Expert Guide on Use of outsourced IT personnel in Turkiye

Yes.

Yes.

Yes. 

Yes, common. 

Yes. 

Low to high. The re-qualification risk would be relevant if the company treats the contractor on a day-to-day basis as an employee; in particular, if the company instructs the contractor when and how to perform the tasks, provides the necessary instruments to perform these tasks, issues binding work orders and subjects him/her to close supervision, etc. These criteria are examined by the Supreme Court on a case-by-case basis to determine the dependence of the person who performs these tasks and whether they should be treated as a party to an employment relationship.

No. 

N/A

No. 

Yes, not recommended. This may cause the leased property to be considered a workplace, which may result in the company generating income from the workplace and thus as the company earning income in Turkey. Accordingly, the earnings and income resulting from activities performed in Turkey would be taxed accordingly.

Yes, with an agreement.

Service agreement, IP assignment agreement.

Service agreement, IP assignment agreement.

Yes.

It is possible to determine the amount of contractual consideration and other payment obligations under the contract in a foreign currency or based on a foreign currency if one of the parties is a company that has its corporate residence outside Turkey and becomes a party to the contract as an employer, or a client receiving the services through its branches, representatives, offices, companies which they directly or indirectly own over 50% or companies they co-control or control, or companies incorporated in free-trade zones to the extent of their operations in the free-trade zone.

No.

Moral rights are not transferable according to the Law on Intellectual and Artistic Works and an author of a work can exercise moral rights even after the material rights have been transferred. However, an author may grant a licence to third parties enabling them to use the moral rights.

No.

According to the provisions of the Law on Intellectual and Artistic Works, unless otherwise stated in or interpreted from the relevant agreement, rights pertaining to intellectual property created during employment may be used by employers. This also applies to the administrative bodies of legal entities. Concerning intellectual property created in a working relationship, whether or not the above provision applies to a work-for-hire scheme depends on determining if the working relationship stems from an employment agreement. If there is no employment relationship, then the provision does not apply.

IP assignment agreement.

Yes. 

Generally yes, however it depends on the wording. If the service agreement is requalified as an employment agreement, provisions under the Turkish Code of Obligations (“TCO”) apply to regulate the relationship. Under the TCO, noncompetition does not include restrictions on the territory, time or type of work which would endanger the employee’s economic conditions, which are against the principle of fairness, and must not exceed two years. While only noncompete obligations are regulated in detail under the TCO, the Court of Appeals accepts that non-solicitation and confidentiality covenants should also be interpreted within the scope of the regulations on noncompete covenants.

Yes. 

If the agreement is requalified as an employment agreement, then, as stipulated under Article 27 of the International Private and Civil Procedure Law, employment contracts are subject to the laws of the parties’ chosen jurisdiction, except for the employee’s minimum right to retention/protection under the imperative provisions of customary employment law.

Yes.