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Construction & Engineering Law 2017 ICLG The International Comparative Legal Guide to: Construction & Engineering Law 2017 4th Edition A practical cross-border insight into construction and engineering law Published by Global Legal Group, with contributions from: Advokatbyrån Hellgren Linander AB Matheson Advokatfirmaet Thommessen AS Mattos Filho, Veiga Filho, Marrey Jr e Allen & Gledhill LLP Quiroga Advogados Ashurst Melnitsky & Zakharov, Attorneys-at-Law City Development Law Firm Moravčević Vojnović i Partneri in cooperation Clyde & Co with Schoenherr COMAD, S.C. Nagashima Ohno & Tsunematsu Deacons Norton Rose Fulbright South Africa Inc. Duane Morris LLP Osterling Abogados FALM – Sociedade de Advogados, SP, RL Rose LLP Galadari Advocates & Legal Consultants SBH Law Office Kachwaha & Partners Simmons & Simmons LLP Kyriakides Georgopoulos Law Firm Skrine Lahsen & Cía. Abogados Stassen LLP Rechtsanwälte und Notare Makarim & Taira S. TUGA|ARAT Law Offices Mäkitalo Rantanen & Co Ltd, Attorneys-at-Law Wintertons Legal Practitioners The International Comparative Legal Guide to: Construction & Engineering Law 2017 General Chapters: 1 Some Thoughts on Contractual Interpretation – Tim Reid, Ashurst 1 2 Construction Insights in Africa: A Short Comparative Guide – Richard Dyton, Simmons & Simmons LLP 4 Country Question and Answer Chapters: Contributing Editor Tim Reid, Ashurst 3 Australia Clyde & Co: Kon Nakousis & Teodor Lomaca 10 Sales Director 4 Belarus SBH Law Office: Alexander Filipishin & Vitaly Tvardovskiy 20 Florjan Osmani 5 Brazil Mattos Filho, Veiga Filho, Marrey Jr e Quiroga Advogados: Account Director Oliver Smith Eduardo Damião Gonçalves & Thiago Moreira 28 Sales Support Manager 6 Canada Rose LLP: Peter A.K. Vetsch & Courtney C. Kachur 37 Paul Mochalski 7 Chile Lahsen & Cía. Abogados: Eduardo Lahsen Matus de la Parra Sub Editor & Pedro Mery Reyes 44 Hollie Parker Senior Editors 8 China City Development Law Firm: Cao Shan 51 Suzie Levy, Rachel Williams 9 England Ashurst: Tim Reid & Michael J. Smith 57 Chief Operating Officer Dror Levy 10 Finland Mäkitalo Rantanen & Co Ltd, Attorneys-at-Law: Aimo Halonen Group Consulting Editor & Ieva Kovarskyte 69 Alan Falach 11 Germany Stassen LLP Rechtsanwälte und Notare: Anne Schoenbrunn Publisher & Florian Diestelmann 74 Rory Smith 12 Greece Kyriakides Georgopoulos Law Firm: Elisabeth Eleftheriades Published by Global Legal Group Ltd. & Kimon Tsakiris 81 59 Tanner Street London SE1 3PL, UK 13 Hong Kong Deacons: Kwok Kit Cheung 89 Tel: +44 20 7367 0720 Fax: +44 20 7407 5255 14 India Kachwaha & Partners: Sumeet Kachwaha & Dharmendra Rautray 95 Email: [email protected] URL: www.glgroup.co.uk 15 Indonesia Makarim & Taira S.: Heru Mardijarto & Alexandra Gerungan 102 GLG Cover Design 16 Ireland Matheson: Rhona Henry & Nicola Dunleavy 109 F&F Studio Design 17 Japan Nagashima Ohno & Tsunematsu: Naoki Iguchi 118 GLG Cover Image Source iStockphoto 18 Malaysia Skrine: Janice Tay & Richard Khoo 124 Printed by 19 Mexico COMAD, S.C.: Roberto Hernández García Ashford Colour Press Ltd. July 2017 & Adrián Roberto Villagómez Alemán 131 Copyright © 2017 20 Norway Advokatfirmaet Thommessen AS: Jacob F. Bull & Henrik Møinichen 137 Global Legal Group Ltd. 21 Peru Osterling Abogados: Gabriel Loli León & Miguel Delgado Ramos 145 All rights reserved No photocopying 22 Portugal FALM – Sociedade de Advogados, SP, RL: António André Martins ISBN 978-1-911367-62-8 & Joana Maltez 151 ISSN 2054-7560 23 Russia Melnitsky & Zakharov, Attorneys-at-Law: Semion Melnitsky & Olga Kruglova 156 Strategic Partners 24 Serbia Moravčević Vojnović i Partneri in cooperation with Schoenherr: Slaven Moravčević & Ivana Panić 166 25 Singapore Allen & Gledhill LLP: Ho Chien Mien 173 26 South Africa Norton Rose Fulbright South Africa Inc.: Emmanuel Tivana & Daniel McConnell 180 27 Sweden Advokatbyrån Hellgren Linander AB: Bo Linander & Mikael Lindberg 186 28 Turkey TUGA|ARAT Law Offices: Şeref Can Arat & Umut Tuğa 192 29 United Arab Emirates Galadari Advocates & Legal Consultants: Thanos Karvelis & Niel Coertse 200 30 USA Duane Morris LLP: Charles B. Lewis & Jeffrey L. Hamera 207 31 Zimbabwe Wintertons Legal Practitioners: Edmore Jori & Farai Chigavazira 215 Further copies of this book and others in the series can be ordered from the publisher. Please call +44 20 7367 0720 Disclaimer This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice. Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication. This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations. WWW.ICLG.COM Chapter 28 Turkey Şeref Can Arat TUGA|ARAT Law Offices Umut Tuğa Building and Engineering Works Designed by the Contractor, 1 Making Construction Projects also known as the Plant and Design-Build Contract; and c) The Silver Book – Conditions of Contract for Engineering, 1.1 What are the standard types of construction contract Procurement and Construction/Turn-key projects also known in your jurisdiction? Do you have contracts which as the EPC/Turn-key Contract. place both design and construction obligations upon We have been involved in EPCM or management contracting contractors? If so, please describe the types of arrangements in the Turkish construction industry, but these are not contract. Please also describe any forms of design- as commonly used. only contract common in your jurisdiction. Do you have any arrangement known as management contracting, with one main managing contractor 1.2 Are there either any legally essential qualities needed and with the construction work done by a series to create a legally binding contract (e.g. in common of package contractors? (NB For ease of reference law jurisdictions, offer, acceptance, consideration throughout the chapter, we refer to “construction and intention to create legal relations), or any contracts” as an abbreviation for construction and specific requirements which need to be included in a engineering contracts.) construction contract (e.g. provision for adjudication or any need for the contract to be evidenced in writing)? The most commonly used standard types of contracts in Turkey are those that are drafted for construction work in the public sector. Legally essential qualities needed to create a legally binding contract Annex 7 “Standard Contract for Construction Works” of the General in Turkey are set out in the general provisions of the Turkish Code Specifications for Construction Works is the leading example. It is of Obligations (Law No. 6098) (hereinafter to be referred to as drafted in accordance with Public Procurement Law No. 4734 and “TCO”). A legally binding contract should entail the reciprocal and the Public Procurement Contracts Law No. 4735. matching (either explicit or implicit) declaration of intents of the Law No. 4735 allows for different types of contracts such as: contracting parties, pursuant to Article 1 of the TCO. This principle also applies to construction contracts. ■ Turnkey – Lump Sum Public Procurement Contracts as regulated under Article 6-a; There is no statutory requirement for construction contracts to be ■ Unit Price Public Procurement Construction Contracts as created in writing; with certain exceptions such as a frequently used regulated under Article 6-c; and type of construction contract where the contractor is reimbursed for his/her works via transfer of part of the ownership in the land. ■ Combined Public Procurement Construction Contracts which In this case, the contract validity is subject to being certified by a combine the aforementioned two and are regulated under Article 6-b. notary public. Construction contracts signed pursuant to the State Procurement Law and the Public Procurement Law are also subject Annex 7 may be modified to suit all contract types listed. Since to written form. these form contracts are issued for public tenders, the terms are That being said, Article 200 of the Code of Civil Procedure (Law typically non-negotiable subject to certain exceptions. No.6100) (hereinafter referred to as “CCP”), stipulates that any Other than these, unlike some jurisdictions, the use of standard legal transaction beyond 2,500 Turkish Lira must be proved by a forms such as JCT, NEC and ICE are exceptionally rare in the deed. Considering that the above mentioned rights with regard to Turkish construction sector. a construction contract will almost always be above such monetary Whereas the use of FIDIC (International Federation of Consulting threshold, it is strongly recommended that all construction contracts Engineers) forms in public and private sectors has incrementally be drafted in written form. increased within the last decade. This is particularly the case in the EU funded projects known as IPA (Instrument for Pre-accession Aid). 1.3 In your jurisdiction please identify whether there is The most commonly used FIDIC forms (from the 1999 Edition of a concept of what is known as a “letter of intent”, in the FIDIC ‘Rainbow Suit’ of forms) in Turkey are: which an employer can give either a legally binding or non-legally binding indication of willingness either to a) The Red Book – Conditions of Contract for Construction, for enter into a contract later or to commit itself to meet Building and Engineering Works Designed by the employer, certain costs to be incurred by the contractor whether
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