About

What geographical area does the team cover and what challenges have you faced when covering multiple jurisdictions in the region?

We cover all geographical areas that the Company either operates in or is interested in operating in. Currently, the company operates in 10 different jurisdictions from Indonesia to Cuba, and is interested in further developing its operations in Southeast Asia, Latin America and South Africa. The vast number of jurisdictions mean that the legal team needs to familiarise itself with different legal systems and work with local lawyers in all of them. It requires coordination between different jurisdictions and different teams and the ability to negotiate and perform contracts in all these geographical areas. Language barriers and travelling schedules form only a small part of the challenges that we face. The main challenge is always being able to adapt to the culture of the host country. The cultural rituals and expectations that come with it play an important role especially during the negotiation of the contracts. We need to be able to understand the real meaning that is usually hidden behind a gesture or a spoken word, and direct our negotiation accordingly. It is also a major challenge to try to understand the legal structure of the country, especially in countries where there is no sufficient legal support. This usually requires engaging with more than one local lawyer and also finding other consultants who will be able to assist with tax and other regulatory issues.

What are the most important transactions and litigations that you have been involved in during the last two years?

The most important litigation/arbitration I’ve been involved in relates our company’s ongoing dispute with Pakistan. One of our group companies, Karkey, initiated investment arbitration before the ICSID against Pakistan in 2013. The award was rendered in 2017. However, for the last two years, we have been going through an annulment process, a revision process (both before ICSID) and also enforcement proceedings in three different countries. One arbitration turned into several new arbitrations and legal proceedings after the award was rendered. However, we are in the process of complete settlement, which we hope to achieve soon.

The most important transactions were the new joint venture agreements we entered into with Mitsui Osaki Lines (MOL) for our powership in Mozambique, and for floating storage and regasification units to be used in Mozambique and Senegal. The partnership with MOL has been the company’s first partnership in a power project, and we hope to continue to work together with MOL in different locations.

What will be the main focus for the company in the next 12 months and how do you intend to assist with this?

In the next 12 months, we will be focusing on Southeast Asia and South Africa. For both of these projects, we are getting ready by doing initial due diligence of the target countries and trying to find the right local lawyers that will be able to assist us during the process. I will lead both the in-house and outside legal counsel throughout, and will create a bridge between the company’s top management and the relevant legal teams.   

What do you feel is the best way to get more women into in-house legal leadership positions?

As a woman, I know the difficulties that women face in a work environment, especially after they become mothers. Therefore, I believe that child care should be provided by companies to mothers and fathers who have kids that are too young to go to school. Once the women are able to ease their minds with regards to the well-being of their children, they will be able to concentrate more easily on their jobs and work more efficiently. The legal profession in Turkey already encompasses many female lawyers, and other than child care, there is nothing that will stop them from pursuing leadership positions in the legal teams.

What is currently missing from law firm services that would benefit their corporate clients?

In Turkey, the law firms are very much focused on Turkish law. For companies, such as ours, which are head quartered in Turkey, but actually operate abroad, it is difficult to get legal advice from Turkish law firms. They usually lack the global connections that are required for us to be able to carry out our business. Therefore, I believe that Turkish firms need to form wider alliances not only with firms based in Europe and the USA, but also with firms that are based in different parts of the world.

FOCUS ON: The reality of enforcement

Usually, we are led to believe that once an arbitration is over, we will have an award and the enforcement of the award will be a piece of cake. However, experience has shown completely otherwise. In the last five years, we went through two arbitrations, one commercial and one investment, both of which were concluded in our favour. We decided to immediately start recognition and enforcement proceedings, but what we were faced with was nothing like what we had been told.

For the enforcement of the commercial arbitration award, we initially applied to the court where the defendant was registered, but the court refused jurisdiction and directed us to apply to a different court. We did as we were told, but again the second court refused jurisdiction, and directed us yet to a third court. Finally, we managed to pass the jurisdiction test, but this time the court insisted on getting a finalization of dispute statement from English court since the award was issued in London However, there was no appeal to English courts, and the English courts had no process of providing us with such a statement with regards to a matter that never appeared before them. Therefore, we had to hire barristers and solicitors that would be able to provide us with some kind of a document that would be acceptable to the Turkish court. This made me wonder whether making the arbitration award final and binding in the arbitration agreement was actually a good idea or not. In any event, we were lucky because the defendant did not hire a lawyer that would object to what we had submitted to the court, so we managed to get our recognition. It look us one and a half years to get the arbitration award, but it took us more than three years to get the award recognised.

The enforcement of the investment arbitration award in different jurisdictions was almost an impossibility. First of all, most countries want you to show them an asset which belongs to the defendant and which could be subject of the enforcement. Finding such a commercial asset of a state is no easy task. Secondly, most countries also want the award to be translated into their local language. The translation costs of a three hundred page award might not be too high, but the requirement to pay stamp tax for the notarized translation becomes an issue when you have a very high value award. Therefore, even starting recognition and enforcement proceedings in those jurisdictions was not a possibility. In other jurisdictions, even though ICSID awards theoretically do not need to go through a recognition process, a registration is needed, which in practise turns into a recognition. The state is able to use all the defences that are available including state immunity. In two years, we were only able to get the award registered in one jurisdiction. In all the others, the process is still ongoing with no expectation of any near future resolution.

We have gone through recognition and enforcement proceedings in the US, in different countries in Europe and in Turkey. In all our experiences, the process is difficult and time consuming. It also makes the legal team look incompetent in the eyes of the management for not being able to enforce an award that is already rendered. Therefore, once an award is issued, it is probably a much better idea to use the arbitration award as a leverage and try to reach a settlement with the counter party rather than trying to enforce the award against them.