Turkey has introduced several amendments to the Turkish Commercial Code No. 6102 ("TCC") in order to (i) regulate the signing procedure of corporate documents before trade registries, and (ii) determine the scope and limits of the authority of notary publics. These changes were introduced with the Law No. 7099 on the Amendment of Certain Laws in order to Enhance the Investment Environment, which was published in the Official Gazette on March 10, 2018.
Accordingly, the Ministry of Customs and Trade has published a number of Communiques amending the Communique on the Signing of the Incorporation Agreement of the Company Before the Trade Registry ("Incorporation Agreement Communique"), which were published in the Official Gazette on March 13, 2018 and April 17, 2018, in order to change the signing process of corporate documents. Furthermore, the Communique Amending the Communique on the Commercial Books ("Commercial Books Communique") was published in the Official Gazette on March 22, 2018, in order to modify the opening procedure of commercial books.
This article summarizes some of these changes.
2. Amendments to the TCC
(i) Signature Declarations: Notary publics are no longer entitled to certify the signature declarations of merchants (whether real person merchants or representatives of legal entities). Instead, the merchants' signature declarations must be issued in person before authorized persons at the trade registries, as per the amended Article 40 of the TCC. This amendment only applies to signature declarations submitted prior to the incorporation of an enterprise and came into effect as of March 10, 2018. Articles of the Incorporation Agreement Communique have been amended accordingly.
(ii) Opening of Commercial Books: Trade registries are authorized to open the commercial books of joint-stock and limited liability companies during the incorporation process of such companies, as per the amended Article 64 of the TCC. Previously, notary publics were allowed to do so as well. This amendment came into effect as of March 10, 2018. Article 13 of the Commercial Books Communique has been amended accordingly.
(iii) Signing of the Articles of Association ("AoA"): The founder of a limited liability company must now sign the company's AoA before an authorized person at the trade registry, as per the amended Article 575 of the TCC. In other words, notary publics are no longer authorized to certify the articles of association of limited liability companies. This amendment came into effect as of March 15, 2018. However, contrary to this new rule, notary publics remain authorized to notarize and certify the signatures of the founders on the AoAs of joint-stock companies. In any case, it would be recommended to consult with the relevant trade registry as to its preferred practice and procedures, in order to prevent any refusal by the trade registry officials regarding the registration of the notarized articles of association of joint-stock companies during the incorporation process.
(iv) Capital Contribution Payment: The founders of limited liability companies are no longer required to make a capital contribution payment of at least a quarter of the share capital prior to the registration of the company. This obligation still remains in effect for the founders of joint stock companies. This amendment came into effect as of March 15, 2018.
3. Amendments to the Incorporation Agreement Communique
(i) Legalization abroad: The signature declarations of signatories who reside abroad may be certified by Turkish consulates in the country where the signatory resides. This amendment came into effect as of April 17, 2018.
(ii) Requirement for signature declaration: As per amended Article 13/A of the Incorporation Agreement Communique, signature declarations are no longer required under some circumstances. According to this amendment, if the founder of a company is also authorized to represent the company and signs the incorporation agreement in person before the trade registry, his/her signature declaration is not required. Furthermore, in cases where the incorporation agreement is signed by proxy at the trade registry and the founder is also authorized to represent the company, his/her signature declaration is not required, subject to the condition that the original copy of the proxy bearing his/her signature is submitted to the trade registry. The proxy may be issued in Turkey or abroad. If issued abroad, it must be legalized and apostilled and then translated into Turkish and notarized in Turkey before submission to the trade registry. This amendment came into effect as of March 13, 2018.
As a result of the foregoing amendments, the notary publics' duty of approval (i.e., the necessity of obtaining the authorization of a notary public during the incorporation process), which was widely acknowledged and observed prior to these changes, is neither essential nor required. Instead, authorized persons are entitled to administer the signing procedures of signature declarations and execute the incorporation process of companies. The proper implementation of these changes by trade registries and Turkish consulates abroad would lead to the improvement of the investment climate in Turkey, and thus facilitate and promote the creation of new investments and businesses in the country, which are the stated aims of the said amendments.
This article was first published in Legal Insights Quarterly by ELIG Gürkaynak Attorneys-at-Law in June 2018. A link to the full Legal Insight Quarterly may be found here.
Authors: Gönenç Gürkaynak, Esq., Nazlı Nil Yukaruç, Damla Doğancalı and Gülşen Pazarbaşı, ELIG Gürkaynak Attorneys-at-Law