The Application Necessity Of Mediator In Negative Declaratory Actions! 25 April 2022
The issue of the application necessity of mediator in terms of negative declaratory actions has been a matter of debate in doctrines and case-laws. However, at this point, a consensus has been reached on this issue and it is accepted that there is no application necessity of mediator in terms of negative declaratory actions.
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The issue of whether an application to a mediator is a cause of action in terms of negative declaratory actions has led to differences of opinion in doctrine and practice, and the judicial authorities have given contradictory decisions. |
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In the doctrine, some authors stated that negative declaratory actions are within the scope of the cause of action However, both the Commercial Courts of First Instance and the Regional Courts of Justice have stated in some of their decisions via teleological interpretation that these cases could be also examined within the scope of mediation because the subject of negative declaratory actions is receive some amount of money. (İstanbul RCJ 12. HD., T. 31.12.2019, E. 2019/2456, K. 2019/1688, İstanbul RCJ, 12. HD., E. 2019/2292 K. 2019/1643 T. 26.12.2019) |
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Another view of ÖZEKES and TANRIVER in the doctrine is that negative declaratory actions are not technically a action of debt or compensation case due to their nature. Since negative declaratory actions do not contain a provision that condemns the other party to a monetary act, it is argued that the provision cannot be extended by the way of interpretation in the face of the clear wording of Article 5/A of the TCC. |
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However, in the decision of Court of Appeals for the 11th Circuit which is dated 10.02.2020, it has been accepted that the subject of the negative declaratory actions is the claim and the application to the mediator is a cause of action. |
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On the other hand, in the decision of Court of Appeals for the 19th Circuit regarding the settlement of the conflict between the final decisions of the Regional Courts of Justice; The contradiction about whether the application to mediation is a cause of action in negative declaratory actions falling under the jurisdiction of commercial courts has been resolved. |
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In this sense; It has been stated that the text and justification of the article of the law are clear and not suitable for an expanding interpretation, and it has been stated that an approach to the contrary will transform the application to mediation which is a special cause of action to a general cause of action. It has also been added that the subject of the negative declaratory actions, which is a special form of the declaratory actions, cannot be described as a case of debt and compensation case involving the payment of a sum of money. As a result, it was decided that the application to the mediator is not a cause of actions and the dispute should be resolved in this way. |
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Finally, Court of Appeals for the 11th Circuit has changed the opinion it stated in its previous decision with a recent decision. (2020/4396 E., 2021/3198 K., 01.04.2021 T.) |
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AS A RESULT; case-law unity has been achieved and it has been clearly emphasized within the framework of these decisions that the application to a mediator is not subject to the cause of action before the negative declaratory actions. |
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