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.