Arbitraje

Arbitration

Arbitration, which is one of the alternative dispute resolution methods, is now finding application in various fields of law.

Arbitration is the decision of the parties to leave the resolution of the dispute to the arbitrator or arbitral tribunals that they will determine with a written arbitration agreement to be concluded for the matters, the resolution of which is not necessarily given to the jurisdiction of courts.

There are several arbitration practices applied in Turkey:

1. National arbitration,
2. International arbitration,
3. Foreign arbitration.

There is no element of foreignness in national arbitration and the arbitration provisions of Code of Civil Procedure apply.

International arbitration, on the other hand, involves an element of foreignness and includes disputes resolved in accordance with the International Arbitration Law Number 4686.

Foreign arbitration is a type of arbitration conducted in foreign countries according to foreign rules agreed by the parties.

Another arbitration distinction is the institutional arbitration and ad-hoc arbitration.

Institutional arbitration is a type of arbitration in which certain institutions conduct predetermined rules and compliance with these rules is supervised by these institutions.

In the ad-hoc arbitration type, the dispute is resolved by the arbitrator or arbitrators within the framework of the rules determined by the parties.

Advantages of arbitration proceedings:

It offers a more stable and secure solution to commercial disputes between traders.

In arbitration proceedings, the dispute is resolved by experts who know the subject well.

The arbitration proceedings are concluded in a shorter time than the proceedings in court.

By amending arbitration agreements, the parties may determine the procedure of the proceedings according to their own wishes and needs.

Arbitration Proceedings in the Code of Civil Procedure:

1. The arbitration rules of the Code of Civil Procedure shall apply to disputes that do not involve an element of foreignness and where the place of dispute is determined as Turkey.
2. Disputes arising from real rights over immovable properties or from works not subject to the will of both parties are not eligible for arbitration.
3. If there is no compliance with a provision or arbitration agreement that the parties may decide otherwise, the relevant party may appeal the contrary situation.
4. If the party concerned continues the arbitration without objection within 2 weeks from the date on which it noticed the discrepancy or within the period agreed by the arbitrators in this regard, the right to appeal shall be deemed to have been waived.
5. In the case of arbitration, the competent court for the work specified to be performed by the Court shall be the district court of justice.
6. In the event that the place of arbitration has not been determined, the competent and authorized court shall be the regional court of the respondent’s place of residence, domicile or workplace in Turkey.

Arbitration agreement:

The arbitration agreement may also be concluded as a provision of the contract between the parties or in the form of an independent contract.

The arbitration agreement is subject to the written form requirement. In order for the written form requirement to be deemed to have been fulfilled, it is sufficient that the arbitration agreement has been executed as a written document signed by the parties or into the means of communication such as letters, telegrams, faxes exchanged between the parties or made in electronic media, or that the existence of a written arbitration agreement in the lawsuit petition has not been objected in the reply petition filed by the defendant.

In the event of a reference to a document containing an arbitration clause in order to make it a part of the original contract, the arbitration agreement shall be deemed to have been concluded.

No objection can be raised against the arbitration agreement by alleging that the original contract is not valid or that the arbitration agreement relates to a dispute that has not yet arisen. If the parties agree to apply for arbitration during the trial, the case file is sent by the court to the relevant arbitrator and arbitral tribunal.

Arbitration plea:

If a dispute that constitutes the subject of the arbitration agreement has been filed in court for resolution, the opposing party may file an initial objection to the arbitration. In this case, if the arbitration agreement is void or unenforceable, the court accepts the first objection to the arbitration and dismisses the case without prejudice. Raising an arbitration objection shall not constitute an impediment to the arbitral proceedings.

Cancellation of arbitral awards:

Only action for annulment may be filed against arbitral awards. The annulment action is filed in the court at the place of arbitration; it is heard firstly and urgently.

Arbitral awards may be annulled in the following cases:

1. In cases that one of the parties to the arbitration agreement is incompetent or the arbitration agreement is invalid,
2. Due to the reasons that the procedures and principles stipulated in the agreement or selection of the arbitrator or the arbitral tribunal are not complied with,
3. Due to the reason that the decision was not made within the arbitration period,
4. In cases which it is decided that the arbitrator or arbitral tribunal is illegal, unlawful or not competent,
5. Where the arbitrator or arbitral tribunal has made a decision that falls outside the arbitration agreement or has not decided on the entire claim, or exceeded its authority,
6. In cases where the arbitration proceedings are not carried out in accordance with the provisions of the arbitration, or in the absence of a provision in the agreement and that affects the merits of the decision,
7. If the principle of equality of the parties and the right to legal hearing are not respected,
8. In cases where the dispute subject to the decisions of the arbitrator or arbitral tribunal is not suitable for arbitration in accordance with Turkish law,
9. Where the decision is contrary to public order,

The cancellation case can be filed within 1 month. This period shall commence from the date of notification of the arbitrator’s decision, decision of clarification or correction or completion to the parties.

The filing of an annulment action against the arbitral awards does not stop the execution of the decision; however, at the request of one of the parties, the execution of the decision may be suspended provided that a guarantee is given to cover the value of the money or property decreed.

An appeal can be filed against the decisions made in the annulment case.

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Lawyers employed by Gulis Law and Counseling Office are definitely not responsible for the accuracy or completeness of the information given here. Given that information, laws and stare decisis may abruptly change, the information given here may not be undertaken or guaranteed to be current. You are recommended not to make a business decision based on any part of the information given here, and to buy professional legal service for each case depending on its peculiar circumstances.
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Gulis Law & Consultancy Office