Recent Developments
The Ministry of Trade of the Republic of Turkey introduced the Draft Law on Electronic Checks and Promissory Notes (the “Draft Law“) proposing the use of electronic checks and promissory notes. The Draft Law is expected to enter into force on January 1, 2020.
What’s New?
- If the Draft Law enters into force, checks and promissory notes can be issued, endorsed and paid electronically. For these transactions, besides the systems within banks, an Electronic Checks and Promissory Notes System (Elektronik Çek ve Bono Sistemi (“ÇEBİS“)) will be established to enable interaction between banks’ systems.
Electronic Checks
- Different from regular checks, electronic checks must bear (i) the expression “electronic check”; (ii) the start date for electronic submission; and (iii) the account owner’s secure electronic signature or identity register generated by electronic identity verification.
- Payees, endorsees and avalists will be able to run a comprehensive check on the account owners, previous endorsers and avalists’ identities, amount of outstanding and dishonored checks, and other details of their check history until the end of the electronic submission period without obtaining their consents.
- Electronic checks will be issued via the drawee bank’s system or be endorsed by the endorser’s bank system. Payees and endorsees will be able to approve the electronic check via any of its bank’s systems until the start date of the electronic submission. The approval will be considered as the transfer of possession.
- Until approved, the drawer can amend or revoke electronic checks.
- Electronic checks cannot be bearer checks, cross checks or open checks. Endorsement of pawns or blank endorsements are also prohibited.
- Electronic checks can be submitted for payment within ten days after the start date of the electronic submission. For due submission, electronic checks may be submitted (i) for swap via the system of any bank where the payee has an account; (ii) directly to the drawee bank via ÇEBSİS; or (iii) physically with the check’s serial number.
- If the check is submitted and funds are unavailable for whatever reason, the drawee bank will be responsible for partial payment in accordance with the Check Law No. 5941. In that case, ÇEBSİS will be notified of the failure to pay and the amount paid by the drawee bank within the scope of its liability.
- The drawer will be able to back out of the electronic check within seven days from the end of the electronic submission period.
Electronic Promissory Notes
- Different from regular promissory notes, electronic promissory notes must bear (i) the expression “electronic promissory note”; (ii) the serial number given by ÇEBSİS; and (iii) the drawer’s secure electronic signature or identity register generated by electronic identity verification.
- Payees and endorsees will be able to approve the electronic promissory note until its due date via the system of any bank where they have accounts.
- Electronic promissory notes cannot be bearer or blank promissory notes. Registered electronic promissory notes cannot be transferred. Blank endorsements are prohibited.
- Drawers, endorsers and avalists will define their accounts to bank systems for collection; payees and endorsees will define their accounts for payment. Defined accounts will be verified to confirm that they belong to the correct individual and they are appropriate for collection or payment.
- The amount of an electronic promissory note will be paid to the defined account. If the entire amount is not paid on the due date, the amount payable with interest will be directly withdrawn from, in order, the drawer, avalist’s or endorser’s defined accounts the next day.
- If the whole amount cannot be collected, ÇEBSİS will notify the remaining amount to those liable under the electronic promissory note as well as the payee. So, application rights can be used without the need for protest and notification.
Common Provisions
- In case of electronic checks or promissory notes’ attachment, a reservation will be made in ÇEBSİS and accordingly, when the amount is collected, the bank will transfer it to the execution office’s bank account.
- Provisions regarding the enforcement proceedings special to bill of exchanges under the Bankruptcy and Enforcement Law No. 2004 are also applicable for electronic checks or promissory notes.
- ÇEBSİS operator will, by taking the Banking Regulatoryn and Supervisory Authoritiy’s approval, determine the necessary measures for the system’s security and the banks will be obliged to comply with these measures.
Amendments to Turkish Commercial Code
- The Draft Law also introduces amendments to provisions regarding promissory notes under Turkish Commercial Code No. 6102.
- If the Draft Law enters into force, promissory notes will have to bear the drawer’s identity number or MERSİS number.
- Further, 2D code, which became mandatory for checks as of December 31, 2016, will be used for promissory notes as well. Payees of promissory notes will be able to run a comprehensive check on the drawer’s identity, protested promissory notes and other details of their promissory notes history.
- The 2D code requirement will not apply to promissory notes issued abroad by non-Turkish residents.
- A lack of the 2D code in the promissory notes issued up until January 1, 2021 will not invalidate the related promissory note.
Conclusion
The Draft Law provides electronic applications to ease and accelerate the use of checks and promissory notes, and increases the reliability of the associated transactions.
