- Where to find the arbitration statute? Date of enactment?
The main legal instrument governing international arbitration in Turkish law is the Code of International Arbitration (Milletlerarası Tahkim Kanunu). The code number is 4686, and it was accepted on June 21st, 2001. The law became effective on July 5, 2001, and it was only amended once with the help of Code No. 7101, on March 15, 2018. By the Code no. 7101, Article 15 of the Code of International Arbitration was changed.
(Official Website for The Code 4686:
https://www.mevzuat.gov.tr/MevzuatMetin/1.5.4686.pdf)
- Is it part of the Code of Civil Procedure or is it a separate statute?
The only arbitration process covered by the Turkish Civil Procedure Law is national/internal adjudication. Chapter 11 of The Turkish Civil Procedure Code (No. 6100) lays out the procedures for national/internal arbitration.
(Official Website for The Code 6100:
https://www.mevzuat.gov.tr/MevzuatMetin/1.5.6100.pdf)
The Code of International Arbitration specifies the rules for international arbitration separately. However, the Turkish Civil Procedure Code is relatively recent and updated. As a result, when compared to the system of The Code of International Arbitration, it provides a convenient and adaptable procedure for internal arbitration.
- To what extent does it distinguish "domestic/ internal" arbitration from "international" arbitration?
The Code of International Arbitration's Article 2 outlines the scope of the application and, in doing so, distinguishes between internal and international arbitration. "The element of foreignness" is the key legal instrument to identify the scope covered by Article 2 of The Code of International Arbitration." Article 2 lists the conditions that endow a dispute about the quality of foreignness.
In accordance with the enumeration of Article 2; the dispute has the element of foreignness, and for this reason, the arbitration acquires an international character, in the case of the existence of any of the following situations:
a.The domicile or habitual residence or place of business of the parties to the arbitration agreement are in separate states.
b. The domicile or habitual residence or workplace of the parties and the place of arbitration in cases specified in the arbitration agreement or determined by this agreement are in separate states.
c. The domicile or habitual residence or workplace of the parties and the place where a significant part of the obligations arising from the main contract will be fulfilled or the place where the subject of the dispute is most related are in separate states.
d. At least one of the partners of the company, which is a party to the main contract that constitutes the basis of the arbitration agreement, has brought foreign capital compatible with the legislation on foreign capital incentives.
e. It is necessary to make loan and/or assurance agreements in order to provide capital from abroad for the implementation of the main contract which constitutes the basis of the arbitration agreement.
f. The main contract or legal relationship that forms the basis of the arbitration agreement executes the transfer of capital or goods from one country to another.
In conclusion, if one of the situations above exists, the dispute has the quality of foreignness and the arbitration acquires the international character. The Code of International Arbitration thus discovers the basis for its applicability.
- To what extent is it similar to the UNCITRAL Model Law on International Commercial Arbitration ( www: uncitral.un.org)?
Turkish international arbitration system was influenced by the UNCITRAL Model Law on International Commercial Arbitration, as shown by the preparatory documents of The Code of International Arbitration. Even though the preparation comittee had examined Switzerland's Federal Code on Private International Law as well as French Law and United Kingdom Law, in fact, The draft code was created mainly by the UNCITRAL Model Law. (Official Website for Preparatory Documents: https://www5.tbmm.gov.tr/sirasayi/donem21/yil01/ss712m.htm )
- When did Turkey adhere to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958)? (newyorkconvention.org)
Turkey ratified the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards on 08.05.1991, with the declaration of ratification code no.3731.
(Official Website of the Ratification Code:
- Did Turkey adhere to the European Convention on International Commercial Arbitration (Geneva 1961)? To what extent does it cover matters different from the NY Convention ?
Turkey ratified the European Convention on International Commercial Arbitration on 08.05.1991, with the declaration of the Ratification Code no. 3730
(For the Ratification Code:
https://www.kanunum.com/files/3730-1.pdf)
The European Convention contains provisions on arbitration agreements, arbitration procedures, and applicable law. In case of application to the arbitration institution for the settlement of disputes arising from international commercial relations between real or legal persons whose commercial residence and company headquarters are located in different countries, it regulates the organization and functioning of arbitration.
The European Convention is a supplementary resource that helps the New York Convention.
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.