Arbitration and arbitration provisions are regulated in the Code of Civil Procedure No. 6100 (“CCP”), the International Arbitration Law No. 4686 and the Arbitration Rules of the International Chamber of Commerce (“ICC”). In this article, we will try to outline the provisions and procedures that can be applied during the arbitration proceedings to resolve a dispute.
Pursuant to the arbitration provisions regulated in the CCP, the parties may freely decide on the law to which the arbitration will be subject and the rules of procedure to be applied by the arbitrators, without prejudice to the mandatory provisions of the law, or they may determine by reference to the arbitration rules. If there is no agreement between the parties regarding this matter, the arbitrator or the arbitral tribunal will conduct the arbitration proceedings as they deem appropriate by observing the provisions of Articles 407-444 of the CCP. In order for the arbitration to find a field of application, the dispute must not contain any foreign element and the place of arbitration must be determined as Turkey, because the principle of territory has been accepted in terms of national arbitration. When the language and the place of arbitration are examined in terms of the CCP, there is no special provision regarding the language of arbitration, and it is understood that the language will be Turkish in accordance with Article 407 of the CCP. The place of arbitration is freely decided by the parties or by an arbitration institution chosen by them. If there is no agreement on this matter, the place of arbitration will be determined by the arbitrator or arbitral tribunal according to the characteristics of the case. The number of arbitrators in the trial must be an odd number. If the number of arbitrators is not agreed upon by the parties, three arbitrators will be selected.
Another legislation that regulates arbitration rules is the International Arbitration Law. According to this law, the legal rules agreed by the parties will be applied in terms of the law to be applied in the arbitration proceedings as a result of the dispute. If not, the arbitrator or arbitral tribunal decides in accordance with the substantive law of the state it has concluded to be in the closest connection with the dispute. The arbitrator or arbitral tribunal may decide in accordance with the rules of fairness or as a amiable compositeur, provided that the parties have expressly authorized it. Arbitration proceedings will find application in disputes that have a foreign element and where the place of arbitration is determined as Turkey or where the provisions of this legislation are chosen by the parties or the arbitral tribunal. As regards the language of arbitration, proceedings may be held in Turkish or in the official language of one of the states recognized by the Republic of Turkey. The language or languages to be used in the proceedings will be determined by the arbitrator or arbitral tribunal, unless agreed between the parties. The place of arbitration shall be freely decided by the parties or by an arbitration institution chosen by them. Although there is no agreement on this matter, the place of arbitration will be determined by the arbitrator or arbitral tribunal according to the characteristics of the case.
In our article, we will finally touch on the ICC Arbitration Rules. According to these rules, the parties are free to determine the law to be applied to the merits of the dispute by the arbitral tribunal in terms of the law to which the arbitration proceeding will be subject. If there is no agreement on this matter, the arbitral tribunal will apply the law it deems appropriate. The arbitral tribunal takes into account the provisions of the articles of association made between the parties and the relevant commercial customs, if any. In addition, the arbitral tribunal will only have the authority of a amiable compositeur or may decide according to the rules of equity and impartiality only if the parties have authorized it. Unless the place of arbitration is decided by the parties, the place of arbitration will be determined by the Court. Unless the parties agree otherwise, the arbitral tribunal may hold hearings and meetings at any place it deems appropriate after consulting the parties, and may hold deliberations on the award at any place it deems appropriate. Unless agreed by the parties, the arbitral tribunal will be determined the language or languages of the arbitration, by considering all relevant aspects including the language of the articles of association. Finally, the number of arbitrators may be one or three. If the number of arbitrators has not been agreed by the parties, the Court will appoint a sole arbitrator unless it considers that the dispute requires the appointment of three arbitrators.
Legal Intern, Sıla Atilla
TARLAN- BAKSI LAW FIRM
ATT. AYLİN TARLAN- ATT. DERYA BAKSI
Tarlan Avukatlık Bürosu Bloğu 