Answer ... Turkish law distinguishes between domestic arbitration and international arbitration. Thus, arbitration rules and procedures are regulated under the Turkish Civil Procedure Code (6100) (TCPC) and the Turkish International Arbitration Code (4686) (TIAC).

Both the TCPC (Article 412/3) and the TIAC (Article 4) require that the arbitration agreement be executed in writing. The requirement of ‘written form’ is defined very broadly under these provisions.

Law 805 on the Mandatory Use of the Turkish Language in Commercial Enterprises requires that an arbitration agreement be executed in Turkish if one party to the agreement is a Turkish company or citizen. Although this provision has received much criticism in Turkish doctrine, the Turkish Cassation Court nonetheless applies this rule and provides that arbitration agreements executed in a language other than Turkish shall be deemed void. Therefore, disputes between the parties will be handled before the Turkish courts, even though this does not reflect the parties’ intention. Considering the jurisprudence of the Turkish courts, it is highly recommended that the arbitration agreement be executed in Turkish and English.

Answer ... Yes, Turkish law differentiates between domestic and international arbitration. According to Article 407 of the TCPC, domestic arbitration rules and procedures regulated under the TCPC are applicable to arbitration proceedings which have no ‘foreign elements’ pursuant to the TIAC and in which Turkey has been designated as the seat of arbitration.

According to Article 1 of the TIAC, the TIAC shall apply only:

• to disputes with a foreign element and Turkey as the seat of arbitration; or
• in the event that the TIAC is designated as the lex arbitri by the parties, the sole arbitrator or arbitral tribunal.

Arbitration proceedings shall be considered as international if they contain a ‘foreign element’. Article 2 of the TIAC, a foreign element’ is defined as any of the following:

• The parties have their domicile, habitual residence or place of business in different countries;
• The parties have their domicile, habitual residence or place of business in different countries from:
• • the seat of arbitration, as determined in, or pursuant to, the arbitration agreement; or
  • a place where a substantial part of the obligations arising from the underlying contract is performed or a place where the dispute has the closest connection;
• At least one of the shareholders of a company which is a party to the underlying contract that constitutes the basis for the arbitration agreement has brought foreign capital into Turkey in accordance with the laws on foreign investment, or a loan and/or guarantee agreement must be signed to execute the underlying contract; or
• The underlying contract or the underlying legal relationship requires the movement of capital or goods from one country to another.

Answer ... Yes. Both the domestic arbitration and international arbitration provisions are in compliance with the UNCITRAL Model Law.

Answer ... No. In compliance with the UNCITRAL Model Law, party autonomy is essential in both domestic and international arbitration. Therefore, save for some limited exceptions, nearly all provisions with respect to arbitration in the TCPC and the TIAC can be qualified as non-mandatory.

Answer ... No.

Answer ... Turkey has been a signatory to the New York Convention since 12 February 1992. The following reservation was made by Turkey: “In accordance with the Article I, paragraph 3 of the Convention, the Republic of Turkey declares that it will apply the Convention on the basis of reciprocity, to the recognition and enforcement of awards made only in the territory of another contracting State. It further declares that it will apply the Convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under its national law.”

Accordingly, the convention applies only to arbitration awards issued in another contracting state and to disputes qualified as commercial under Turkish law.

Answer ... Yes. Turkey is a signatory to the following treaties with respect to arbitration:

• the European Convention on International Commercial Arbitration (Geneva, 21 April 1961); and
• the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States.

Answer ... Article 408 of the Turkish Civil Procedure Code (TCPC) and Article 1/4 of the Turkish International Arbitration Code provide that disputes relating to in rem rights concerning immovables and to disputes that are not within the parties’ disposal are not arbitrable. Accordingly, and further to the jurisprudence of the Turkish courts, disputes relating to criminal law, family law, employment law, consumer protection law, bankruptcy law and administrative law are not arbitrable. All other disputes which are not related to in rem rights concerning immovables and which are within the parties’ disposal are arbitrable.

Answer ... There are no restrictions on the choice of the seat of arbitration. Further to the principle of party autonomy, the parties are free to choose any seat. However, the parties to the arbitration agreement should consider the enforceability of the arbitration award with respect to the reservations made by Turkey in signing the New York Convention.

Answer ... Under Turkish law, an arbitration agreement is valid if:

• the (potential) dispute is determined or determinable;
• the parties’ intention to enter into an arbitration agreement is clear and explicit beyond doubt;
• the (potential) dispute is qualified as arbitrable pursuant to Article 408 of the Turkish Civil Procedure Code (TCPC) and Article 1/4 of the Turkish International Arbitration Code (TIAC); and
• the arbitration agreement is executed in written form. An arbitration agreement is deemed to be in writing if:
• • the arbitration agreement is included in an undersigned contract or in appendices to that contract which form part of the contract;
  • the arbitration agreement is stated in a letter, fax, email or other written communication; or
  • the existence of an arbitration agreement is claimed by the plaintiff in its memorial and the responding party does not object to this claim in its counter-memorial.

Answer ... Yes, both the TCPC and the TIAC include provisions on the separability of arbitration agreements.

Article 4/1 of the TIAC and Article 412/2 of the TCPC state that an arbitration agreement may be executed in the form of an arbitration clause in a contract or in the form of a separate agreement. Article 4/4 of the TIAC and Article 412/4 of the TCPC further provide that no objection may be made against the arbitration agreement on the grounds that the underlying contract is invalid.

Answer ... Pursuant to Article 425 of the TCPC and Article 9 of the TIAC, the arbitral tribunal shall determine the seat of arbitration if there is no agreement between the parties.

According to Article 10/C, the arbitral tribunal also shall determine the language of the arbitration if there is no agreement between the parties in this regard. In determining the seat and language of the arbitration, the arbitral tribunal shall consider the parties’ intention and the specific characteristics of the dispute.

Answer ... According to Article 7/H of the Turkish International Arbitration Code (TIAC), an objection to the jurisdiction of the tribunal must be raised in the first reply memorial at the latest. The fact that the parties have appointed an arbitrator or participated in the process of nominating them does not waive their right to object to the jurisdiction of the arbitrator or the arbitral tribunal.

If the objection is not raised immediately, it shall not be effective. However, even in such cases, if the arbitrator or the arbitral tribunal decides that the delay is justified, they may accept a later objection. These rules are also stipulated in the same manner in Article 422 of the Turkish Civil Procedure Code (TCPC).

Answer ... According to Article 7/H of the TIAC and Article 422 of the TCPC, the arbitral tribunal is empowered to rule on its own jurisdiction, as well as on objections regarding the existence or validity of the arbitration agreement. In doing so, the arbitration clause stipulated in the agreement is evaluated separately from the other clauses and provisions of the underlying contract. Pursuant to these articles, the arbitral tribunal will examine and rule on the objection to the jurisdiction as a preliminary question. If the objection is refused, the arbitral tribunal will proceed with the arbitration and render a decision on the dispute.

Answer ... According to Article 15 of the TIAC, the parties can take action only for the annulment of a ruling of the tribunal. To do so, they must apply to the competent regional court in terms of the location of the competent civil court of first instance. Lawsuits on annulment are heard primarily and immediately.

Article 15 also lists the circumstances in which the tribunal’s rulings can be annulled, which include where the tribunal has ruled on:

• its jurisdiction;
• a matter that is outside the arbitration agreement; or
• the dispute itself.

An action for annulment may be brought within 30 days of the date of notification of the decision, or a decision relating to its correction, interpretation or completion. This period starts to run from the date of the announcement of the tribunal’s ruling. The filing of an action for annulment halts the enforcement of the tribunal’s ruling. The parties can waive their right to take action for annulment.

The same provisions are also included in Article 439 of the TCPC. However, the TCPC uses different language with respect to the legal timeframe for bringing an action for annulment: under Article 439 of the TCPC, this is one month, rather than 30 days as under Article 15 of the TIAC.

Answer ... Under Turkish law, disputes arising from matters that are not within the parties’ disposal are not arbitrable. For example, disputes involving administrative law, criminal law, bankruptcy law or family law are not arbitrable; instead, these matters are subject to the state’s judgment, as indicated by Article 408 of Code 6100 and Article 1, paragraph 4 of the Turkish International Arbitration Code (TIAC). In addition, disputes arising from labour, consumer or property lease contracts are not arbitrable, in light of the principle of protection of the weaker party. Furthermore, in IP disputes, it is not possible to resort to arbitration against third parties who are not party to an arbitration agreement.

As the meaning of ‘disputes that are not within the parties’ disposal’ is open-ended and there is no definitive list in Turkish law of which disputes are arbitrable, arbitrability has also been the subject of Court of Cassation decisions. In some of these cases, the court decided that consumer disputes are not arbitrable and thus that consumers cannot be party to an arbitration agreement. In addition, where an arbitration agreement has been signed by proxy, the court has held that the relevant power must be provided by the proxy issuer in the form of a special proxy. Otherwise, the arbitration agreement shall be deemed invalid.

Answer ... The parties are obliged to execute the arbitration agreement in accordance with the provisions of law. Pursuant to Article 4 of the Turkish International Arbitration Code (TIAC), the arbitration agreement must be in writing. In addition, the rights and powers of the parties under international arbitration rules and practice (eg, to appoint, reject or challenge the appointment of an arbitrator or the arbitral tribunal; to choose the substantive law, the applicable law and the place of the arbitration; and to decide on other procedural matters) are generally also applicable under Turkish law. However, one explicit obligation of the parties is stipulated in Article 10 of the TIAC and Article 397 of the Turkish Civil Procedure Code (TCPC), which provide that if one of the parties obtains an interim measure or interim injunction from the court, it must initiate arbitration case within 30 days under the TIAC and within two weeks under the TCPC. Otherwise, the interim measure or interim injunction will be lifted.

Answer ... No explicit provision of the TIAC or the TCPC deals with multi-party disputes. However, in practice, multi-party disputes can be resolved in arbitration centres in Turkey. For example, the Istanbul Chamber of Commerce Centre of Arbitration and Mediation (ITOTAM) has implemented provisions to deal with multi-party disputes. According to Article 16 of the ITOTAM Arbitration Rules, where there are multiple parties – whether as claimant or as respondent – and where the dispute is to be referred to three arbitrators, the claimants must jointly nominate an arbitrator and the respondents must jointly nominate an arbitrator for confirmation by the arbitration court. In the absence of such a joint nomination, and where the parties are unable to agree to a method for the constitution of the arbitral tribunal, the Arbitration Court shall appoint each member of the arbitral tribunal and shall designate one of them to act as chairman. A similar provision is also included in Article 14 of the Istanbul Arbitration Centre (ISTAC) Arbitration Rules.

Although these provisions concern the appointment of the arbitrators, by extension, they can be used as an example to highlight the fact that Turkish law has no rules that prohibit multi-party disputes.

Answer ... In general, the parties are free to determine the law to be applied the arbitration agreement (ie, the law of the seat). If the parties have not determined the law of the arbitration agreement, the validity of the arbitration agreement shall be determined in accordance with the law of the place where the tribunal’s decision is rendered. In accordance with Turkish law, in order for an arbitration agreement to be valid:

• the intention to arbitrate must be explicitly stated;
• the arbitration agreement must be in writing and concern an arbitrable issue; and
• the dispute must be explicitly stated in the agreement.

If there is an invalid arbitration agreement, the dispute must be resolved in the courts of the state. This is a constitutional necessity under Turkish law, as Article 9 of the Turkish Constitution states that the judicial power shall be exercised by independent courts in the name of the Turkish nation. Moreover, Article 4/3 of the Turkish International Arbitration Code (TIAC) stipulates that the law chosen by the parties shall be primarily used to determine the validity of the arbitration agreement; if the parties have not chosen a law, Turkish law shall apply. In applying Turkish law to the arbitration agreement, as is understood from the wording of the provision, the rules on conflict of laws shall not be considered.

Answer ... Pursuant to Article 12/C of the TIAC, the arbitrator or the arbitral tribunal will decide according to the provisions in the agreement between the parties and the legal rules that the parties have chosen to apply to the merits of the dispute. In interpreting and deciding on the provisions of the agreement, relevant commercial customs and commercial practices will also be considered. Unless otherwise stated, the choice of law of a particular state means that the substantive law of that state has been chosen, not the rules on conflict of laws or the procedural rules of that state.

If the parties have not chosen the rules of law to be applied to the merits of the dispute, the arbitrator or the arbitral tribunal shall decide according to the substantive law rules of the state which is deemed to have the closest connection to the dispute.

Answer ... The Turkish Civil Procedure Code (TCPC) regulates the consolidation of separate cases into a single proceeding. However, it does not specify which procedure will be used to consolidate separate arbitration proceedings. Therefore, the provisions on the consolidation of separate cases of the TCPC shall be applied by analogy to the arbitration proceedings. First, the issue of consolidation may be decided by the parties in the arbitration agreement: the parties can decide on the procedure and the conditions for consolidation.

Article 166 of the TCPC further states that where related cases meet several conditions, those cases can be consolidated either on request or by decision of the court. In arbitration proceedings, the arbitrators cannot order consolidation without the consent of the parties. That said, if the parties agree to the consolidation of separate arbitrations into a single arbitration proceeding, the tribunal may render such decision with respect to the parties’ intention.

Furthermore, institutional rules – such as those of the Istanbul Arbitration Centre (ISTAC) – also include relevant provisions with respect to the consolidation of separate arbitration proceedings. According to Article 11 of the ISTAC Arbitration Rules, proceedings may be consolidated at the request of the parties. If the parties to the arbitrations are different, all parties must agree to the consolidation. If the parties to the arbitrations are the same:

• the parties must agree to consolidation;
• the claims must be based on the same arbitration agreement; or
• the disputes must be connected to the same legal relationship.

Answer ... There are no provisions on the joinder of additional parties to an arbitration under Turkish law. Therefore, the provisions of the TCPC shall be applied by analogy. As an arbitration agreement is binding on the parties only, third parties cannot be made subject to the arbitration agreement. Some authors suggest that, with the consent of the parties and the relevant third parties, the joinder of additional parties to an arbitration is possible. Also, in a decision of 8 November 1960, the Court of Cassation allowed the joinder of additional parties to an arbitration without specifying conditions in this regard. However, as there are no provisions on this issue under Turkish law, the possibility for joinder of additional parties to an arbitration must be assessed on a case-by-case basis.

Answer ... In general, an arbitration agreement binds only the parties to the arbitration agreement. There is no legal provision under Turkish law which directly states that an arbitration agreement does not bind third parties. However, Article 6 of the Turkish International Arbitration Code (TIAC) states that the arbitral tribunal shall not grant interim measures or interim attachments that must be enforced through execution offices or to be executed through other official authorities or that bind third parties. This indicates that arbitration proceedings should not affect or result in liabilities for third parties.

Also, in a decision of 7 November 1989, the 11th Civil Chamber of the Court of Cassation refused recognition of an arbitration award as the parties mentioned in the arbitration agreement and the parties in the ongoing case were different. The common view of doctrine suggests that arbitration is a discretionary proceeding and thus the principle of relativity of agreements will apply to the arbitration agreement. However, under Turkish law, third-party beneficiary contracts may be accepted as an exception, and this is also applicable to arbitration agreements. The doctrine states that if a third party agrees to the conditions of the arbitration agreement and will also benefit from the arbitration proceeding, then the arbitration agreement may bind that third party.

Answer ... Article 416 of the Turkish Civil Procedure Code (TCPC) and Article 7 of the Turkish International Arbitration Code (TIAC) regulate the procedure for the appointment of the tribunal. Both laws have parallel provisions on the appointment of the tribunal. If the parties fail to decide on the procedure for the appointment of the tribunal, this will be carried out in accordance with the provisions of the law. If there is to be a single arbitrator and the parties fail to agree on the appointment, at the request of a party, the civil court of first instance will appoint the arbitrator. If the tribunal will be comprised of three arbitrators, each party will appoint one arbitrator and then the two arbitrators will decide on the third arbitrator. The third arbitrator will act as chairman. In a 24 April 2003 decision of the 19th Civil Chamber of the Court of Cassation (2003/1688-4438), it was held that the court may decide on the third arbitrator if the two arbitrators appointed by the parties cannot agree.

If there are more than three arbitrators, the above procedure will apply. If one party fails to appoint an arbitrator within one month of receipt of notification, or if the two appointed arbitrators fail to appoint the third arbitrator, the third arbitrator will be appointed by the civil court of first instance at the request of a party. If the parties breach the provisions in the agreement regarding the appointment of the tribunal, the arbitrators will be appointed by the civil court of first instance at the request of a third party.

Answer ... The parties are free to decide on the number of arbitrators. If they do not do so, then three arbitrators shall be appointed. Either way, there must be an odd number of arbitrators.

In general, there are no mandatory qualification requirements relating to the education or nationality of arbitrators. The parties are free to specify any qualification requirements in the arbitration agreement. The parties may generally choose the arbitrators who are most suitable within the context of the dispute. However, there is one exception: Article 416/1/d of the TCPC states that if there is more than one arbitrator, one arbitrator must be a lawyer with at least five years’ seniority in his or her field.

Before accepting an appointment, an arbitrator should disclose any circumstances or conditions which might affect his or her impartiality and independence without delay.

Answer ... Articles 417 and 418 of the TCPC and Article 7 of the TIAC regulate the rules and procedures for the challenge of arbitrators. Both statutes indicate that the parties may freely decide on the procedure for challenging an arbitrator. Article 417 of the TCPC states that an arbitrator should disclose any circumstances and conditions that may give rise to justifiable doubts regarding his or her impartiality and independence without delay. The arbitrator may be challenged if:

• he or she does not have the qualifications that the parties have specified;
• he or she does not conduct the arbitration proceedings in the manner agreed by the parties; or
• there is a legal basis for doubts regarding his or her impartiality or independence.

The procedure for challenging an arbitrator is regulated in Article 418 of the TCPC and Article 7/d of the TIAC. A party that intends to challenge an arbitrator must send a written statement to the tribunal regarding the reasons for the challenge within 30 days of the tribunal’s constitution or within 30 days of learning of the circumstance giving rise to the challenge. Under Article 419 of the TCPC, the arbitrator should compensate the parties for any damage relating to his or her failure to perform his or her duties without a justified reason.

Article 420 of the TCPC further provides that an arbitrator’s mandate will be terminated if:

• he or she does not comply with his or her functions;
• he or she fails to act without undue delay for other reasons;
• he or she withdraws; or
• the parties agree on his or her termination.

This issue is also addressed in the Istanbul Arbitration Centre (ISTAC) Arbitration Rules. According to Article 16/3 of the ISTAC rules, the party that receives the written statement of the opposing party must present its written reply within 15 days.

Answer ... The arbitration is not suspended while the arbitrator is being replaced. However, the arbitration shall be terminated if the whole tribunal – or such part as would have a decision-making majority, where the arbitral tribunal is determined by name – is removed. According to Article 421 of the TCPC, the new arbitrator is appointed pursuant to the same rules as applied to his or her predecessor.

This procedure is also regulated in the TIAC. Under Article 7/G of the TIAC, where the mandate of an arbitrator is terminated for any reason, the replacement arbitrator will be appointed under the same rules as applied to his or her predecessor. However, according to the TIAC, if the arbitral tribunal is stated by name in the arbitration agreement, upon termination for any reason of the mandate of the whole tribunal or such part as would remove the decision-making majority, the arbitration shall be terminated.

Answer ... The arbitrators have a duty to conduct the arbitration proceedings, and to remain impartial and independent in conducting the proceedings. The arbitral tribunal must examine the testimony and evidence presented by the parties and render an award accordingly. The arbitrators’ duties are regulated both in the legislation and in the arbitration agreement prepared and executed by the parties.

The arbitrators must follow the rules set out in the arbitration agreement between the parties, as long as these do not contravene mandatory provisions of the law of the seat. If there is no such agreement, the arbitrators will determine the rules of arbitration. According to the TCPC and the TIAC, the parties enjoy full autonomy to determine the rules and procedures of the arbitration. However, if the parties do not do so, the arbitrators shall decide on the procedure to be followed, pursuant to the provisions of the TIAC in international arbitration or the TCPC in domestic arbitration.

Answer ... (a) Procedure, including evidence?

The TCPC and TIAC have similar provisions regarding the powers of the arbitrators during the arbitration proceedings. The arbitrators should primarily follow the arbitration agreement agreed between the parties. Some procedural powers of the arbitrators are regulated in Articles 11 and 12 of the TIAC and Article 429 of the TCPC. According to Article 11 of the TIAC and Article 429 of the TCPC, the arbitrators may decide whether to hold hearings for the presentation of evidence or for oral agreement. If the parties have decided that no hearings shall be held, the arbitrators shall decide on hearings only at the request of a party. The arbitrators must also announce the dates of any site inspections, expert examinations or hearings, and the meetings of the arbitral tribunal for the purpose of examining other evidence.

Moreover, Article 12 of the TIAC and Article 431 of TCPC regulate the appointment of experts and the collection of evidence. The arbitrators may:

• appoint experts on specific issues to be determined by the arbitrators;
• require a party to give provide the expert with any relevant information or produce or provide access to any related information or documents; and
• rule on the inspection of goods or other property.

At the request of a party or if the arbitrators consider it necessary, the expert shall participate in a hearing after delivering his or her (written or oral) report to testify on the points at issue, unless otherwise agreed by the parties.

Regarding the collection of evidence, the parties must provide the evidence within the timeframe specified by the arbitrators. In collecting evidence, the arbitrators may seek assistance from the competent court of first instance.

(b) Interim relief?

According to Article 6 of the TIAC and Article 412 of the TCPC, the arbitrators may order an interim measure of protection or interim attachment at the request of a party, unless otherwise agreed by the parties. The arbitrators may require any party to provide an appropriate guarantee in connection with such measure or attachment. Any decision of a court with respect to interim measures of protection or interim attachments that was issued at the request of a party prior to the commencement of arbitration or during the arbitral proceedings shall automatically cease to have effect once the arbitrators’ decision becomes enforceable or if the arbitrators reject the case in their decision. Article 6, paragraph 2 of the TIAC states that the arbitrators shall not grant interim measures or interim attachments that are required to be enforced through execution officers or other official authorities, or that bind third parties.

Article 31 of the ISTAC Arbitration Rules provides that, unless otherwise agreed by the parties, the arbitrators may grant appropriate interim measures at the request of a party. The arbitrators may require the party to provide an appropriate guarantee before granting the interim measure. The parties may also apply to court interim measures; however, this situation shall not affect the powers of the arbitrators and is not incompatible with the arbitration agreement.

(c) Parties which do not comply with its orders?

There are no express provisions in Turkish arbitration law regarding the arbitrators’ powers where parties do not comply with their orders. However, Article 6 of TIAC, which sets out provisions on provisional measures and preliminary relief, states that: “if one of the parties does not comply with the provisional measure or preliminary relief order given by the arbitrator or the arbitral tribunal, the opposing party may request the relevant court’s help in issuing provisional measure/preliminary relief order.” The parties’ right to apply to court for assistance is limited to matters of provisional measures and/or preliminary relief; and the arbitrators have no further powers in relation to parties that do not comply with their orders.

(d) Issuing partial final awards?

Under Turkish law, the arbitrators’ powers are stipulated under both the TIAC and the arbitration provisions of the TCPC. Article 436 of the TCPC and Article 14/A/5 of the TIAC state that: “Unless agreed otherwise, an arbitrator or an arbitral tribunal may issue partial awards.” Thus, the arbitrators are empowered by law to issue partial awards.

(e) The remedies it can grant in a final award?

The remedies that arbitrators may grant in a final award are not explicitly listed under Turkish law. Instead, it may be inferred from Article 436 of the TCPC that the arbitrators are not restricted to issuing final awards. Article 436(1 (ç) provides that: “In the awards of arbitrators, the rights and obligations imposed on the parties and the arbitration costs are shown expressly and determinately under list numbers.”

The word ‘obligation’ used in this article is a heteronym of the word debt’ in Turkish; but unlike the word ‘debt’, it has a much wider meaning than it has in English. Therefore, it may be understood from the article that the arbitrators may grant anything as a right or obligation to a party. The only limitation here is the public order.

(f) Interest?

There is no express clause on the arbitrators’ powers in relation to interest. However, it may be concluded that if the arbitrators grant rights and impose obligations on the parties, then they can also award interest where this is requested, as per the general provisions of the law of obligations and according to the Turkish Interest Law and Law of Obligations.

Answer ... Article 11 of the TIAC distinguishes between how the arbitrators proceed where a party loses its status as a party and where a party does not attend the arbitration proceedings. The former will not be discussed here; as regards the latter, Article 11(C) provides as follows:

The same provision is included in Article 430 of the TCPC, under the title of “Non-participation to proceedings of a party”.

Answer ... This issue is regulated under both the TIAC and the TCPC. The provisions on the liability of arbitrators are very similar, and both laws state that the arbitrators will be liable for their actions.

Articles 7(E) and (F) of the TIAC set out the liabilities of arbitrators with regard to their appointment, termination and competence:

The same provisions are set out in Articles 419 and 420 of the TCPC, under the title of “The liability of the arbitrators”.

Answer ... Both the Turkish International Arbitration Code and the Turkish Civil Procedure Code (TCPC) stipulate that courts may support the arbitrators on matters which are expressly stipulated in the relevant section of these laws.

Under Article 413 of the TCPC, if the parties object to court proceedings on the basis of an arbitration agreement, the court will accept this objection and reject the case at hand on procedural grounds as long as the arbitration agreement is valid, effective and applicable. Therefore, if the party in the court proceedings raises the arbitration objection and states that the dispute cannot be heard before the courts because it is subject to arbitration, the court will initially test the arbitration agreement and then decide on the admissibility of the arbitration objection.

On the other hand, if the parties mutually consent to arbitration during the court proceedings, the case file shall be sent to the arbitrators by the relevant court (Article 412 of the TCPC).

Answer ... The arbitrators may seek assistance from the local courts with regard to, for instance, provisional measures and the collection of evidence. The cases in which the local courts have powers in the arbitration proceedings are not expressly listed in Turkish arbitration law.

Article 414 of the TCPC states:

The courts may also provide assistance with regard to the appointment of the arbitrators. Article 416 of the TCPC stipulates that: “if a sole arbitrator shall be appointed and the parties cannot agree on choice of arbitrator, it is chosen by the court upon the request of one of the parties.” The same applies where three arbitrators are to be appointed and the third is not appointed by the other two arbitrators, or where a party does not appoint its arbitrator within the specified timeframe (Article 416(1)(c)).

Answer ... Certain matters (eg, family law and criminal law matters) fall within the jurisdiction of the local courts because they are not arbitrable. The parties cannot exclude the powers of the local courts in this regard. However, if the local court decides on the validity of the arbitration agreement where a party objects during litigation (where the dispute is subject to arbitration), the court’s power may be excluded. Other than that, the only restrictions concern the arbitrability of the dispute and public order, which would not allow the parties to exclude the court’s powers by agreement.

Answer ... The issue of costs is regulated under both the Turkish International Arbitration Code (TIAC) and the Turkish Civil Procedure Code (TCPC). A distinction is drawn between the costs of proceedings and fees of the arbitrators in the TCPC; by contrast, the TIAC combines the fees of arbitrators, the costs of proceedings, the advance deposit and the payment of costs in a single article. Both laws are in line with each other.

The TCPC provides as follows:

Answer ... Both the TCPC and the TIAC provide that the arbitrators’ fees are decided with the parties, taking into consideration the value and characteristics of the dispute, and the duration of the arbitration proceedings. Additionally, both laws provide that the parties may agree otherwise.

As it is not specifically prescribed that the parties may agree otherwise in relation to costs other than the arbitrators’ fees, it may be concluded that these are mandatory provisions.

Answer ... Third-party funding is not common in litigation or arbitration in Turkey. However, pursuant to Article 334 of the Turkish Civil Procedure Code, claims that do not lack merit may qualify for legal aid from the state Treasury. There are no specific regulations on third-party funding or third-party funders in the arbitration legislation. Therefore, there are no legal restrictions that apply to third-party funders. Nevertheless, Article 35 of the Turkish Attorneyship Law (7249) infers that such funders cannot provide legal services. In addition, Articles 11 and 12 of the Turkish Attorneyship Law, titled “Activities incompatible with attorneyship” and “Activities compatible with attorneyship” respectively, imply that attorneys and law firms cannot function as funders.

Answer ... The procedural requirements for awards rendered in proceedings conducted under the Turkish Civil Procedure Code (TCPC) are set out in Article 436(1). The arbitral award must include:

• the name(s) and surname(s) of the arbitrator or members of the arbitral tribunal;
• the names, surnames, titles and addresses of the parties, their representatives and counsel, if any;
• the legal grounds on which the award is based and its reasoning;
• the formulation of the legal costs and the rights and obligations imposed on the parties, in a clear and precise manner and in sequence;
• the fact that the award is subject to annulment and the timeframe for filing the annulment claim;
• the seat of the arbitration and the date of the award; and
• the signature(s) of the arbitrator or all or a majority of the members of the arbitral tribunal, and the dissenting opinion, if included in the award.

Article 14(A) of the Turkish International Arbitration Code (TIAC) provides that awards rendered in proceedings under the TIAC must include the following:

• the names, surnames, titles, and addresses of the parties, their representatives and counsel, if any;
• the legal grounds on which the award is based, the reasoning and the amount of compensation, where awarded;
• the seat of the arbitration and the date of the award;
• the name(s), surname(s) and signature(s) of the arbitrator or the members of the arbitral tribunal who rendered the award and their dissenting votes; and
• the fact that the award is subject to annulment.

Answer ... Both Article 427 of the TCPC and Article 10(B) of the TIAC provide that: “Unless decided otherwise by the parties, the decision on merits shall be rendered by the arbitrator or the arbitral tribunal within one year starting from the appointment of the arbitrator for the arbitrations to be conducted by sole arbitrator; and starting from the date that the arbitrators issued the minute of first meeting for the arbitrations to be conducted by multiple arbitrators.”

This timeframe may be extended by agreement of the parties. If the parties cannot reach agreement, the timeframe may be extended by decision of civil court of first instance at the request of a party. The court’s decision is final; and if the court dismisses the request for an extension, the arbitration will terminate once the timeframe agreed by the parties or prescribed in law has elapsed.

Answer ... The procedure for the enforcement of arbitral awards in Turkey may differ depending on the law applicable to the dispute that was subject to the arbitration. In this regard, the International Private and Civil Procedure Law (5718) dated 27 November 2007 and the Turkish International Arbitration Code (TIAC) apply to the enforcement of arbitral awards that contain a foreign element; while domestic arbitration awards are subject to the Turkish Civil Procedure Code (TCPC).

Turkey is a signatory to the New York Convention 1958, which has been in force since 30 September 1992. The International Private and Civil Procedure Law applies to arbitral awards rendered in non-signatory countries, whereas the TIAC – which is influenced by the UNCITRAL Model Law – functions as a guide to the implementation of the New York Convention within the national law. Arbitral awards that fall within the scope of the New York Convention and the TIAC are thus enforceable upon obtaining an ‘enforceability document’ from the domestic courts. Moreover, under Article 15 of the TIAC, “filing an annulment claim automatically stays the enforcement of the award”.

In the preamble to Article 493/4 of the TCPC, it is acknowledged that domestic arbitral awards “become enforceable from the moment that they are rendered”. These awards can be enforced in the same manner as domestic court decisions. In addition, and unlike in international arbitration under the TIAC, Article 493/4 of the TCPC provides that “filing an annulment claim does not stay the enforcement” of domestic arbitration awards.

Answer ... Under Turkish law, the sole legal remedy that may be sought against an arbitral award is an application to set aside the award under the Turkish Civil Procedure Code (TCPC). Before the enactment of the TCPC, the repealed TCPC 1086 provided for appeal proceedings in relation to an arbitral award. To harmonise the set-aside procedures for domestic and international arbitral awards, the legislature introduced – in compliance with the New York Convention – nine grounds on which an award can be set aside by the Regional Court of Justice, as per Article 15 of the TIAC and Article 439 of the TCPC:

• The set-aside grounds that will be considered by the court ex officio are as follows:
• • The award violates public order; or
  • The subject matter of the dispute was not arbitrable under Turkish law.
• The set-aside grounds that the parties may invoke are as follows:
• • One of the parties did not have legal capacity to enter into the arbitration agreement or the arbitration agreement was invalid in terms of the applicable law;
  • The appointment of the arbitrator(s) was in breach of the procedure specified by the parties or prescribed in law;
  • The award was rendered after the specified timeframe had elapsed;
  • The arbitral tribunal made an unlawful determination on its competence or incompetence;
  • The arbitral tribunal ruled on matters falling outside the scope of the arbitration agreement, or ruled infra petita or beyond the scope of its powers;
  • The arbitral proceedings were conducted in a manner that was contrary to the applicable procedural rules determined by the parties or, in absence of such, to the rules contained in law, to the extent that the substance of the award was thereby affected; or
  • The principle of equal treatment was violated.

The decision on the set-aside of the award is subject to appeal before the Court of Cassation, as per the TCPC.

Answer ... With respect to awards under the TIAC, a set-aside claim must be filed within 30 days of the date on which the parties are notified of the award or a decision relating to its correction, interpretation or completion. For awards under the TCPC, this timeframe is one month from the date of such notification.

Answer ... Pursuant to Article 15/A-5 of the TIAC, the parties may fully or partially waive their right to file a set-aside claim, except on the grounds that the court will consider ex officio – that is, public policy and arbitrability. According to this article, parties that have their place of domicile or habitual residence outside Turkey may fully or partially waive this right through an explicit provision in the arbitration agreement or a subsequent written agreement. The TCPC does not provide for such waiver with regard to domestic awards.

Answer ... Turkish arbitration law contains no explicit or implicit provisions on the confidentiality of arbitrations seated in Turkey. Given that Turkish law acknowledges the principle of publicity of adjudications concerning civil law disputes, as per Article 28 of the of the Turkish Civil Procedure Code (TCPC), the parties may ensure the confidentiality of the arbitration through other means, such as:

• entering into a confidentiality agreement;
• referring to arbitration centre rules on confidentiality; or
• requesting a provisional measure in this regard from the tribunal as per Article 6 of the Turkish International Arbitration Code (TIAC) or Article 414 of the TCPC.

However, pursuant to Article 6 of the TIAC and Article 414 of the TCPC, a provisional measure ordered by the tribunal concerning the confidentiality of an arbitration will be abolished on its own motion once the award becomes enforceable or as a result of the dismissal of the case by the tribunal. In addition, even a confidentiality agreement between the parties may be insufficient to preserve the confidentiality of the information therein, as set-aside proceedings and enforcement proceedings before the national courts are subject to the provisions of the TCPC, which embraces the principle of publicity of adjudications.

Answer ... Given that there are no direct legal provisions on the confidentiality of arbitration proceedings, there are also no exceptions in this regard.