when they are exported outside the Turkish Customs Area under a customs declaration, the customs tax liability arises. Customs liability for imports arises when the goods enter free circulation or are temporarily imported. The customs duty on a good is determined according to the Turkish Customs Tariff Schedule. When calculating customs taxes, the tariff classification, origin of the goods, and customs value of the goods are taken into account. The main taxes levied on imports are customs duty, additional customs duty, value-added tax, excise duty, mass housing fund, anti-dumping duty, additional financial obligations, and the fund for supporting resource utilization.
An “antrepo” (warehouse) is a place where goods subject to customs duties are kept and monitored during customs supervision. The duration of goods staying in the warehouse can vary, as there is no restriction on time. The customs duties for goods kept in the warehouse are paid at the time of importation. There are two types of warehouses: private and public. Only the lessee of a private warehouse can use it, while multiple companies can use a public warehouse.
Transportation and Logistics Law
Transportation is the act of moving something from one place to another. Transportation refers to the transfer, movement, and delivery of goods or materials. Transportation plays a crucial role in international trade. There are four types of transportation: road transport, air transport, rail transport, and sea transport.
Logistics is a broader concept that includes transportation. Logistics covers the planning and implementation of the entire system, as well as storage, packaging, and protection of goods.
International Commercial Contracts
Contract is established as a result of the mutual agreement of two parties with compatible declarations of will. International contracts involve the parties from different nations. International commercial contracts are the agreements made by individuals from different nations for commercial activities. In contracts with foreign elements, the parties may freely determine the law to be applied to the contract. Distribution agreement, agency agreement, franchising agreement, and transportation agreement can be given as examples of international commercial contracts.
The elements of international commercial contracts are the identities of the parties, the date of the contract, the place of the contract, the subject matter of the contract and expected benefits, the price to be paid and currency, delivery method of the product, payment method and time, breach of contract, compensation and penalty, ownership and preservation records, force majeure, intellectual property, notifications, dispute resolution, and applicable law. All elements should be taken into consideration and negotiated between the parties during the contract drafting.
A distribution agreement, also known as a franchise agreement in Turkey, is an atypical contract as it is not regulated under the Turkish Code of Obligations. The parties to the agreement are the producer and the distributor.
In a distribution/franchise agreement, the supplier agrees to send all or a part of their goods to the distributor for sale, and in return, the distributor undertakes to sell the goods under their own name and account and to engage in activities that will increase the sales of the goods.
An exclusive distribution agreement, on the other hand, regulates the legal relationship between the producer and a single seller. The producer agrees to send all or a part of their goods to the single seller as an exclusive right to sell the goods in a particular region, and the single seller is obliged to sell the goods under their own name and account and to engage in activities that will increase the sales of the goods.
Exclusive distribution agreements are used to facilitate the delivery of goods to the end consumer. In addition to sales, these agreements also provide services such as product entry into the market, promotion, and warranty services. Exclusive distribution agreements are the most suitable tool for entering a country’s market, and therefore, they are a widely used type of contract.
In a distribution agreement, the parties may choose the law to be applied in case of a dispute. However, if the parties have not chosen the law, the fourth paragraph of Article 24 of the Law on International Private Law Procedure shall apply, which states that “If the parties have not chosen the law applicable to the contract, the law most closely connected with the contract shall apply. This law shall be the law of the habitual residence of the characteristic debtor at the time of the conclusion of the contract in contracts relating to commercial or professional activities established by the characteristic debtor, the law of the place of business of the characteristic debtor if he has none at his habitual residence, and the law of the place of business most closely connected with the contract if the characteristic debtor has more than one place of business.” In an exclusive distribution agreement, the place of performance of the characteristic obligation is the law of the place where the exclusive distributor’s sales region is located.
Under Article 102 of the Turkish Commercial Code, an agent is defined as “a person who, without having a legal position attached to a commercial enterprise such as a commercial representative, commercial agent, salesperson, or employee of the enterprise, engages in brokering or performing contracts that are continuously related to a commercial enterprise within a certain place or region based on a contract, or who makes these contracts on behalf of the trader.”
In an agency contract, the agent’s obligation is to act as an intermediary in contracts related to the commercial enterprise in line with the interests of the trader or to make these contracts on behalf of the client. The obligation of the counterparty is to pay the agent a fee for their services as a result of these activities. According to the predominant view in doctrine, the agency contract is a type of service contract.
The most important right of the agent against their client is the right to receive compensation. Other rights of the agent include the right to obtain information, documents, and requests related to their compensation, the right to request extraordinary expenses, the right to imprisonment, and the right to a monopoly.
Intellectual Property Law
Intellectual property rights are rights over industrial, scientific, literary, and artistic products that are generally non-material and arise from a mental process resulting from a person’s thought, intelligence, or emotions. Intellectual property rights are divided into two categories: industrial property rights and intellectual rights. Intellectual rights are rights over ideas and artistic works.
Industrial property rights are rights over products such as trademarks, patents, utility models, and designs. The rules of industrial property law are regulated in the Industrial Property Law. A trademark is any sign that distinguishes the goods or services of one enterprise from those of another enterprise. A patent is a document granted by official authorities upon the request of the inventor, giving the inventor the authority to prevent unauthorized use, production, and trade of the product related to the invention for a specific period. A utility model is a protection method provided for inventions that offer small contributions in practice, whose scientific and theoretical foundations are insufficient or controversial, or whose invention steps are weak or incomplete. Trademarks, patents, and utility models must be registered with the Turkish Patent and Trademark Office to be protected under the Industrial Property Law.
The use of registered industrial property rights by others constitutes a crime. Article 30 of the Industrial Property Law states: “A person who infringes on the trademark rights of another by imitating or counterfeiting a trademark, producing or providing a service, offering for sale, importing or exporting, purchasing for commercial purposes, possessing, transporting or storing a product shall be punished with imprisonment for a term of one to three years and a judicial fine of up to twenty thousand days.”
In the event of a violation of a registered industrial property right, the patent owner also has legal rights. According to Article 149 of the Industrial Property Law, if a trademark owner’s rights are violated:
a) The determination of whether the act constitutes infringement.
b) Prevention of potential infringement.
c) Cessation of infringement acts.
d) Elimination of infringement and compensation for material and moral damages.
e) Seizure of products, machines, and devices used exclusively in the production of infringing products, in a way that does not prevent the production of other non-infringing products, with recognition of ownership rights over the seized products, machines, and devices in accordance with paragraph (d).
f) Taking measures to prevent further infringement, particularly changing the appearance of seized products and machines, removing trademarks from them, or destroying them if necessary to prevent infringement of industrial property rights, with expenses borne by the infringer.
g) In cases where there is a just cause or interest, a request can be made for a final decision, the expenses of which are borne by the other party, to be published in newspapers or similar media in full or in summary or to be notified to the parties concerned.
Resolution of International Disputes
The ways of resolving international commercial disputes can be listed as follows: settlement, mediation, litigation, and arbitration.
Settlement is when a neutral third party assists the parties in resolving the dispute. Mediation is optional. The mediator facilitates the parties’ discussion of their claims and negotiates settlement options regarding the dispute.
If a dispute arises, the parties can file a lawsuit in a competent and jurisdictional court. In this case, the choice of law specified in the contract is important. If the parties have not specified which country’s law will be applied, Article 24 of the Law on International Private Law and Procedure is applied.
The parties may also have agreed in the contract that their dispute will be resolved through arbitration. In this case, they can resort to international arbitration. The parties can choose between two types of arbitration: ad hoc arbitration or institutional arbitration. Ad hoc arbitration is an arbitration process without the involvement of an institution. The parties determine the rules of arbitration, such as the selection of arbitrators, the applicable law, and the rules themselves. In institutional arbitration, the parties submit the arbitration process to an arbitration institution. They can choose an international arbitration institution such as the International Court of Arbitration of the ICC or the American Arbitration Association, or another arbitration institution.
Commertcial Courts in Turkey
As per Article 5 of the Turkish Commercial Code, “Unless otherwise provided, commercial courts of first instance shall have jurisdiction over all commercial cases and non-contentious matters of commercial nature, irrespective of the value or amount of the subject matter in dispute.” Therefore, commercial courts of first instance are responsible for resolving disputes arising from commercial matters. Hence, in Turkey, international commercial disputes fall within the jurisdiction of the commercial courts of first instance.
If no arbitration method is chosen in the contract between the parties, or if it is not raised as the first objection, the disputes will be resolved in the commercial courts of first instance in Turkey according to the rules of private international law.
All transactions and actions related to a commercial enterprise, regulated by the Turkish Commercial Code, are considered as commercial activities. Any dispute arising from a commercial transaction is therefore classified as a commercial lawsuit. The types of commercial lawsuits are defined in Article 4 of the Turkish Commercial Code as follows:
“Legal actions and non-contentious matters arising from matters related to the commercial enterprises of both parties, regardless of whether they are merchants or not, a) in this Code, b) in Articles 962 to 969 of the Turkish Civil Code regarding lending against collateral, c) in Articles 202 and 203 regarding the acquisition of assets or businesses, mergers and transformations, Articles 444 and 447 concerning non-competition agreements, Articles 487 to 501 regarding publishing contracts, Articles 515 to 519 governing credit letters and credit orders, Articles 532 to 545 regarding commission contracts, Articles 547 to 554 for commercial representatives, commercial agents, and other commercial assistants, Articles 555 to 560 concerning bills of exchange, and Articles 561 to 580 regulating storage contracts, d) in legislation related to intellectual property rights, e) in special provisions related to stock exchanges, exhibitions, fairs, markets, warehouses, and other places specific to commerce, and f) in regulations related to banks, other credit institutions, financial institutions, and lending activities are considered as commercial lawsuits and non-contentious matters of a commercial nature arising from matters specified therein.”
International trade is the circulation of any goods or merchandise between countries. International trade involves commercial and economic relationships that impact or involve individuals or legal entities residing, having a business center or a habitual residence in different countries, or holding citizenship in different states. International trade law refers to the legal rules and customary practices that regulate international trade.
An international trade lawyer ensures the safe conduct of your investments, import and export activities. They provide oral and written consultancy on all aspects of international trade law. They prepare international contracts such as distribution, franchising, agency agreements with foreign companies and inform you about potential disputes. They ensure that the contract is prepared in your favor. They evaluate and provide advice on disputes with foreign companies under Turkish law or international law, and follow up on your lawsuit.
They provide legal support to foreign companies regarding their investments in Turkey. They inform their clients about taxes and double taxation in international investments. When necessary, they resort to international arbitration. They assist in the management of international commercial activities such as consumer law, customs procedures, and after-sales services.
BAL Law Firm's International Trade Law Legal Services
You can benefit from our expert attorneys’ international trade law services at BAL Law Firm. Some of the international trade law services provided by BAL Law Firm include:
- Providing oral and written advice on every aspect of international trade law
- Preparing your international contracts, such as distributorship, franchising, and agency agreements with foreign companies
- Informing you about potential disputes arising after the contract is signed
- Evaluating the situation under Turkish law or international law, providing advice, and following up on your case in case of disputes arising with foreign companies
- Providing legal support to foreign companies regarding their investments in Turkey
- Informing clients about taxation and double taxation in international investments
- Resolving disputes through international arbitration
- Resolving legal disputes arising from international transportation and logistics
- Providing legal advice on customs procedures and resolving disputes.