Turkey: A Comprehensive Guide To International Arbitration In Turkey: Part IV (Turkish Approach To IBA Rules, On How Arbitrators Have To Conduct Proceedings, Witnesses In International Arbitrational Procedures In Turkey)

1. Have a look at the IBA Rules on the Taking of Evidence in International Arbitration To what extent are they binding? What does the Turkish legal theory say about these Rules?

1.1 To what extent are IBA Rules on the Taking of Evidence in International Arbitration binding?

IBA Rules on the Taking of Evidence in International Arbitration is not automatically binding in its nature. This argument can be examined on three grounds:

One of the fundamental features of arbitration is to be selected and controlled by the parties. This is the reason why even national laws governing international arbitration proceedings are not strict and binding on all phases and issues, but rather choose to give the will and preferences of the parties considerable leeway. Otherwise, if international arbitration proceedings were subject to many strict rules and regulations, the suitability of such a legal method for the primary purpose of this alternative mechanism would become questionable. In brief, the rules and regulations governing international arbitration proceedings typically only tend to be binding if the parties so choose.

International Bar Association is a non-governmental organization that lacks the legal ability to establish binding rules¹. As we have all observed, NGOs can exercise effective leadership in international law order by establishing guidelines and principles, even influencing international treaties, and assisting the work of international tribunals. However, the IBA is neither a governmental body nor an international organization with the authority to impose automatically obligatory laws. Despite this, non-governmental organizations are more flexible and sometimes more attractive to experts, allowing them to better address the requirements and needs of the international community.

The clear answer to this question is included in the Preamble of the IBA Rules on the Taking of Evidence in International Arbitration. According to the second paragraph of the Preamble, parties and arbitral tribunals may adopt the IBA Rules of Evidence. They may choose to implement the IBA Rules of Evidence as a whole, or they may opt to apply them in part. Moreover, The IBA Rules of Evidence also give an opportunity to parties to modify those rules or use them as guidelines when developing their own procedures. In conclusion, IBA Rules of Evidence will only be binding if parties decide so.

1.2 What does the Turkish legal theory say about these Rules?

The theoretical book I can exemplify for this question is Prof. Dr. Ziya AKINCI's Milletlerarası Tahkim/International Arbitration book which covers the topic in 816 pages and focuses mostly on The Code of International Arbitration of Turkey, Turkish Civil Procedure Law, 1958 New York Convention, ICSID Convention, Istanbul Arbitration Centre Arbitration and Mediation Rules.

AKINCI examines the IBA Rules of Evidence very briefly under the topic of "Evidence Submission in International Arbitration" by simply saying that those rules are only binding when the parties agree upon them and cannot be implemented in every arbitration proceeding automatically. In spite of this, AKINCI explains, the IBA Rules of Evidence have had a great deal of success in practice, and parties and arbitrators usually agree to apply them. Furthermore, when parties do not have a choice regarding the evidence rules to be implemented in arbitration proceedings, arbitrators use the IBA Rules of Evidence as a guide when deciding evidence-related issues².

Turkish scholars publish many studies on the IBA Rules of Evidence. The general approach in Turkish academia to The IBA Rules can be seen as favorable and affirmative. On the other hand, AKINCI again argues in his article in 2020 that The IBA rules were criticized for transforming arbitration into a common law procedure and for increasing the cost and duration of arbitration³. Thence, he presents Prag Rules to the attention of Turkish lawyers.

2. What rules on how arbitrators have to conduct proceedings are stated in the Rules of a Turkish arbitration institution?

Section IV of the ISTAC Arbitration and Mediation Rules is devoted to "Arbitral Proceedings". The Secretariat of ISTAC is responsible for submitting the file to the sole arbitrator or arbitral tribunal⁴. Right to fair trial⁵, judicial economy,⁶ and confidentiality⁷ are the main principles in Arbitral Proceedings of ISTAC. Rules of ISTAC order all parties to act in good faith in arbitral proceedings⁸.

Those rules of ISTAC will govern the arbitral proceedings unless parties agree otherwise. If parties do not agree on any other rules than the ISTAC rules and if the ISTAC rules remain silent on an issue, then the sole arbitrator or the arbitral tribunal can designate the rules to apply to this situation⁹. The seat of the arbitration is determined as Istanbul unless the parties agree otherwise¹⁰ but the sole arbitrator or the arbitral tribunal has the power to conduct hearings and meetings at any other location than the seat, after consulting with the parties¹¹. The language of the arbitral proceedings is again chosen by the parties but if parties do not agree on a language, the sole arbitrator or the arbitral tribunal will determine the language of the proceedings¹². Rules of law applicable to the merit of the dispute are chosen by the parties but in the absence of such agreement of the parties, then the sole arbitrator or the arbitral tribunal determines the rules of law to be applied to the merit¹³.

Article 29 of the ISTAC Rules of Trial and Evidence authorizes the sole arbitrator or arbitral tribunal to use all means deemed appropriate to establish the relevant facts of the case¹⁴. Upon the request of one of the parties or on its own initiative, the sole arbitrator or arbitral tribunal may hear the parties, witnesses, and others¹⁵. The sole arbitrator or arbitral tribunal may hear the experts appointed by the parties and, if deemed necessary following consultation with the parties, the arbitrator(s) may appoint an expert. At the hearing, those experts can be asked questions directly by the parties or the arbitrators¹⁶. Site visits are among the methods by which the sole arbitrator or the arbitral tribunal may decide to conduct, after consulting with the parties¹⁷. In every step of the proceedings, the arbitrator(s) has the authority to ask the parties to provide any additional information and documents¹⁸.

Mandatory duties of the sole arbitrator or the arbitral tribunal can be summarized as immediately drawing up the terms of reference following the submission of the Request for Arbitration and Answer to Request for Arbitration¹⁹; submitting the signed terms of reference to the Secretariat within 30 days of the date on which the file was transmitted to arbitrator(s)²⁰; establishing a procedural timetable²¹ and submitting it to the Secretariat²²; summoning the parties for the hearing on the date and time determined and noticed in advance to the parties²³; conducting the hearings under the sole arbitrator's or the arbitral tribunal's full charge and control²⁴; informing the parties and the Secretariat, in writing, about the expected date of the award and the closure of proceedings²⁵.

3. To what extent may arbitrators refuse to hear witnesses, e.g. because they feel that they are irrelevant or because a Party is submitting many more witnesses than the other side?

According to Article 8/3 of IBA Rules on the Taking of Evidence in International Arbitration, The arbitral tribunal must always have full control over the Evidentiary Hearing. The arbitral tribunal may limit or exclude any question posed to, answer provided by, or appearance of a witness if it deems such question, answer, or appearance to be irrelevant, immaterial, unduly burdensome, redundant, or otherwise covered by a reason for objection specified in Articles 9.2 or 9.3.

However, even if IBA Rules did not list the possible reasons to refuse to hear a witness, the arbitrator would have sufficient legal grounds based on the governing principles of arbitration proceedings, such as the right to a fair trial, judicial economy, confidentiality, proportionality, and equality of the parties.

4. To what extent do/may witnesses have to present an oath in arbitration proceedings in Turkey? What happens when they then do not tell the truth?

The Code of International Arbitration remains silent on issues regarding the witnesses in arbitration proceedings. Therefore, the Code does not contain a rule on presenting an oath. Nor do the ISTAC Rules include a rule or regulation regarding the obligation of witnesses to take an oath. However, the parties may agree on a rule mandating that witnesses take the oath before testifying, and also, as the full controller of the arbitration proceedings under the ISTAC Rules, the ISTAC arbitrator or arbitral tribunal may decide that the witness take the oath before testifying at hearings. On the other hand, in my opinion, neither the agreement of the parties on the rules of arbitration nor the rules designated by the arbitrator or arbitral tribunal can force a witness to take an oath before testifying unless this witness accepts to do so. On this occasion, the arbitrator may carry out its power to consult to Article 12 of the Code of International Arbitration. According to Article 12 of the Code of International Arbitration, the arbitrator or arbitral tribunal can ask the parties to submit their evidence within the period determined by the arbitrator or arbitral tribunal but If parties do not comply with the arbitrator's request to submit evidence, the arbitrator or the arbitral tribunal may request assistance from the court in the collection of evidence. In this case, the court will apply the provisions of the Turkish Civil Procedure Code. Thus, the court will apply Article 258 of Turkish Civil Procedure Law (no.6100)²⁶ which lays down the "The Form and Time of The Oath".

Turkish Criminal Code regulates the crime of perjury. However, Turkish scholars do not agreed upon an opinion on whether the crime of perjury under Article 272 of the Turkish Criminal Code can be applied to false testimony of a witness in international arbitration proceedings²⁷. According to Article 272/2 of the Turkish Criminal Code, "Anyone who falsely testifies before the court or before a person or committee authorized by law to hear witnesses by taking an oath is sentenced to imprisonment from one year to three years". In this sense, international arbitration proceedings are not deemed as courts or are not constituted by a person or committee authorized by law to hear witnesses by taking an oath. Therefore, Turkish scholars have a mutual opinion that the false testimony in an international proceeding can not be evaluated under scope of the Article 272/2 because of the non-existence of a court or an authority by a law to hear the witness under an oath.

Yet, many Turkish scholars²⁸ argue that Article 272/1 of the Turkish Criminal Code, which says that "within the scope of an investigation initiated due to an unlawful act, any person who falsely testifies before the committee or the person authorized to hear a witness is sentenced to imprisonment from four months to one year", can be applied to arbitrational proceedings²⁹. Some of them even refers to the term as "an investigation initiated due to an unlawful act" and argued that this legal wording also includes arbitration proceedings because these proceedings also result from an unlawful act³⁰. However, in my opinion, the legal wording of article 272/1 expressly and intentionally chooses the term "investigation/soruşturma" which can only refer to an administrative, disciplinary, or criminal investigation. Thus, I argue that the Turkish Criminal Code lacks a provision for false testimony of a witness under oath or without oath in international arbitrational proceedings and that attempting to find a loophole under Article 272 to punish such actions in international arbitrational proceedings will violate the principle of legality.

Footnotes

1. (12.03.2023)

https://www.ibanet.org/About-the-IBA

https://www.wipo.int/export/sites/www/pct/en/circulars/2020/1608_list.pdf

2. Prof. Dr. AKINCI, Ziya, Milletlerarası Tahkim, Vedat Kitapçılık, İstanbul 2020, p. 300-301.

3. Prof. Dr. AKINCI, Ziya, Prag Kuralları ve Milletlerarası Tahkim, Public and Private International Law Bulletin, 40(1): 481–495, Prof. Dr. Cemal Şanlı'ya Armağan, p. 482.

4. Art. 18.

5. Art. 19.

6. Art. 20.

7. Art. 21.

8. Art. 22/2.

9. Art. 22/1.

10. Art. 23/1.

11. Art. 23/2.

12. Art. 24/1.

13. Art. 25/1.

14. Art. 29/1.

15. Art. 29/2.

16. Art. 29/3.

17. Art. 29/4.

18. Art. 29/5.

19. Art. 26/1.

20. Art. 26/3.

21. Art. 27/1.

22. Art. 27/2.

23. Art. 30/2.

24. Art. 30/4.

25. Art 32/1.

26. "(1) The oath is presented by the witness before the witness is heard.

(2) While taking the oath, everyone present in court, including the judge(s), stands up.

(3) The judge asks the witness, "Do you swear on your dignity, honor and all the beliefs and values that you consider sacred that your answers to the questions will not be contrary to the truth and that you will not hide anything from your knowledge?". The witness replies, "I swear on my dignity, honor and all my beliefs and values that I consider sacred that I will answer the questions truthfully, without hiding anything". And thence, witness is deemed to have been sworn"

27. İNCE TUNCER, Asuman, Yalan Tanıklık Suçu, PhD Dissertation under Hacettepe University, Ankara, 2019, p. 94.

28. İNCE TUNCER, Yalan Tanıklık Suçu, p. 95, footnote. 362.

29. GÖKTÜRK, Neslihan, Yalan Tanıklık Suçu (TCK m. 272), Gazi Üniversitesi Hukuk Fakültesi Dergisi, C. XX, Y. 2016, Sa. 1, p. 378.

30. İNCE TUNCER, Yalan Tanıklık Suçu, p. 95.

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