The Validity Of Arbitration Agreements In Turkish Law

I. INTRODUCTION:

9 Of the 1982 Constitution.  the article entitled “Judicial Power” in the article “The judicial power of the Republic of Turkey will be exercised by independent and impartial courts” clearly states that the judicial power will be exercised by independent and impartial courts on behalf of the Turkish Nation. Although this is the rule, it has been a procedure applied since ancient civilizations for the parties to the dispute to leave the settlement of the dispute to another authority instead of the state courts upon their decrees.

As an alternative way of state trial in both international and national disputes, the method of leaving the authority of Dec Decrying the dispute between the parties who have a dispute between them on a right to one or several people instead of the state courts based on the freedom of will is called arbitration.[1]

The fact that the parties choose this alternative dispute resolution method may be due to a number of reasons. As an example of these; time, money, reputation, etc. it can be given. In order for the desired agreement to be reached as a result, the parties need a duly valid arbitration agreement.

II. DEFINITION, NATURE AND VALIDITY CONDITIONS OF THE ARBITRATION AGREEMENT:

Definition of the arbitration agreement 412 of the Law of Civil Procedure numbered 6100. “An arbitration agreement is an agreement made by the parties to leave the settlement of all or some of the disputes that may arise or arise from a contractual or non-contractual legal relationship to the arbitrator or arbitral tribunal.” it is placed on the normative plane with its definition in the form.

There is a debate in the doctrine as to whether arbitration agreements are a procedural agreement or a substantive law agreement in terms of their nature. The prevailing opinion in Turkish law is that the arbitration agreement is a procedural law agreement. In determining whether a contract is a procedural law contract or a substantive law contract, it is necessary to determine whether the main effects of the relevant contract occur in the field of procedural law or in the field of substantive law.

Unlike substantive law contracts, procedural contracts are not based on substantive law, but directly on procedural law and show their effects in the field of procedural law. An arbitration agreement is a procedural agreement because it shows its effects directly in the trial law.[2]

The validity conditions of the arbitration agreement October include some special elements in addition to the validity conditions in ordinary contracts.;

a) The Existence of a Legal Relationship Between the Parties:

Both Article 421/1 of the Code of Civil Procedure and Article 4/1 of the International Decrees Law state that an arbitration agreement is an agreement that the parties have made to resolve all or some of the disputes that may arise or arise from an existing legal relationship between them, whether or not they arise from a contract, by arbitration. As can be understood from the explicit wording of the articles of the law, the first Deciency required to be found between the parties for an arbitration agreement is the existence of a legal relationship.

b) The Existence of a (Specific or Decidable) Dispute Between the Parties:

Another condition for the validity of the arbitration agreement is that the dispute between the parties is specific (or Decidable) and the dispute arising or to arise between the parties arises from this relationship.

When entering into an arbitration agreement, the parties should know which dispute they have entered into and signed the arbitration agreement for, and if it has been agreed that disputes arising from a specific legal relationship will be resolved by arbitration, there is no obligation that the dispute will be considered “certain”.

c) Existence of Mutual Arbitration Wills:

Mutual and mutually appropriate declarations of will, which are the essential element of contracts that are bilateral legal transactions, are also sought in arbitration agreements that are subject to many.  In order for a valid arbitration agreement to be mentioned, the arbitration wills of the parties must be clearly stated in such a way that confusion is not allowed in a written agreement.

d) Written Form Requirement:

412 Of the Code of Civil Procedure, as stated in the article the arbitration agreement is a contract that must be made in writing. 13 Of the Turkish Code of Obligations (TCO) and 14. the written form requirement is stated in the articles. Accordingly, the 13th of the law while it is stated in article 14 of the same law that “It is obligatory to comply with the written form in the amendment of a contract stipulated to be made in writing by law” on the other hand, the article contains the statement ‘it is mandatory to have the signatures of those who have entered into debt in the contracts stipulated to be made in writing.

According to Article 4/2 of the International Arbitration Law, “The arbitration agreement is concluded in writing. In order for the written form requirement to be considered fulfilled, the arbitration agreement must have been transferred to a written document signed by the parties or to a communication medium or electronic medium such as a letter, telegram, telex, fax exchanged between the parties, or the defendant’s response to the claim of the existence of a written arbitration agreement in the lawsuit petition must not have been Decried in the petition. If a submission is made to a document containing an arbitration clause in order to be made part of the main agreement, a valid arbitration agreement is also deemed to have been concluded.” by saying that the arbitration agreement will be made in writing, in order for the written form requirement to be Decried as fulfilled, the arbitration agreement must be transferred to a written document signed by the parties or to a communication medium or electronic medium exchanged between the parties, it is also stated that if a submission is made to a document containing an arbitration clause in order to be made part of the main agreement, a valid arbitration agreement will be deemed to have been concluded.

e) Arbitrability:

Arbitrability refers to the areas that may be subject to arbitration by the parties. It is not possible for the parties to arbitrate all legal disputes between them based on each mutual and mutually appropriate declaration of Decrees. This issue is subject to Article 1 of the International Arbitration Law in our law. article 408 of the Code of Civil Procedure and Civil Procedure. it is arranged in the article. In the text of both articles, it is stipulated that disputes arising from real rights on immovable property or affairs that are not subject to the wills of both parties are not arbitrable.

Since there is an aspect related to public order, land registry cancellation and registration cases are not arbitrable. These are affairs that are not subject to the wills of the parties specified in the law as not being amenable to arbitration. It is stated that jobs that fall within the scope of criminal and administrative jurisdiction, disputes related to divorce and custody in family law, bankruptcy cases are not arbitrable due to the phrase jobs that are not subject to the will of the parties.[3]

III. CONCLUSION:

In accordance with the explanations explained above, in order for arbitration agreements, which are an alternative method of Decoupling legal disputes, to be valid, a dispute must exist between the parties. It is not necessary that the entire dispute be submitted to arbitration. The parties may agree to submit all or part of this dispute between them to arbitration.

Arbitration agreements will be valid on a legal level within the framework of the principle of separability of the arbitration agreement, as it can be a contract alone, or with an arbitration clause inserted into the main contract. In practice, it is observed that when an arbitration agreement is made, the arbitration clause is included more in the event of a dispute that may arise in the future.

The parties are obliged to conclude the arbitration agreement in writing, which constitutes the condition for the validity of the agreement. Finally, the subject of the dispute should be one of the arbitrable issues.

IV. BIBLIOGRAPHY:

AKINCI, Ziya, Milletlerarası Tahkim, 4.B., İstanbul, 2016,

ALANGOYA, Yavuz/YILDIRIM, Kamil/ DEREN YILDIRIM, Nevhis, Medeni Usul Hukuku, Esasları, 7. B., İstanbul, 2009,

Lokmanoğlu, “Türk Hukukunda Tahkim Sözleşmesinin Kurucu Unsurları ve Geçerlilik Şartları”

[1] ALANGOYA Yavuz/ YILDIRIM Kamil/ DEREN YILDIRIM, Nevhis, Medeni Usul Hukuku, Esasları, 7. B., İstanbul, 2009, s. 595; AYDEMİR, Fatih, Türk Hukukunda Tahkim Sözleşmesi, İstanbul 2017, s. 5

[2] Lokmanoğlu, “Türk Hukukunda Tahkim Sözleşmesinin Kurucu Unsurları ve Geçerlilik Şartları” s.5

[3] Lokmanoğlu, “Türk Hukukunda Tahkim Sözleşmesinin Kurucu Unsurları ve Geçerlilik Şartları” s.17