Joint Venture in Turkish Law – Türk Hukukunda Ortak Girişim

Joint Venture sistemini kısaca “ortak girişim” olarak tanımlayabiliriz. İki ya da daha fazla tüzel kişinin bir araya gelerek, kararlaştırdıkları belirli bir yatırım projesi için birlikte hareket etmek için oluşturdukları ortak işletme yapısına, joint venture denir. Bu yazımızda konu ile ilgili bir makaleyi inceleyerek Joint Venture ile ilgili İngilizce terimlerin karşılıklarını bulabileceksiniz.

JOINT VENTURES (JVs)

JVs in Turkey

Joint ventures between Turkish and non-Turkish companies have become very popular in Turkey in recent years, mainly owing to the emphasis placed by the government on urban transformation projects and developing infrastructure. There are no restrictions on the nationality of shareholders and those holding management rights except for specific sectors such as TV broadcasting, maritime and civil aviation.

Joint Venture : Ortak Girişim
restriction : kısıtlama

What is a JV ?

A joint venture is generally considered an ordinary partnership, which is not a legal entity under Turkish law, but shareholders usually choose to establish a commercial company.

ordinary partnership : adi ortaklık

An ordinary partnership does not hold a legal entity status. Ordinary partnerships can be established by two or more persons, with or without a written partnership agreement. Among all the entities, ordinary partnership is the only entity which does not require a written agreement for its establishment. A partnership’s assets are jointly owned by its partners. Similarly, partners of an ordinary partnership are jointly, severally and unlimitedly liable against the creditors of the partnership. Therefore, an ordinary partnership can neither sue nor be sued because it does not have the capacity to act as a legal entity.

hold : sahibi olmak, taşımak
written partnership agreement : yazılı ortaklık sözleşmesi
jointly owned : müştereken sahip olma
jointly, severally and unlimitedly liable : müştereken, müteselsilen ve sınırsız sorumlu
the creditors of the partnership: ortaklık alacaklıları
capacity to act : fiil ehliyeti

Legislation about JVs

There is no specific legislation governing joint ventures in Turkey which are governed by the laws applicable to the type of company established.

applicable to : -e uygulanabilir

There is no particular Turkish legislation which overall govern the joint venture contracts. Articles 620 and subsequent articles of the Turkish Obligations Code apply to a joint venture, should it be incorporated in the form of an ordinary partnership. Joint ventures may be established in the form of ordinary partnerships or by incorporating a commercial entity or by participating in a commercial entity already established.

subsequent : ve devamındaki
to incorporate: (şirket) kurmak
to participate : iştirak etmek, katılmak

Furthermore, provisions of the Turkish Commercial Code will be applicable to joint venture contracts, and the relevant provisions of Labour Code will also be applicable to such joint ventures should there be any foreign component.

foreign component : yabancılık unsuru

It is a common practice to enter into a shareholders’ agreement to govern the relationship between the joint venture parties and the maintenance of the joint venture. The provisions of such joint venture agreements may be incorporated into the articles of association of the established company, subject to such provisions not conflicting with any applicable legislation. For example, the inclusion of put option and call option rights are also available to remedy deadlock events should the need arise, as with most jurisdictions.

to enter into a shareholders’ agreement : ortaklık sözleşmesi yapmak
articles of association : şirket ana sözleşmesi
inclusion of put option and call option rights : alım ve satım opsiyon hakkının dahil edilmesi
to remedy deadlock events : kilitlenme durumlarına çare bulmak

Accounting of JVs

In the Turkish Corporate Tax Law No. 5422 (the “CTL”), joint ventures are categorized as “partnerships” and it has been stated that joint ventures comply with the articles of the CTL. But this is binding only for the tax liability of joint ventures because joint ventures are deemed partnerships under Turkish legislation. This is a special exception because according to Turkish tax legislation only the incorporations, which have legal entity status, are governed by the CTL. Ordinary partnerships do not have legal entity status and therefore are not governed by the CTL as a general rule. But under the provisions of the CTL it has been stated that joint ventures are governed by the provisions of the CTL despite the fact that they are incorporated as ordinary partnerships with no legal entity status.

corporate tax : kurumlar vergisi
to bind : bağlayıcı olmak
to be deemed : -gibi kabul edilmek, düşünülmek

Conclusion

Joint venture structure carries on both ownership and management rights. Therefore, parties to a joint venture agreement may disagree with regard to actions or decisions to be taken. There are no specific provisions in the Turkish Commercial Code or in the Turkish Obligation Code regarding a dispute resolution mechanism. Therefore the parties forming a joint venture company may wish to provide in their joint venture agreement that one or more dispute resolution mechanisms will be employed prior to recourse to arbitration or to more effective measures such as termination of joint venture.

dispute resolution mechanism : uyuşmazlık çözüm mekanizmaları
to recourse to arbitration : tahkime başvurmak
termination : fesih, sonlandırma