Turkey: Soft Law In International Arbitration

Last Updated: 10 March 2017
Article by Mehveş Erdem

Most Read Contributor in Turkey, December 2017


Application of soft law in international arbitration has increasingly become more significant. Mainly due to the party autonomy that is dominant in arbitration states tends to regulate arbitration laws in a limited way. This created a new market for players, besides lawmakers to codify rules. These rules that are drafted by such private players have a substantive, or are of a procedural, nature. One of the most referred to substantive soft law is the UNIDROIT Principles of International Commercial Contracts ("UNIDROIT Principles"). The UNIDROIT Principles will be referred to when an arbitral tribunal is in the phase of resolving the dispute (i.e. when the merits are examined). However, arbitration is a dispute resolution mechanism, and bears a significant amount of procedural matters, as well as soft law that aim to regulate such procedural matters, and which are arbitration specific, will be the main focus of this newsletter article.

What is soft law in international arbitration?

There is no standard definition for soft law that is mutually agreed to, in practice. However, it is possible to put forth characteristics of procedural soft law, also referred to as para-regulatory texts ("PRTs")1 in arbitration2. The main purpose of these rules are to assist and guide practitioners, and especially arbitrators, where arbitration laws and rules are deficient.

Soft law can appear as guides, rules, codes, recommendations, guidelines, notes, etc. The title of these norms mainly depends on the drafters' position and how it would like such rule to be understood.

Procedural soft law norms that are mostly referred to in arbitration are codified by arbitration-related bodies, such as the International Bar Association ("IBA"). The IBA is one of the institutions that drafts numerous PRTs. The most popular and widely used PRTs issued by the IBA are the IBA Rules on the Taking of Evidence in International Arbitration ("IBA Guidelines on Evidence"), and the IBA Guidelines on Conflicts of Interest in International Arbitration.

These norms are not considered as part of a state's domestic law and are related to issues that are not covered by arbitration rules. This is one of the reasons when the International Chamber of Commerce Rules of Arbitration ("ICC Rules") are applied, the parties and arbitrators rely on the IBA Guidelines on Evidence for the issues where the ICC Rules do not provide guidance. In other words, these procedural norms are of a complementary nature. This is also stated in the foreword of the IBA Guidelines on Evidence that "[t]he Rules are designed to be used in conjunction with, and adopted together with, institutional, ad hoc or other rules or procedures governing international arbitrations."

One of the most differing characteristics of soft law from hard law is its non-binding effect. Soft law norms are mostly non-mandatory, not binding and, therefore, do not have full legal effectiveness. This is because the drafting authority either lacks such legal capacity, intends the rules to be not fully effective, or the implementing authority is unwilling to ensure full legal capacity.

It is possible that PRTs in its preamble or foreword state its nature and way of application. In the foreword of the IBA Guidelines on Evidence, it is stated that "parties and Arbitral Tribunals may adopt the IBA Rules of Evidence, in whole or in part, at the commencement of the arbitration, or at any time thereafter. They may also vary them or use them as guidelines in developing their own procedures." It is also further stated under Article 1(1) of the IBA Guidelines of Evidence that the parties or the arbitral tribunal may decide on its application. In cases where parties decide that this would govern their proceedings, the arbitral tribunal is bound to apply them.

Impact of Soft Law

PRTs do not enjoy the same authority as arbitration laws. It would not provide a state court authority with immediate effect3. In order for PRTs to have authority, there should be a factor that gives such authority. An undisputed authority would be the agreement of the parties. It could be said that in cases where parties decide to apply a PRT in their arbitration agreement, this would bind the arbitral tribunal as the procedural law, as well as the applicable contract law.

Application of the PRTs impact state courts, arbitral institutions, and the parties. It should be noted that all of these actors must comply with the minimum standard imposed by the lex arbitri. They could use the PRT as a guide when interpreting lex arbitri, but are not bound by them.

The IBA Guidelines on Evidence has a unique position among other PRTs in practice; the arbitral tribunal tends to apply it even if parties do not decide on its application4. Applying these rules would facilitate arbitral tribunals' work; provide some assurance to the parties that the tribunal would respect parties' rights to due process. It should also be borne in mind that arbitrators and the parties should examine the necessities of each case, and then decide upon a PRT's application, since in some smaller cases with domestic features, it would impose a burden to apply complex procedural rules.

The impact of such IBA Guidelines on Evidence on state courts is, however, weak. This is explained by some scholars that procedural issues regarding evidence appear before a state court within the scope of due process. Whether an arbitral tribunal applies the IBA Guidelines on Evidence would not be considered as a breach of the fundamental principles of procedure5.

Possible Problems

In practice, it is questioned whether an arbitrator has the discretion to apply soft laws without the agreement of the parties. This may create arguments against the enforceability of an award, or a party could make a claim with regard to a fair trial.

Another important issue with regard to PRTs is whether an award could be challenged based on a PRT. In other words, could a party challenge the award by claiming that the arbitral tribunal violated a PRT. The answer to this question will be different for each PRT.

In Switzerland, the Swiss Federal Tribunal tends to refer to the IBA Guidelines on Conflicts of Interest in International Arbitrations when it examines the independence and impartiality of the arbitrators. However, non-compliance with other PRTs is almost never an issue for annulment6.


Procedural soft law or PRTs are seen as important sources for players in international arbitrations that should be embraced by the arbitration community. Even though there are concerns as to PRTs' legal effectiveness and legitimacy, or as to its application and the award's enforceability and annulment, procedural soft law norms are increasingly adopted by arbitrators to fulfill their duties to conduct fair and impartial proceedings. Their adoption also helps the parties to picture the frame of their proceedings and avoid unexpected procedural uncertainties.


1 For the purpose of this newsletter article, "soft laws" and "PRTs" will be used, interchangeably.

2 Favalli, Daniele, An Overview of Existing Para-regulatory Texts ("PRTs"): Analysis, Facts and Figures, ASA Special Series No. 37, p. 1-16; Daniel p.4: "Legal texts covering substantive law aspects may also be regarded as soft laws and may, in fact, incorporate aspects similar to PRTs when their application is not directly provided for in the contract. These legal texts are not PRTs, but binding provisions, such as the ICC Incoterms, UNIDROIT Principles of International Contracts, and the principles of European contract law."

3 Stacher, Macro, The Authority of Para-Regulatory Texts in ASA Special Series No: 37, p. 108.

4 Kaufmann-Kohler, Gabrielle, Soft Law in International Arbitration: Codification and Normativity, Journal of International Dispute Resolution, 2010, p. 14.

5 Kaufmann-Kohler, p.14.

6 Gross Balz, Stojiljković Mladen, The Challenge of an Arbitral Award on the Basis of a PRT in ASA Special Series No: 37, p. 127-138.

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.

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”

Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

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