This article explores the international dimension of the written form requirement for arbitration agreements and examines how this requirement is interpreted under Turkish law. It further analyzes the flexible approach adopted by Turkish courts in recent years.
In general, two key conditions must be satisfied for an arbitration agreement to be regarded as valid. First, the parties must agree to submit their disputes to arbitration rather than to State Courts1. Second, a formal requirement applies: the arbitration agreement must be in writing2. Accordingly, establishing whether an arbitration agreement meets this requirement is a delicate process that requires careful consideration.
According to the applicable national law or international convention to the validity of the arbitration agreement, failure to meet the formal requirements may render the arbitration agreement void3. Thus, to avoid such situation these formal requirements should be fulfilled.
The form requirement of the arbitration agreement is contained inArticle II of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("Convention"). This provision indicates that an arbitration agreement should be made in writing and specifies that such agreements include "an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams." The "in writing" requirement in Article II(2) reflects the legal and commercial context of its time, as evidenced by its reference to the conclusion of contracts "by exchange of letters or telegrams"4. The "in writing" requirement today is understood primarily as a means of providing evidence of the existence of an arbitration agreement 5.
Additionally, Article 7 of the original version of the United Nations Commission on International Trade Law ("UNCITRAL") Model Law included a written form requirement similar to that found in Article II(2) of the Convention. In 2006, revisions to Article 7 of the UNCITRAL Model Law introduced a more flexible approach regarding written form requirement of the arbitration agreements6 and UNCITRAL recommended two types of interpretation for Article II(2) of the Convention7. The first recommendation stated that Article II(2) of the Convention should be interpreted flexibly, without providing an exhaustive list. Consequently, written form requirement can be met even by agreements that are not indicated in Article II(2) of the Convention. The second recommendation emphasized that Article VII(1) of the Convention should be applied to allow parties to rely on more lenient national form requirements than those in Article II. This approach enables states to adopt legislation that reduces or removes the Convention's written form requirement8.
In light of these considerations, authorities agree that Article II of the Convention establishes a "maximum" form requirement that Contracting States cannot exceed.9 Consequently, if a State attempts to impose stricter form requirements, such measures would conflict with and be overridden by the Convention's maximum form standard10.
At thenational level, many jurisdictions also impose awritten form requirement for the arbitration agreements, though their approaches vary in strictness. For instance,Article 178(1) of the Swiss PILAconsiders an arbitration agreement valid if it is "in writing or in any other form that allows it to be evidenced by text." Similarly, the arbitration laws of England, the USA,Hong Kong andSingapore all adopt abroad and flexible interpretationof "written form requirement," extending it to electronic records or written submissions acknowledging the agreement11. In contrast,French arbitration law(Article 1507 of the French Code of Civil Procedure)12 and theSwedish Arbitration Act 2019imposeno formal requirements at allfor international arbitration agreements13.
In Türkiye, according to Article 412 of the Turkish Code of Civil Procedure ("TCCP") and Article 4 of the Turkish International Arbitration Law ("TIAL"), an arbitration agreement must be concluded in writing. Yet, these provisions also expand on what constitutes a valid written form, recognizing that the requirement is met when the agreement is reflected in a document signed by the parties or evidenced through an exchange of communications including letters, telegrams, telex, fax, or electronic messages14. Consequently, when read together with Article 14(2) of the Turkish Code of Obligations, it becomes evident that Turkish law favors a flexible approach to the written form requirement in arbitration agreements.
However, the decision of the General Assembly of the Turkish Court of Cassation dated29 November 2023 constitutes anexception to the general practice in Türkiye. The dispute in question arose from a long-term distributorship relationship with agreements in 2005, 2007, and 2008, each containing an arbitration clause under the Korea Commercial Arbitration Board rules. After the '2008 contract' expired, the parties continued their business relationship de facto until 2017 without signing a new written agreement. When disputes arose, the plaintiff filed a lawsuit while the defendant invoked the arbitration clause. The Court of First Instance and Regional Court upheld the arbitration objection of the defendant, but the 11th Civil Chamber of the Court of Cassation reversed this.
The matter was then referred to the General Assembly, which on 29 November 2023 ruled that the arbitration agreement is invalid by stating that: "For an arbitration agreement to be valid, the parties' intent to arbitrate must be explicitly expressed in writing in a manner that leaves no room for dispute. A clear and definite declaration of intent is an essential requirement for the validity of an arbitration agreement, whether it is structured as a separate arbitration agreement or as an arbitration clause within a contract. In other words, the intent to arbitrate must be stated clearly, unequivocally, and without any doubt. Since referring a dispute to arbitration, outside the general judicial system, based on the parties' mutual consent is an exceptional measure, the validity of an arbitration agreement requires the existence of a clear and definite intention to arbitrate"15 (Emphasis added). Moreover, the Court emphasized that: "(...) Furthermore, even if the relationship between the parties continues under the terms of this agreement after its expiration, it is incorrect to conclude that the arbitration clause in this agreement is also accepted by the parties. (...)".16 Since there was no new written document or evidence showing renewal or extension of the clause, it was deemed ineffective after the 2008 contract expired.
This exceptional decision reflects a strict approach to the written form requirement. However, this requirement should not be interpreted strictly; otherwise, such rigidity may disregard the parties' genuine intention to arbitrate and ultimately hinder access to justice.17 Also, it will be in conflict with the dispositions in the TCCP and TIAL (see above).
The flexible approach was adopted by many Turkish Court of Cassation decisions before the abovementioned decision of the Turkish Court of Cassation General Assembly. Further, in recent years, Turkish Court of Cassation decisions have reinforced this flexible approach. As seen in its decision dated 18 February 2025, the 6th Civil Chamber of the Turkish Court of Cassation18 took into account that "email correspondence conducted by an employee of the company was also viewed by an authorized company representative through email forwarding, and the correspondence was adopted as the basis for continuing the commercial relationship," and concluded that the parties' mutual consent to arbitration expressed via email satisfied the "written arbitration agreement" requirement set forth under Article 412/3 of the CCP.
Similarly, in a decision rendered on 4 December 2024 concerning Article 4/2 of the IAL, the 11th Civil Chamber of the Turkish Court of Cassation19 held that, "although there was no wet-ink signed arbitration agreement between the parties, the fact that the contract sent electronically to the defendant contained an arbitration clause" showed that the claimant's challenge to the existence of the arbitration agreement amounted to an abuse of rights, leading the Court to reject the request to annul the arbitral award.
All in all, the flexible approach in evaluating the validity of arbitration agreements with regards to the written form requirement,
- facilitates alignment with the speed of commercial life,
- reinforces an arbitration-friendly approach,
- enables disputes to be more easily referred to arbitration in accordance with the parties' intent, and
- supports adaptation to the digitalization of business relationships.
Footnotes
1 Julian D.M. Lew, "The Law Applicable to the Form and Substance of the Arbitration Clause", in Albert Jan van den Berg (ed), ICCA Congress Series No. 9 (Paris 1998): Improving the Efficiency of Arbitration Agreements and Awards: 40 Years of Application of the New York Convention, Kluwer Law International, 1999, p. 3.
2 Julian D. M. Lew, p. 4.
3 Sabrina Pearson-Wenger, "Part V, Chapter 16: Good Faith and the Validity and Interpretation of the Arbitration Agreement", in Good Faith in International Commercial Arbitration: Its Application by Arbitral Tribunals to the Parties' Contract and the Arbitration Agreement, International Arbitration Law Library, Volume 70, Kluwer Law International, 2024, pp. 388.
4 Reinmar Wolff, "New York Convention, Article II(1), (2) [Recognition of Arbitration Agreements]", in New York Convention: Article-by-article commentary, 2nd edition, Kluwer Law International, 2019, para. 3. See also; Banu Şit, "Tahkim Anlaşmasının Şekli: Yazılı Şekil Şartı ve İnternet Aracılığıyla Akdedilen Tahkim Anlaşmaları" (The Form of the Arbitration Agreement: The Requirement of Written Form and Arbitration Agreements Concluded via the Internet), Private International Law Bulletin, in Honor of Prof. Dr. Aslan Gündüz, 2005-2006, p. 411; Fatih Aydemir, Türk Hukukunda Tahkim Sözleşmesi (The Arbitration Agreement Under Turkish Law), PhD Thesis, Kocaeli University, Institute of Social Sciences, Department of Private Law, 2016, p. 166, accessed via Turkish Council of Higher Education Thesis Center (YÖK): https://tez.yok.gov.tr.
5 Wolff, para. 3.
6 Hüseyin Afşin İlhan, Tahkim Sözleşmesinin Geçerliliği (Validity of the Arbitration Agreement), Adalet Publishing, 2016, p. 41.
7 www.newyorkconvention.org/media/uploads/pdf/7/3/73_recommendations-2006-a-6-17.pdf.
8 Gary B. Born, "Chapter 3: Formation and Validity of International Arbitration Agreements", in International Arbitration: Law and Practice (Third Edition), Kluwer Law International, 2021, p. 89.
9 İlhan, pp. 44-45.
10 Born, 2021, p. 88.
11 Sabrina Pearson-Wenger, pp. 385-387.
12 H. Ercüment Erdem, "Tahkim Anlaşması" (Arbitration Agreement) in Honor of Prof. Dr. Hamdi Yasaman, On İki Levha Publishing, 2017, p. 246.
13 Sabrina Pearson-Wenger, pp. 385-387.
14 At this point, a confirmation letter may also provide a basis for the formation of an arbitration agreement, within the conditions prescribed by law. Article 21/3 of the Turkish Commercial Code No. 6102 is as follows: "A person who receives a written document confirming the content of statements made through a contract concluded by telephone, telegram, any communication or information technology means, or other technical instruments, or orally, shall be deemed to have accepted that the confirmation letter is in accordance with the contract or statements in question if they do not object within eight days from the date of receipt."
15 Turkish Court of Cassation, General Assembly of Civil Chambers, Case No. 2023/103, Decision No. 2023/1185, Date: November 29, 2023, p. 6, para. 9, Lexpera Database.
16 Turkish Court of Cassation, General Assembly of Civil Chambers, 2023, p. 7, para. 14, Lexpera Database.
17 Ziya Akıncı, "Yargıtay Kararları Işığında Tahkim Şartının Geçerliliği" (The Validity of the Arbitration Clause in Light of the Decisions of the Turkish Court of Cassation), in Hatice Özdemir Kocasakal and Süheyla Balkar (eds.), Arbitration Agreement, On İki Levha Publishing, 1st ed., 2020, p. 86.
18 Turkish Court of Cassation, 6th Civil Chamber, Case No. 2025/285, Decision No. 2025/569, Date: February 18, 2025, Lexpera Database.
19 Turkish Court of Cassation, 11th Civil Chamber, Case No. 2024/6135, Decision No. 2024/8652, Date: December 4, 2024, Lexpera Database. See also a similar decision by the Istanbul Regional Court of Justice, 14th Civil Chamber, Case No. 2023/107, Decision No. 2023/1522, Date: September 29, 2023, Lexpera Database.
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