THE DEVELOPMENT OF INTERNATIONAL ARBITRATION IN TURKEY by Turqut Aycan Özcan
As a bridge between the Europe and the Middle East, Türkiyənin əhəmiyyətli və geosiyasi rol oynayır, hansı siyasi məna, həm də iqtisadi mənada yalnız bu iki qitəni birləşdirən. belə, inkişaf etməkdə olan ölkə kimi, Turkey has become an attractive investment field for the foreign investors. Especially, in recent years, foreign investors coming from Europe and Middle East have considered Turkey as a meeting point in order to carry out trading and major business transactions. Such international business transactions carried out in Turkey have naturally caused the necessity to understand the Turkish law in order to compare it with the international commercial legislation. də, question marks have started to arise with regard to the law applicable to the disputes arising from international commercial business carried out in Turkey.
These question marks are answered in this essay by way of assessment of the development process of international commercial arbitration in Turkey with a chronological review of (mən) relevant legislation before the ratification of international conventions, (ii) major international conventions ratified by Turkey and (iii) relevant Constitutional amendments and enactment of the new laws.
Bu vaxt, the major provisions of the International Arbitration Law (applicable law in Turkey on international commercial arbitration) pertaining to (mən) scope of application, (ii) arbitration agreement, (iii) competent court and extent of court intervention, (iv) interim measures of protection, (v) appointment of arbitrators, (biz) challenge to arbitrators, (vii) arbitral proceedings and (viii) recourse to the arbitral awards are analyzed by taking the relevant provisions of the UNCITRAL Model Law into consideration.
B. Legislation before the Ratification of International Conventions
Turkish Law has met with the concept of Arbitration (“Tahkim” in Turkish) by “Mecelle”, which is the name of the Ottoman Civil Code. The nature of Mecelle was a mixture of Secular and Islamic law. Arbitration was firstly regulated under Article 1790 of Mecelle. lakin, modifications, which may be accepted as the milestones of the modern arbitration system, have been made in the late of 1920s by taking the European models into consideration.
(ii) Prosessual Mülki Məcəlləsi
The concept of arbitration was mainly regulated under the Code of Civil Procedure numbered 1086 and dated 18 iyun 1927 (the “CCP”) . The provisions of the CCP were taken from the Civil Procedural Code of Neuchatel dated 1925 . The relevant provisions of the CCP (hissə 8) on arbitration have not been changed since their first adoption in 1927. The arbitration rules are regulated under Articles 516 – 536 MPM-in.
Digər tərəfdən, a commission has been established by the Research Institute of Banking and Commercial Law in 1966 in order to make fundamental changes in arbitration rules under the CCP and this commission has prepared a draft law in this respect and submitted it to the Ministry of Justice.
haqqında 12 yanvar 2011, the new Code of Civil Procedure (the “New CCP”) was enacted . Along with some civil procedures, the rules on domestic arbitration were also amended by New CCP. The arbitration rules are regulated under Articles 407 - 444 of the New CCP. Məqalə 407 of the New CCP explicitly determines the scope of domestic arbitration. According to this, domestic arbitration shall be applicable (mən) to the disputes which do not include foreign element determined by the International Arbitration Law numbered 4686 and dated 21 iyun 2001 (the “IAL”) və (ii) when a place in Turkey is determined by the parties as a seat of arbitration.
(iii) International Private and Procedural Law
The subject of arbitration was also regulated under the International Private Procedural Law numbered 2675 and dated 20 Bilər 1982 (the “IPPL”) .
mahiyyətcə, the IPPL arranges the recognition and enforcement of the foreign arbitral awards. Before the enactment of the IPPL, the foreign arbitral awards have been enforced in Turkey same as the domestic arbitral awards in accordance with the relevant provisions of the CCP (İncəsənət. 536) until the year of 1949. ilə 1949, the Court of Appeal ruled that the enforcement of the foreign arbitral awards should be subject to the procedure of enforcement of foreign courts in Turkey. Upon the said decision of the Court of Appeal, the foreign arbitral awards have been enforced in accordance with the enforcement procedure of the foreign court decisions until the enactment of the IPPL.
The IPPL implements the provisions of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the 1961 Beynəlxalq Kommersiya Arbitraj haqqında Avropa Konvensiyası. The term “foreign award” is not defined in the IPPL, lakin, based on the Turkish Court decisions and academic views it can be defined as “an arbitral award rendered according to the procedural law of a foreign State.”
Ci maddəsinə əsasən 43 of the IPPL, a foreign arbitral award may be enforced in Turkey if the said arbitral award has become (mən) final and (ii) enforceable in the country where it was rendered.
In the mean time, Məqalə 44 of the IPPL states that during the review of the foreign arbitral award, the enforcement conditions applicable to foreign court decisions should be taken into consideration. Ci maddəsinə əsasən 38 (bir) of the IPPL, in order to enforce a foreign court decision in Turkey, there should be (mən) a reciprocity agreement between Turkey and the country where the foreign court decision was rendered or (ii) a law provision or (iii) a defacto practice in that country, which provides the enforcement of Turkish court decisions.
nəhayət, Məqalə 45 of the IPPL regulates the refusal grounds for the applications made for enforcement of the foreign arbitral awards in Turkey.
C. Ratification of Major International Conventions
Although the New CCP and the IPPL contain provisions pertaining to arbitral proceedings and recognition and enforcement of the foreign arbitral awards, Turkish legislation was still far from meeting the needs of contemporary business transactions carried out in Turkey. In order to meet these requirements, Turkey has ratified major international conventions in this respect.
üstəlik, a significant number of Bilateral Investment Treaties have been signed between Turkey and major industrialized states in order to facilitate foreign investments and formulate how to access international arbitration in spite of certain contrary articles of the Turkish Constitution.
(mən) The Washington Convention On the Settlement of Investment Disputes Between States and Nationals of Foreign States (1965) (the “ICSID Convention”)
The ICSID Convention has been ratified by the Law No. 3460 in Turkish Parliament on 27 Bilər 1988 . There exist two important points of the ICSID Convention in connection with the improvement of International Arbitration in Turkey. əvvəla, the ICSID Convention is the first major international convention ratified by Turkey in the field of International Arbitration. İkincisi, ratification of the ICSID Convention has forced Turkey to execute many bilateral investment treaties in order to meet the necessities of fast developing economy by the foreign investments.
During the ratification of the ICSID Convention, Turkey has notified the International Centre for Settlement of Investment Disputes ("Mərkəzi") that disputes arising from or in connection with the real properties would not be within the scope of the Centre. In the mean time, Turkey has made a reservation with respect to Article 64 of the ICSID Convention by rejecting the powers of the International Court of Justice over the interpretation and application of the ICSID Convention, preferring to have such disputes resolved “through meaningful negotiations between the parties.”
(ii) The European Convention On International Commercial Arbitration (1961) (the “European Convention”)
The European Convention has been ratified by Turkey in 1991 for the purpose of unification of its legislation with other contracting countries’ legislations in order to ensure a predictable and reliable investment environment to the foreign investors. It is also important that the European Convention is the first international convention, which influences the relevant legislation of Turkey on international commercial arbitration in the meaning of arbitral proceedings.
(iii) The New York Convention On the Recognition and Enforcement of Foreign Arbitral Awards (1958) (the “New York Convention”)
Turkey has ratified the New York Convention in 1991 . Although the ratification date seems very late, the New York Convention was signed by Turkey in 1958. buradan, the IPPL, which contains provisions on the recognition and enforcement of foreign arbitral awards were absolutely prepared in conformity with the provisions of the New York Convention in order to prevent possible contradictions between the domestic legislation and the New York Convention which may arise after the ratification of said convention.
The New York Convention has been ratified by Turkey with two reservations. As per the first reservation, the New York Convention shall only be applicable to the foreign arbitral awards, which were rendered by a contracting country. This reservation resulted from the principle of reciprocity accepted as one of the fundamental principles of Turkish foreign policy. According to the second reservation, the New York Convention shall only be applicable to the legal relationships whether contractual or not, which are considered as commercial under Turkish law.
D. Constitutional Amendments and Enactment of the Relevant Laws
(mən) Constitutional Amendments
After the ratification of the major international conventions mentioned above and the execution of several bilateral agreements in this respect, Turkey has become a more favorable investment country for foreign investors. lakin, there was still a major problem pertaining to the arbitrability of “concession contracts” involving foreign investment in public services.
ilə 1995, the Turkish Constitutional Court cancelled certain parts of Articles 5 və 14 of the Law No. 3996 governing Build – Operate – Transfer (“BOT”) Model Projects arranged to cover the infrastructure and energy needs of Turkey. In this decision, the provisions of Article 5 considering the BOT contracts as non-concessionary contracts, buradan, subject to private law, and the relevant paragraph of Article 14 stipulating that the Law on Concessions of 1910 is not applicable to BOT contracts were found unconstitutional.
Upon the above-mentioned Cancellation Decision of the Constitutional Court, the energy projects relating to performance of a specific public utility service by a private company have been supervised by the Government for a long time.
müvafiq, the Turkish Constitutional Court was of the opinion that the transactions of BOT project are acts that fall within the scope of administrative law having characteristics of concession contracts. buradan, (mən) prior to their execution, their terms and conditions must be reviewed and approved by the High Administrative Court (“Danıştay” in Turkish) maddəsi ilə 155 of the Constitution and (ii) any dispute that may arise out of such concession contracts must be exclusively settled before the High Administrative Court.
In essence, the problems were arising from the provisions of Articles 125 və 155 of the Constitution. Məqalə 125 of the Constitution regulating the legal recourses against acts and transactions of the administration, did not contain any arbitration procedure. Digər tərəfdən, Məqalə 155 of the Constitution has granted exclusive jurisdiction to the High Administrative Court on the “concession contract”. Although the said provision has not prevented the parties from inserting an arbitration clause to the concession contract; due to the existence of such exclusive jurisdiction granted to the High Administrative Court, negative attitude of the High Administrative Court, which does not accept the arbitrability of such contracts, has closed the doors for the settlement of disputes through arbitration.
In order to eliminate these problems, Məqalələr 47, 125 və 155 of the Constitution were amended in 1999 by the Law No. 4446 tarixli 13 avqust 1999 (the “Amending Law”).
The first Article of the Amending Law has inserted two new paragraphs to the end of Article 47 of the Constitution. The first article of the amending law stipulates:
“The principles and procedures of the privatization of enterprises and assets belonging to the State, public economic enterprises, and other public entities, shall be governed by statutes.
The investments and services executed by the State, public economic enterprises and other public entities, which may be assigned to or performed by real persons or legal entities through private law contracts, shall be determined by law.”
After the said amendment, the concession contracts would be accepted as a private law contract between the administration and private sector under some circumstances determined by law.
Digər tərəfdən, by the amendment of Article 125 of the Constitution, the doors of the arbitral proceedings have opened to the disputes arising from the concession contracts between the private sector and the public entities.
Məqalə 2 of the Amending Law adding a new sentence to the end of the first paragraph of Article 125 of the Constitution rules that:
“Parties to concession contracts concerning the performance of public services can agree to arbitrate disputes arising out of these contracts under domestic or international arbitration. Access to international arbitration can only be given where there is a foreign element with respect to the dispute in question.”
This article enables the parties to agree to arbitrate disputes arising from the concession contracts pertaining to the performance of public services under domestic or international arbitration. lakin, the last paragraph prescribes a condition such as the existence of the foreign element in order for access to the international arbitration by the parties. The terms of “foreign element” and “international arbitration” were not defined under Turkish Law until the enactment of the Law No. 4501 haqqında 21 yanvar 2000 , which was mentioned in the below section of this essay.
Digər tərəfdən, authorization of the High Administrative Court has also been restricted by Article 3 of the Amending Law, which states that:
“The High Administrative Court is authorized to adjudicate lawsuits, to opine within two months on the motions of the Prime Minister and Council of Ministers or on the concession specifications or contracts regarding public services, to examine drafted regulations, to settle administrative disputes and to carry out other acts designated by law.”
It is obvious that the legislature has amended Article 155 for the purpose of removing the negative effects of the High Administrative Court on concession contracts. By the amending law, the power of “examination and review” belonging to the said court was restricted as “giving an advisory opinion”. The High Administrative Court has no power to make any changes to concession contracts at all. əlavə, the Amending Law grants a limited period of time such as two months to the High Administrative Court for rendering an opinion on the concession contracts in order to prevent the delay of execution of the concession contracts.
(ii) Enactment of the Relevant Laws
After the above amendments made in the Constitution, a series of legislation have been enacted by Turkey. Two of these may be considered as more important in terms of ensuring the implementation of the amended provisions of the Constitution.
ilk, “the Law No. 4493 tarixli 20 January 1999” allowing the execution of private-law-governed agreements for the implementation of energy, communication and other infrastructure projects referred to in Article 1 of Law No. 3996 was enacted in the Turkish Parliament. müvafiq, a dispute arising from such agreements have become arbitral after the said amendment.
Yanvar ayında 2000, “the Law No. 4501 on the Principles to be Applied in Disputes Arising from the Concession Contracts for Public Services When Those Disputes are Submitted to Arbitration” was enacted. This Law also provides for the retroactive availability of the constitutional amendments concerning the private law regime and arbitration in concession contracts.
nəhayət, Turkey has enacted the International Arbitration Law numbered 4686 and dated 21 iyun 2001 (the “IAL”) , which is mainly based on the UNCITRAL Model law (the “Model Law”). After this enactment, the arbitration procedure arranged under the CCP has become applicable for domestic disputes, which do not contain foreign elements.
E. Comparison of Major Provisions of the IAL with the UNCITRAL Model Law
As mentioned above, the IAL contains provisions, which are mainly parallel to the provisions of the Model Law. lakin, some provisions of the IAL are different from the equivalent provisions of the Model Law. It is caused by the consideration of the social and political necessities of Turkey during the preparation of the IAL. Digər tərəfdən, some provisions have been regulated by taking the relevant provisions of the Swiss Private International Law into the consideration.
(mən) Scope of the IAL
mahiyyətcə, the IAL was enacted by the Turkish Parliament with the purpose of resolution of the “commercial” disputes containing “foreign elements” through the arbitral proceedings.
Ci maddəsinə əsasən 1 of the IAL, it shall be applied, where the dispute involves a foreign element and Turkey has been selected as the place of arbitration. Əlavə olaraq, tərəflər, the arbitrator or the arbitral tribunal may agree on the application of IAL to the arbitral proceedings even if Turkey has not been selected as the place of arbitration.
The foreign elements are defined in Article 2 of the IAL, which has a wider scope than the definition specified under Article 1 (3) Model Qanununun.
Ci maddəsinə əsasən 2 of the IAL, the existence of any of the following circumstances demonstrates that the dispute contains a foreign element and, accordingly arbitration is deemed to be international:
1. where the domiciles or habitual residences or places of business of the parties to the arbitration agreement are in different States;
2. where the domiciles or habitual residences or places of business of the parties are situated outside the State of;
bir. the place of arbitration, which is determined in, və ya uyğun olaraq, arbitraj sazişi,
b. the place where a substantial part of the obligations arising from the underlying contract will be performed or where the dispute has the closest connection,
3. where at least a shareholder of the company that is a party to the underlying contract, which constitutes the basis for the arbitration agreement, has brought foreign capital into the country in accordance with the legislation concerning the encouragement of foreign capital or where loan and/or guarantee agreements for bringing foreign capital need to be signed in order for the execution of the underlying contract;
4. where the underlying contract or underlying legal relationship of arbitration agreement causes the movement of capital or goods from one country to another.
Due to the absence of an arbitration institution arranged under the IAL, the disputes to be resolved within the scope of the IAL shall be, prinsipcə, resolved by an “ad hoc” arbitration of which the arbitrators will be selected by the parties in accordance with the relevant provisions of the IAL.
Bu vaxt, the resolution procedure of the disputes arising from the concession contracts containing foreign elements pursuant to the Law No. 4501 on the Principles to be Applied in Disputes Arising from the Concession Contracts for Public Services When Those Disputes are Submitted to Arbitration, is also subject to provisions of the IAL.
Digər tərəfdən, as per Article 1 of the IAL, the provisions of the bilateral conventions executed between Turkey and other states are reserved. Buna görə də, in case, where another arbitral proceeding is prescribed under a bilateral convention executed between Turkey and the other contracting state, the said arbitral proceeding shall be applicable to the relevant disputes.
In Article 1 (4) of the IAL, it is clearly stated that the disputes arising from or related to rights in rem (yəni. property rights, usufruct rights, right of easement, və s.) established on immovables located in Turkey are not arbitrable.
müvafiq, the rights in rem are considered by the legislature as the matters which are within the scope of public policy and consequently, the resolution of disputes arising from the rights in rem is subject to the jurisdiction of the Turkish Courts.
These reservations may be considered within the scope of the provision of Article 1 (5) of the Model Law which stipulates that “This Law shall not affect any other law of this State by virtue of which certain disputes may not be submitted to arbitration or may be submitted to arbitration only according to provisions other than those of this Law.”
(ii) Arbitraj sazişi
The IAL enables the parties to agree on the rules of procedure to be applied by the sole arbitrator or the arbitral tribunal save for its mandatory provisions. Əlavə olaraq, parties may determine the rules of procedure by making reference to a law, rules of international or institutional arbitration. Misal üçün, they may incorporate ICC or LCIA or UNCITRAL rules by way of reference in their arbitration agreements. If there is no such agreement between the parties, the sole arbitrator or the arbitral tribunal shall conduct the arbitral proceedings according to the provisions of the IAL. Parties are free to determine the place of arbitration. Said regulation indicates that the IAL is a liberal legislation for the foreign investors doing business in Turkey, which gives liberty to the parties on determination of the applicable arbitration rules.
The arbitration agreement needs to be in writing under the IAL, as per Article 4 (2) of the IAL, the writing requirement is satisfied if it is contained in a document signed by the parties or in an exchange of letters, telex, telegrams or other means of telecommunication which provides a record of agreement, or in an exchange of statements of claim and defense in which the existence of an agreement is alleged by one party and not denied by another.
There are also differences between provisions of Article 4 of the IAL and Article 7 Model Qanununun, which relate to the Arbitration Agreement. Ci maddəsinə əsasən 4 of the IAL, the arbitration agreements made by the parties in an electronic environment are also deemed valid under some circumstances determined by the IAL. lakin, the Model Law does not contain any provision on this matter.
Ci maddəsinə əsasən 7 Model Qanununun, the reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement provided that the contract is in writing and the reference is such as to make that clause part of the contract.
lakin, Məqalə 4 of the IAL states: “The reference made in a contract to a document which contains an arbitration clause constitutes an arbitration agreement where the reference is intended to make that document part of the contract.”
buradan, according to Article 4 of the IAL, it is sufficient to refer to a document containing arbitration clause in order for making a valid arbitration agreement. The legislature does not prescribe a written contract referring to a document containing an arbitration clause in order to constitute an arbitration agreement.
əlavə olaraq, the IAL also contains provisions pertaining to substantive validity of the arbitration agreement. Ci maddəsinə əsasən 4 of the IAL, the arbitration agreement may only be valid, if it is in accordance with the applicable law chosen by the parties. If the parties have not chosen such kind of law, then the arbitration agreement shall only be valid if it is in accordance with the Turkish Law. əlavə, as per Article 4 of the IAL, the objections (mən) pertaining to voidness of the main agreement and/or (ii) stating that disputes prescribed in the arbitration agreement did not rise yet, shall not make the arbitration agreement invalid.
(iii) Competent Court and Scope of Court Intervention
Məqalə 6 of the Model Law states that “The functions referred to in articles 11(3), 11(4), 13(3), 14, 16 (3) və 34 (2) shall be performed by … [Each State enacting this model law specifies the court, courts or, where referred to therein, other authority competent to perform these functions.]". According to the said article, each contracting state enacting the Model Law specifies the competent courts or other authorities in order to execute the necessary transactions prescribed under the Model Law.
In line with this article, as per Article 3 of the IAL, the civil court of first instance (asliye hukuk mahkemesi in Turkish) of the respondent’s domicile, habitual residence or place of business; if none of these is in Turkey, Istanbul Civil Court of First Instance (İstanbul Asliye Hukuk Mahkemesi in Turkish) is the competent court in order to execute the necessary transactions prescribed under the IAL.
(iv) Interim Measures of Protection
Məqalə 6 of the IAL regulates the provisions regarding interim measures of protection. First paragraph of Article 6 of the IAL is in line with Article 9 of the Model Law stating that a party may request, before or during arbitral proceedings, from a court to grant an interim measure of protection.
Digər tərəfdən, according to second paragraph of Article 6 of the IAL, during the arbitral proceedings, the sole arbitrator or the arbitral tribunal may only grant an interim injunction or an interim attachment, which is not required to be enforced through execution offices or other official authorities or that are binding on the third parties. There is no such kind of restriction arranged under the Model Law.
Since the decisions of arbitrators concerning interim protection are not enforceable in the courts, the arbitrators’ power to grant attachments seems to be meaningless as enforcement is inherently linked to attachments. Bu mövzuda, the IAL seems to provide that arbitral interim measures or attachments could not be given where there is a need to use directly coercive powers for the enforcement of those measures or attachments.
(v) Arbitrlərin təyin
Məqalə 7 (A) və 7 (B) of the IAL arrange the appointment of arbitrators, which are mainly similar to Article 11 Model Qanununun. lakin, there also some differences between the articles of these two laws.
əvvəla, although there is no such provision regulated under the Model Law, it is stipulated in Article 7 (A) of the IAL that the number of arbitrators must be odd. By this arrangement, the legislature has purposed to remove the possible problems, which may arise in case of equity of the votes of the arbitrators during rendering a decision.
İkincisi, Məqalə 7(B) (1) of the IAL expressly provides that arbitrators need to be real persons; lakin, there is no such kind of requirement determined under the Model Law. It means that, a legal entity may also be an arbitrator in an arbitral proceeding through its representatives.
(biz) Challenge to Arbitrators
The challenge procedure of the arbitrators is arranged under Article 7 (D) of the IAL, which is mainly similar to the procedure determined under Article 13 Model Qanununun. Ci maddəsinə əsasən 7 (D) of the IAL, a party who intends to challenge an arbitrator shall do so within “thirty days” after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstance that may give rise to a challenge, and shall notify the other party in writing. In the Model Law, time limit in order to challenge the arbitrators is prescribed as “fifteen days”.
Digər tərəfdən, although it is clearly stated in the Model Law that the arbitral tribunal may continue to the arbitral proceedings and render an arbitral award, during the assessment of the challenge reasons by the competent court, there exists no express provision on this matter in the IAL. Absence of such kind of provision may cause problems pertaining to validity of the arbitral awards rendered during the review of the reasons of challenge by the courts in practice.
Ci maddəsinə əsasən 7 (D) of the IAL, if the competent court accepts the challenge to the sole arbitrator appointed, or all members of the arbitral tribunal, or the part of the arbitral tribunal that may remove the decision-making majority, the arbitration will come to end. lakin, if the name(s) of the sole arbitrator or the members of arbitral tribunal is not determined in the arbitration agreement, a new tribunal shall be appointed. əlavə, according to Article 7 (E) of the IAL, “an arbitrator may be held responsible for damages caused by the failure to perform his duties without justifiable grounds”.
(vii) Arbitral Proceedings
As mentioned above, prinsipcə, the parties are free to agree on the procedure to be followed by their arbitrators under the provisions of the IAL. Apparently, this freedom is restricted by mandatory rules of the IAL.
Different from the Model Law, as per Article 8 (A) of the IAL, the parties may make a reference to a law, or international or institutional arbitration rules. By this provision, the IAL grants alternative dispute resolution procedures to the parties.
Ci maddəsinə əsasən 8 (B) of the IAL, the parties are also represented by foreign real persons or the legal entities before the arbitral tribunal. lakin, this provision shall not be applicable to the hearings before the competent courts pertaining to arbitral proceedings.
əlavə, there are also differences between the provisions pertaining to the commencement of the arbitral proceedings. Ci maddəsinə əsasən 10 (A) of the IAL, in case of issuance of an interim injunction or an interim attachment by the court upon the request of a party, such party must initiate the arbitral proceedings within 30 days from the issuance date of the said interim measures.
Digər tərəfdən, the arbitral tribunal is under obligation to render an arbitral award on the merit of the case within one year from the commencement date of the arbitral proceedings pursuant to Article 10 (B) of the IAL. This period may be extended upon agreement of the parties, if the parties could not agree on extension, each party may request from the competent court to extend this period. başqa cür, the arbitral proceedings shall be terminated at the end of one-year period. The main purpose behind this arrangement is to provide a resolution procedure, which is more effective and faster than the ordinary proceedings conducted by the courts.
(viii) Recourse to the Competent Court against Arbitral Awards
Recourse to the competent court against arbitral awards is arranged under Article 15 of the IAL. Ci maddəsinin müddəaları 15(A) are mainly same with Article 34 Model Qanununun. lakin, there also exist provisions under IAL, which are different form the provisions of the Model Law.
Due to the existence of time restriction prescribed for arbitral proceedings under the IAL, the arbitral awards, which have been rendered by the arbitral tribunals without considering this restriction, shall also be set aside by the competent court pursuant to Article 15 (A) 1 –c of the IAL.
üstəlik, under the IAL, the time period prescribed for recourse to the competent court is determined as shorter than the Model Law.
Məqalə 34 (3) of the Model Law states: “An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received that award or, if a request had been made under article 33, from the date on which that request had been disposed of by the arbitral tribunal.”
lakin, the Turkish legislature has determined this period as thirty days. Ci maddəsinə əsasən 15 (B) of the IAL, recourse for setting aside shall be filed within thirty days. This period of time shall commence from the date of notification of an award or a correction or interpretation or an additional award. Filing recourse for setting aside shall automatically suspend the execution of the arbitral award. This arrangement of the legislature also aims to provide more effective and faster resolution procedure then the ordinary procedures of the courts.
As analyzed above, before the ratification of major international conventions, Turkey was far from ensuring an investor-friendly environment. lakin, by the ratifications of the major international conventions, Turkey has started to take place in the field of international business transactions.
üstəlik, Turkey has achieved the actual success by removing the gray fields existing in the contracts executed between the private sector and the public entities. By the constitutional amendments, the status of the concession contracts executed between the private sector and the state’s public enitites was determined and the doors of the arbitration have opened to the disputes arising from such contracts. After this improvement realized in the legislation, Turkey has become a more predictable and reliable investment country between the Middle East and the Europe.
By the enactment of the IAL, which is mainly based on the Model Law, the unification of Turkish legislation with the international arbitration rules has already been completed. Even though the IAL contains provisions granting exclusive authorizations to the courts, particularly in the field of interim measures of protection, which intervene the arbitral proceedings; the successful awards rendered by the arbitral tribunals in Turkey will eliminate the current concerns in practice and make the international commercial arbitration indispensable.