In the globalizing world, it has become common for countries to mutually invest in each other. For this reason, bilateral or multilateral international agreements were signed in order to secure investments and it was aimed to increase the efficiency of arbitration as an optional judicial remedy.
Countries had reservations due to reasons such as the length of the bureaucratic procedures to go to the national courts, the lack of expertise, and the limited activities of national courts in the international arena. The fact that national courts are also hesitant about the recognition and enforcement of foreign court decisions is one of the reasons why countries tend to arbitration.
In our legislation, national arbitration is regulated in the Code of Civil Procedure, while the enforcement of foreign arbitral awards is regulated in the Turkish Code on Private International Law and International Civil Procedure (CPIL).
As a result of all these, disputes arising from concession terms and contracts regarding public services that have a foreign element and in addition, in order to determine the procedures and principles for the settlement of disputes between real or legal persons through international arbitration The International Arbitration Law No. 4686 was prepared on the basis of the law sample prepared by the United Nations Commission On International Trade Law (UNCITRAL) and the understanding and principles in comparative international arbitration law.
The purpose of the law is to regulate the procedures and principles regarding international arbitration. This law involving foreign elements and covers the seat of the arbitration disputes as determined as Turkey and the disputes where the provisions of the law are ed by the parties or the arbitrator or arbitration board. As a result, the parties are free to agree to determine the rules governing the arbitration proceedings.
Although the place of arbitration outside Turkey, this law will also be applied in cases of arbitration objection and agreement in court and in cases of injunction or precautionary attachment. However, in case of disputes not subject to the will of the two parties with disputes related to real rights on real estates in Turkey will not find this area of law enforcement.
Foreseeing the resolution of disputes arising from the concession contracts regarding public services through international arbitration depends on the presence of a foreign element. Therefore, in accordance with the Law No. 4501 dated 1.1.2000 on Principles to be Obeyed in the Event of Resorting to Arbitration in Disputes Arising from Concession Agreements and Contracts Regarding Public Services resolution of disputes arising from concession, terms and contracts regarding public services where there is a foreign element is also within the scope of this law.
The International Arbitration Law also includes regulations regarding the arbitration agreement. An agreement between the parties to settle all or some of the disputes that may arise in the future or arise from an existing legal relationship between them, whether from the contract or not, is defined as an arbitration agreement. This agreement can be concluded with the arbitration clause placed in the main contract or a separate contract. Since this agreement is the basis for arbitration, it is a condition of validity if this agreement is made in writing. The arbitration agreement will be valid if it is in accordance with the law chosen by the parties to be applied to the arbitration agreement or, if there is no such choice of law, in accordance with Turkish law.
The parties cannot object against this agreement that the original contract is invalid and that the arbitration agreement is related to a dispute that has not yet arisen.
In a dispute that is the subject of an arbitration agreement, if the case has been filed in court, an arbitration objection can be made by the other party. Provisions of the Code of Civil Procedure regarding preliminary objections shall be applied in the filing of the arbitration objection and the settlement of the disputes regarding the validity of the arbitration agreement. In case of acceptance of the arbitration objection by the court, the case will be rejected procedurally.
The method of ing arbitrators is specified in the law. It is stated that although the ion procedure of the arbitrators is determined by the parties, if the arbitrator cannot be ed, the ion of the arbitrator or the arbitral tribunal can be made by the court of first instance upon the request of one of the parties. The points to be taken as basis in this ion are explained.
The parties can freely determine the jurisdiction rules to be applied in the arbitration by the arbitrator or the arbitral tribunal. In this determination, the parties may refer to a law, international or institutional arbitration rules. If the parties have not made any agreement on this matter, the arbitration proceedings will be conducted in accordance with this Law.
Only annulment action can be filed against the arbitrator's decision in the competent court of first instance. This case will be discussed with priority and immediately. At least one of the reasons specified in Article 15 of this Law may be based on the annulment action. These reasons cannot be excluded.
The annulment action is opened within thirty days from the date of the arbitration's decision or the notification of the correction, comment or completion decision to the parties. The filing of the annulment case automatically stops the execution of the referee decision. The parties may completely or partially waive from filing an action for annulment.
Only an appeal is possible against the decision at the end of the case. The appeal review is also limited for the reasons listed in Article 15 and is resolved immediately and priorty.
The provisions of the Code of Civil Procedure will be applied in cases where explicit submissions are made in matters regulated by this Law. In other words, unless there is a provision to the contrary, the provisions of the Code of Civil Procedure (CCP) will not be applied.
Court of Cassation Decisions
15th Civil Chamber Case No:2019/2759, Decision No:2020/685 Decision Date:20.02.2020
“The case is about the request for the determination that the other party's re-application to arbitration after the annulment decision of the arbitral award is finalized constitutes a violation of Article 439/2 of the CCP. The decision of the …. Regional Court of Appeal regarding the rejection of the appeal on the merits was appealed by the plaintiff's attorney, after the plaintiff filed a legal remedy against the decision of the court of first instance regarding the dismissal of the case.
In Article 67/2 of the contract between the parties, it is agreed by the parties that any dispute that may arise from the contract will be arbitrated in accordance with the International Arbitration Law No. 4686. It is considered as one of the annulment reasons for the decision that it is illegally authorized or unauthorized in subparagraph 15-A.1.d of the aforementioned Law. Since the authority to decide whether the arbitrator or the arbitral tribunal is authorized or unauthorized belongs to the arbitral tribunal, there was no hit in the first instance court's rejection with a written justification instead of the rejection of the case for lack of legal benefit Since the rejection decision is correct as of the result of the rejection decision, the reason for the rejection in accordance with Article 370/4 of the Code of Civil Procedure numbered 6100 is changed in this way and APPROVED by revising the decision as amended..…”
19th Civil Chamber Case No:2017/279, Decision No:2018/6234 Decision Date:03.12.2018
“The plaintiff's attorney stated that a sales contract was signed with the defendant dated 22.04.2014, accordingly the defendant agreed to purchase the ... originating product specified in the contract at the port of ..., and the plaintiff kept the ship ready in accordance with the contract, defendant did not receive the product by waiting until 27.05.2014 and did not pay the invoice price, the product was sold to another buyer and the plaintiff had to make an incomplete collection.davalının 27.05.2014 tarihine kadar bekleyerek ürünü almadığını ve fatura bedelini de ödemediğini, ürünün başka bir alıcıya satıldığını, davacının eksik tahsilat yapmak durumunda kaldığını, The plaintiff's attorney claimed that he had to pay demurrage-detention due to the waiting of the ship and demanded that some amount of his receivable be paid to the plaintiff from the defendant in return for the damage he/she suffered.
The defendant counsel stated that Turkish courts do not have international jurisdiction under the Arbitration Rule No: 125 in the contract. The defendant attorney stated that the case was sent to the arbitral tribunal in London and the product brought by the plaintiff did not meet the contract criteria. The defendant's attorney demanded the dismissal of the case, arguing that the value of the invoice submitted by the plaintiff was not true, that the defendant could not be forced into defective performance, and that the defendant was also damaged due to the defective product.
The court decided to dismiss the case on the grounds that there is an arbitration clause of the sales contract dated 22.04.2014 and numbered ..., that the dispute will be resolved through arbitration and that the arbitration conditions are shown. The sentence was appealed by the plaintiff's attorney.
According to the evidence on which the decision is based on the articles in the file and the necessary reasons, to the rejection of all appeal appeals that are not seen in place by the plaintiff's attorney and the APPROVED of the judgment…..”