Turkey: Arbitration In Turkey: Challenge Of The Arbitral Award

Last Updated: 2 August 2016
Article by Abdulkadir Guzeloglu and Fatma Esra Guzeloglu

The sole recourse against an arbitral award is by application for setting aside. TIAL provides an exhaustive list of grounds on which an award may be set aside. These are divided into two categories; ones that are to be proved by the parties, and others which a court may consider of its own initiative.

Arbitral Award

Under The Turkish International Arbitration Law of 2001 ("TIAL"), unless otherwise agreed by the parties, an arbitral award is to be rendered within one year from the date on which the appointment of the arbitrator took place where there is a sole arbitrator, or on the date on which the minutes of the first meeting are issued where there is an arbitral tribunal. Parties may agree to prolong this time limit before the expiration of the term. However, if the latter fails to come to an agreement, the competent court may order the extension of the term upon the request of either party. If the court rejects such request, the arbitration process terminates upon the expiration of the aforementioned period. The court's decision in this respect is final. Rendering an award after the expiration of the term fixed by the parties, TIAL or the court constitutes a ground for setting aside the arbitration award.

Unless otherwise agreed by the parties, TIAL permits rendering of partial awards.

Pursuant to Article 14 of TIAL, an arbitral award shall contain the names, surnames, titles and addresses of the parties and, if any, of their representatives; legal grounds and reasons on which the award is based, amount of compensation, if any is claimed; place of arbitration; date of the award; name(s), surname(s), signature(s) and dissent(s) of the arbitrator(s) and finally, a statement indicating that a set-aside procedure may be initiated against the award.

An arbitral award must address the costs of the arbitration which includes arbitrators' fees, their travel and other relevant expenses, expert witness fees, costs for on-site visits, costs incurred by the witnesses to the extent approved by the arbitrators, attorney fees of the successful party estimated in accordance with the minimum attorney's fee tariff, court fees which are to be paid in relation to the applications made under TIAL, and expenses incurred for the notifications relating to the arbitration. Unless otherwise agreed by the parties, costs are borne by the losing party. Where both parties are found to be partially right, arbitrators shall allocate the costs in proportion to each party's success.

Challenge of the Arbitral Award

Within 30 days from the receipt of the award, either party, with a notice to the other party, may file an application before the arbitrator(s) to correct any material calculation or clerical errors as well as mistakes of similar nature; or to interpret a part or whole of the award. If the arbitrator(s) find that, upon seeking the other party's opinion, the request is justifiable, the tribunal shall make the necessary correction or give interpretation within 30 days from the filing of such request. Arbitrator(s) may also make corrections in relation to any material errors on their own motion within 30 days from the date of the award.

Furthermore, within 30 days from the receipt of the award, a party may request the arbitrator(s) to issue an additional award in relation to claims which were propounded during the arbitration proceedings but omitted from the award. If such a request is found to be justified, arbitrators are to render an additional award within 60 days from the date of such request. The decision on the correction, interpretation and the additional award is notified to the parties and forms a part of the award.

Under TIAL, parties have a right to request setting aside of an arbitral award within 30 days from the receipt of the award. That said, the time starts to run from the date on which a correction, interpretation or additional award is notified to the parties if such a request has been raised.

The sole recourse against an arbitral award is by application for setting aside. TIAL provides an exhaustive list of grounds on which an award may be set aside. These are divided into two categories; ones that are to be proved by the parties, and others which a court may consider of its own initiative. Accordingly, an award may be set aside if a party proves that: parties lacked capacity to conclude an arbitration agreement; the arbitration agreement was invalid under the law to which the parties have subjected it, failing any indication thereon, under Turkish law; the arbitral tribunal was constituted irregularly; the arbitral tribunal wrongly accepted or declined jurisdiction; there exist ultra, infra or extra petita circumstances; the award was not rendered in time; or principles of due process or equal treatment of the parties were violated. On the other hand, the court examines, on its own initiative, whether or not the subject matter of the arbitration was arbitrable under Turkish law and that the award is in compliance with public policy. As seen, none of the grounds relates to the substance of the award; except for the public policy assessment. In a recent decision dated 30 September 2015, the Supreme Court Assembly of Civil Chambers, whose decisions are binding unlike Supreme Court decisions, delivered that even though the public policy examination requires partial review of the award on its merits, such review shall not go beyond examining whether or not there has been a public policy violation, and therefore shall not constitute a review of the award on its merits in the technical sense.

Parties may, partially or wholly, waive their right to apply to have the award set aside through a declaration within the arbitration clause or a written agreement concluded after the signing of the arbitration agreement, provided that neither party has its domicile or habitual residence in Turkey. Decisions of the first instance court on the set-aside application are open for appeal before the Supreme Court. That said, unless the competent court decides otherwise, the set-aside procedure is finalised without holding any hearings; as well as given priority and handled expeditiously.

This article first appeared in the second Edition of Global Legal Insights–International Arbitration; published by Global Legal Group Ltd, London.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions