1) Why the “legal nature” question matters in BOTAŞ contracts

Parties sign contracts with BOTAŞ for very different reasons: long-term natural gas supply, LNG regasification and storage services, capacity booking in the transmission network, balancing and nomination arrangements, pipeline construction, compressor station works, engineering services, or strategic infrastructure cooperation. These deals can look similar on paper—price, volume, delivery point, penalties, security—but their legal character may not be the same.

In Turkish practice, the legal character of a contract affects almost everything that becomes critical when the relationship turns contentious:

• Which court (or tribunal) has jurisdiction: civil/commercial courts, administrative courts, arbitration.
• Which law and principles govern: Turkish Code of Obligations (private law) vs administrative law concepts (public service, public power privileges, unilateral modification/termination).
• How interim measures are handled and whether enforcement can be accelerated through public powers.
• How risk allocation is interpreted (force majeure, change in law, tariff changes, capacity curtailment, regulatory intervention).
• How termination and damages are calculated and whether limitation periods differ.

BOTAŞ sits at the intersection of market activity and public policy. On one side, it is a state-owned enterprise operating in commercially sensitive markets; on the other side, it runs strategic infrastructure and must comply with a tightly regulated natural gas framework. A proper legal analysis starts with the institutional status of BOTAŞ and the regulatory environment in which the contract is performed.

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2) BOTAŞ as a state economic enterprise: the “private law baseline” with public-law overlays

BOTAŞ is generally characterized as a public economic enterprise / state economic enterprise (KİT), and Turkey’s KİT framework is rooted in Decree-Law No. 233. Under that framework, enterprises have legal personality and—except for matters reserved by the decree—are subject to private law provisions. (LEXPERA)

This baseline matters: many BOTAŞ contracts (especially commercial supply and services) are drafted and performed as private-law contracts, even if the counterparty feels like it is dealing with “the state.” At the same time, BOTAŞ operates within the Natural Gas Market Law regime, which shapes network access, market conduct, and the rules of the sector. (LEXPERA)

The practical conclusion is:

• Not every contract signed by BOTAŞ is automatically an “administrative contract.”
• The legal character depends on the function of the contract (public service vs commercial), the source of authority (statutory mandate vs free commercial negotiation), and whether the contract includes public power privileges (unilateral modification, sanctions, termination powers, or special enforcement tools).

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3) Turkish doctrine: how courts distinguish administrative contracts from private contracts

Turkish administrative law traditionally distinguishes between:

• Private-law contracts of the administration (the administration acts like an ordinary market actor), and
• Administrative contracts (public service contracts where the administration uses public power and the contract contains special clauses reflecting public authority).

Academic discussions emphasize that an agreement can be classified as an administrative contract either because legislation expressly says so, or because its content and function show it is tied to a public service and includes public power features. (DergiPark)

In practical terms, the following factors are commonly decisive:

1. Public service link: Is the contract essentially a tool to perform a public service (network operation, regulated access) rather than a purely commercial exchange?
2. Public power clauses: Does BOTAŞ have unilateral rights that go beyond ordinary private-law termination or variation clauses?
3. Regulatory standardization: Are the contract terms fixed/mandated by sector rules or approved network codes, leaving little negotiation?
4. Dispute forum designation: Does the contract refer disputes to civil courts/arbitration, or does it tie disputes to administrative complaint mechanisms and administrative jurisdiction?
5. Tariff and access obligations: Does BOTAŞ have a legal duty to provide access under regulated terms (suggesting a “regulated relationship” rather than a free market negotiation)?

BOTAŞ contracts can fall anywhere on this spectrum, which is why one-size-fits-all drafting is dangerous.

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4) A practical typology of BOTAŞ contracts and their “likely” legal character

4.1 Cross-border gas purchase / import and long-term pipeline/LNG supply contracts

These include long-term natural gas purchase agreements (often with take-or-pay logic) and sale arrangements linked to import and strategic supply. While the Natural Gas Market Law provides the sector framework, many of these contracts are drafted as commercial agreements—with negotiated pricing formulas, currency terms, delivery points, and dispute resolution via arbitration (frequently international arbitration in cross-border contexts).

Even where public policy and security of supply are central, the contract’s character is usually private-law unless a specific statute turns it into a public-service concession (which is uncommon for pure commodity supply). The “publicness” often appears not in the contract type but in regulatory constraints (export controls, sanctions compliance, or domestic market allocation rules).

Drafting focus (investor-side):

• price review clauses with objective triggers,
• currency/convertibility and payment security,
• change-in-law and sanctions allocation,
• force majeure definition that captures upstream pipeline interruptions,
• arbitration seat and enforcement strategy.

4.2 Domestic wholesale gas sales agreements (BOTAŞ as supplier to distributors, generators, eligible consumers)

Domestic supply agreements often sit between a negotiated commercial contract and a standardized regulated relationship. Pricing may be influenced by policy and tariffs, while operational obligations (nominations, delivery profiles, balancing) must align with network rules.

Because BOTAŞ is a market participant and the arrangements concern supply, the legal character typically leans private-law, but disputes frequently carry regulatory dimensions: a party may combine contractual claims with regulatory complaints.

Drafting focus:

• nomination and delivery tolerance rules,
• imbalance settlement references,
• price adjustment and extraordinary event mechanisms,
• termination triggers tied to regulatory events (license changes, market restrictions).

4.3 Transmission network access and capacity arrangements (ŞİD / network code driven relationships)

This is where “legal nature” becomes more complex.

BOTAŞ operates the transmission network and uses network operating rules and structured arrangements to define rights and obligations of shippers and other parties. BOTAŞ itself defines ŞİD as the set of principles prepared under the Natural Gas Market Law and related legislation to record the rights and obligations of parties related to transportation via the transmission network. (botas.gov.tr)

EPİAŞ also hosts documents titled as principles for BOTAŞ transmission network operation (ŞİD-related materials), indicating standardization and non-discrimination requirements in application. (epias.com.tr)

This type of relationship often resembles a regulated access contract: the content is not fully negotiated like a private supply contract; it is shaped by network rules and sometimes by regulatory approvals. Whether a specific access arrangement is treated as private-law or administrative-law can turn on the presence of unilateral public power clauses and on how Turkish courts treat network access documentation in the relevant dispute.

Practical risk note: even if a transmission access agreement is drafted in a contract format, many of its key terms may be treated as mandatory sector rules rather than negotiable private-law promises.

Drafting focus:

• alignment with network code definitions and timelines,
• clear allocation of nomination errors and data quality responsibilities,
• dispute escalation: operational committees → regulatory complaint → litigation/arbitration.

4.4 LNG terminal and storage services (including capacity products)

Service agreements for regasification, storage, send-out, and terminal access share characteristics with transmission access: they often involve regulated infrastructure, technical constraints, and standardized products. The closer the contract is to mandatory access and tariff-driven service, the more it behaves like a regulated relationship.

Drafting focus:

• service availability KPIs and outage handling,
• liability for off-spec gas and measurement disputes,
• force majeure and port/terminal disruptions,
• data, metering, and reconciliation discipline.

4.5 Procurement, EPC, and infrastructure construction contracts (pipelines, stations, equipment)

BOTAŞ runs significant procurement and works contracts. Importantly, BOTAŞ has its own procurement regulations and internal procedures for certain categories, including purchases treated as exceptions under Public Procurement Law Article 3(g), as reflected in BOTAŞ procurement regulations and definitions. (botas.gov.tr)

This means vendor contracts often sit under private-law frameworks (commercial and obligations law), but procurement decisions may be influenced by internal regulations and, in some contexts, specific public procurement exceptions and their constitutional scrutiny have been discussed publicly (including analysis referencing Constitutional Court developments). (Kılıç Çaylı Partners)

Drafting focus for contractors:

• tender compliance and bid security mechanics,
• acceptance, testing, and defect liability,
• price adjustment clauses for steel, FX, transport, sanctions,
• delay LDs and extension-of-time events,
• dispute board / expert determination for technical matters.

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5) The key issue: BOTAŞ can sign private contracts that are “regulated” in substance

Many counterparties assume that if a contract is private-law, the parties are free to allocate risk as they like. In regulated energy sectors, that is only partly true.

BOTAŞ network relationships are embedded in the Natural Gas Market Law framework. (LEXPERA) Contract terms often incorporate or rely on network rules, operational principles, and standardized service definitions (for example through ŞİD frameworks). (botas.gov.tr)

As a result, disputes often turn on this question:

Is the dispute about “contract interpretation,” or is it actually about “mandatory sector rule compliance”?

A payment dispute may look like a contract claim, but if the root cause is a nomination imbalance rule, a network constraint, or a regulatory tariff application, the dispute may require both:

• private-law argumentation (breach, damages), and
• a regulatory record (complaints, determinations, data submissions).

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6) Forum risk: which court hears disputes with BOTAŞ?

There is no universal single answer. It depends on:

1. The legal character of the contract (administrative vs private)
2. Dispute clause (civil courts, arbitration)
3. Nature of the contested act (is it a unilateral administrative act—e.g., a permit or sanction—or a contractual performance dispute?)
4. Whether the claim challenges a regulatory decision (which typically belongs in administrative jurisdiction)

Practical guidance

• Pure commercial disputes (price, payment, delivery, warranties, LDs) usually land in civil/commercial courts or arbitration, depending on the clause.
• Challenges to regulatory acts, approvals, sanctions, or mandatory market rule determinations usually require administrative litigation (often alongside contractual strategies).
• Network access disputes can become mixed disputes: contractual framing + regulatory complaint pathway.

Because the Natural Gas Market Law and related network documentation structures define rights and obligations for transmission, the regulatory pathway can be decisive even where the immediate dispute is contractual. (LEXPERA)

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7) Contract design: clauses that most often decide outcomes in BOTAŞ relationships

Below are the clauses that typically “pay for themselves” in BOTAŞ-facing deals.

7.1 Regulatory change and change-in-law mechanism

Türkiye’s energy rules evolve. Your contract should define:

• what constitutes a change in law (statute, regulation, regulator decision, network code revision),
• how cost/time impacts are allocated,
• a renegotiation timetable,
• and a deadlock solution (expert determination or arbitration).

This is especially important in infrastructure service contracts where tariffs and access rules can be revised through regulatory processes.

7.2 Measurement, metering, and data governance

Most gas disputes are evidence disputes. Strong contracts include:

• precise measurement point definitions,
• calibration and verification rules,
• data transmission obligations,
• reconciliation timelines,
• audit rights, and
• an expert procedure for metering disagreements.

7.3 Nomination, balancing, and interruption rules

For shippers and large consumers, the operational core is:

• nomination windows,
• tolerance bands,
• imbalance charges,
• curtailment and interruption handling,
• priority rules in emergencies.

Where these are driven by network rules (ŞİD), the contract should incorporate them by reference clearly and allocate operational responsibilities (who submits, who validates, who bears consequences). (botas.gov.tr)

7.4 Force majeure, government action, sanctions

A BOTAŞ contract may be affected by:

• upstream supplier force majeure,
• pipeline disruptions,
• port restrictions,
• sanctions and export controls,
• security zone restrictions.

Define:

• notice requirements,
• mitigation obligations,
• partial performance rules,
• cost vs time relief,
• termination long-stop dates.

7.5 Security package and credit support

Especially for long-term supply and service agreements:

• bank guarantees,
• parent guarantees,
• advance payment structures,
• set-off limitations,
• early termination payment formulas.

If the counterparty is a foreign entity, also consider:

• authority/signature validity,
• service of process,
• enforcement and asset location.

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8) Strategic due diligence for investors: what to check before buying a BOTAŞ-exposed business

If you are acquiring a distribution company, a large industrial portfolio, an LNG/storage project, or a trading platform with exposure to BOTAŞ contracts, treat the following as “core diligence”:

1. Contract classification memo: supply vs access vs procurement; identify which ones are standardized/regulated.
2. Regulatory dependency map: which obligations depend on network rules, tariffs, or regulator decisions. (LEXPERA)
3. Dispute forum audit: civil vs arbitration vs administrative; check if clauses are consistent across the contract stack.
4. Operational evidence readiness: nomination logs, imbalance statements, metering calibration files, outage notices, correspondence.
5. Termination and step-in readiness: if financed, ensure the lender’s rights don’t collide with regulated constraints.
6. Procurement exposure: for major infrastructure contractors, review BOTAŞ procurement regime references and exception-based procurement rules that may affect tender risk allocation. (botas.gov.tr)

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9) How to frame disputes with BOTAŞ: a practical playbook

Step 1: Identify whether you have a “contract dispute” or a “regulated dispute”

If your issue is rooted in network code application (capacity, nomination, imbalance), build a parallel record:

• internal technical report,
• formal correspondence,
• and (where appropriate) a regulatory complaint track.

Step 2: Freeze evidence early

For gas disputes, the most valuable evidence is time-sensitive:

• SCADA / metering exports,
• nomination submissions,
• operator messages,
• daily allocation statements.

Step 3: Use technical expert determination where possible

Many disputes settle quickly if the parties accept an independent expert on:

• measurement and allocation,
• gas quality and off-spec consequences,
• pipeline constraints and curtailment causation.

Step 4: Choose forum and remedy with a timeline mindset

• If you need rapid interim relief, design your strategy around enforceability.
• If the contract has arbitration, plan how you will enforce interim measures in Türkiye if needed.
• If administrative litigation is required, build the “clear unlawfulness + irreparable harm” story early (for interim relief requests).

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Conclusion: the safest statement about BOTAŞ contracts is “it depends”—but you can control the risk

BOTAŞ’s legal identity as a KİT generally points to a private-law baseline for many contracts, while the Natural Gas Market Law and network rules introduce regulatory overlays that can make certain relationships function like regulated access arrangements. (LEXPERA)

For clients, the best approach is not to argue labels after a dispute arises. It is to design contracts and compliance systems so that:

• the dispute forum is predictable,
• the evidence trail is audit-ready,
• regulatory changes are handled through defined mechanisms,
• and operational responsibilities (nominations, measurement, balancing) are allocated in a way that aligns with BOTAŞ network and market rules.

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