In our legal system, the place where proceedings are to be held is, as a rule, regulated by law. However, Article 17 of the Code of Civil Procedure introduces an exception, stipulating that merchants and public legal entities may, by means of a contract concluded between them, designate one or more courts as competent to hear any dispute that has arisen or may arise between them. Unless the parties agree otherwise, any lawsuit to be filed may only be brought before the courts specified in the contract.
In its decision dated 02.06.2015, numbered 2015/3874 and 2015/8205, the 19th Civil Chamber of the Court of Cassation stated: “As a result of the trial conducted by the court, the jurisdiction clause in Article 14 of the dealership agreement… (new Istanbul Anatolian Courts) were stipulated as the courts of jurisdiction, both parties being merchants, pursuant to Article 17 of the Code of Civil Procedure, where the parties are merchants, they may designate one or more courts as competent for disputes that have arisen or may arise between them, and the jurisdiction agreement is valid if made between merchants or public legal entities. if the parties wish that the jurisdiction of the general and special courts of competent jurisdiction under the law shall continue alongside the court designated as competent by the agreement, this must be specified in the agreement; otherwise, the case shall be brought only before the court designated by the agreement on jurisdiction. Since there is an agreement on jurisdiction between the parties, the court designated as competent under this agreement is… Anadolu Courts, and therefore this court lacks jurisdiction, and the file shall be sent to the competent and authorised… Duty Commercial Court. The ruling was appealed by the plaintiff’s representative.
Based on the documents in the file, the evidence on which the decision is based, and the compelling reasons, all appeals by the plaintiff’s representative that are deemed unfounded are rejected, and the ruling, which is found to be in accordance with the procedure and the law, is CONFIRMED. The confirmation fee specified below is to be collected from the appellant. It was unanimously decided on 02.06.2015.”
Article 18 of the Code of Civil Procedure regulates the conditions for the validity of jurisdiction agreements. The first paragraph states, ‘In matters over which the parties cannot freely dispose and in cases of exclusive jurisdiction, a jurisdiction agreement cannot be made.’ In such cases, the parties cannot determine the competent court by agreement in matters subject to the rule of exclusive jurisdiction. As the objection to jurisdiction concerns public order, it may be raised at any stage of the proceedings.
In its decision dated 17 January 2017, with case number 2016/15056 and decision number 2017/319, the 11th Civil Chamber of the Court of Cassation also stated that
The court, considering the entire case file, found that the contract between the plaintiff and the defendant specified the competent court for the resolution of disputes as… Pursuant to Article 17 of the Code of Civil Procedure, a court may be designated as competent by contract for disputes that have arisen or may arise between legal entities, and the case must be brought before the court specified in the contract. The court ruled that it lacked jurisdiction on the grounds that the court designated as competent in the contract was binding, the case was not filed in the court designated as competent in the contract, and the defendant’s representative’s objection was timely. The defendant’s representative appealed the decision.
The court may rule on its own motion that it lacks jurisdiction in cases where jurisdiction is a condition precedent to the action. Article 18 of the Code of Civil Procedure clearly stipulates that the parties cannot enter into a jurisdiction agreement in cases of exclusive jurisdiction. Therefore, a jurisdiction agreement cannot be made in cases of exclusive jurisdiction. The existence of a jurisdiction agreement is also not one of the cases where a decision of lack of jurisdiction may be rendered ex officio.
In a case where there is exclusive jurisdiction, a jurisdiction agreement between the parties will have no validity, and the court will determine the competent court within the framework of the rules of exclusive jurisdiction and apply the necessary provisions by fulfilling the requirements of the law without regard to this agreement.
The second paragraph of the article states: ‘For an agreement on jurisdiction to be valid, it must be in writing, the legal relationship giving rise to the dispute must be specific or determinable, and the court or courts with jurisdiction must be indicated.’
Even if there is an oral agreement between the parties, oral agreements will have no significance in a case brought based on this declaration. Furthermore, the subject matter of the agreement signed between the parties must be specified or determinable in nature, as it may be the subject of a legal dispute.