Consent to Arbitration; Interpretation It in Light of an Actual Judicial Decision
Burak HuysalLeaving compulsory arbitration aside, the essence of arbitration as a means of resolving a dispute involves the consent of both parties. Consequently, in order to be able to talk about a valid arbitration agreement, having reciprocal and informed consent of the parties for resolving a dispute by means of arbitration appears to be a necessary element. One important issue faced in contemporary arbitration, which is widely used as a means of dispute resolution, is that arbitral decisions can be annulled in light of jurisprudence and doctrinal opinions after a lengthy judicial process. Another issue that is relied upon as a reason for invaliding the consent to apply to arbitration arises out of asymmetrical arbitral clauses. When examining the judicial decisions on this subject, clauses in the arbitration agreements between the parties, especially cases where courts and arbitration are jointly authorized to resolve a dispute, as well as in asymmetric arbitration, are observed to be considered invalid. In order to reach this conclusion in the relevant jurisprudence, the justification is based on the argument that the consent of the parties is neither clear nor precise in both aforementioned cases. The result of this inference is either the annulment of the arbitral award or the rejection of the first objection to arbitration when the issue is initially brought before a judicial organ. Turkish legal doctrine can be observed to be divided between two approaches. While the first group, which constitutes the majority opinion, concurs that the agreements regulating the parallel competence of courts and arbitration are invalid in terms of arbitration, the second group of authors accepts that these arbitration agreements are to be considered valid. This paper will firstly examine the judgements of the Court of Cassation and the doctrinal opinions concerning the parties’ consent to submit to arbitration and asymmetrical arbitral clauses. Subsequently and in light of the examined jurisprudence and doctrinal opinions, the paper will attempt to respond to the appropriateness of the Reginol Court of Appeal judgement, which constitutes the subject matter of this work, and question it’s conformity to the contemporary world.
Güncel Bir Yargı Kararı Işığında Tahkim Iradesi ve Yorumu
Burak HuysalTahkim uyuşmazlık çözüm yolunun özü, zorunlu tahkim bir kenara bırakılırsa, taraf iradelerine dayanmaktadır. Dolayısıyla geçerli bir tahkim sözleşmesinden bahsedebilmek için, tarafların uyuşmazlıklarını hakem eliyle çözme konusunda karşılıklı ve birbiriyle uyumlu iradelerinin varlığı zorunlu unsur olarak karşımıza çıkmaktadır. Günümüzde oldukça yaygın olarak kullanılan tahkim uyuşmazlık çözüm yolu bakımından önemli bir sorun, tarafların tahkim iradelerinin açık ve duraksamaya yer vermeyecek şekilde kesin olması yönündeki içtihat ve doktrin görüşleri kapsamında, uzun bir yargılama süreci sonunda hakem kararlarının kolayca iptal edilebiliyor olmasıdır. Yine tarafların tahkim iradesi bakımından geçersizlik sebebi olarak kullanılan diğer bir durum da asimetrik tahkim kayıtlarında ortaya çıkmaktadır. Çalışmamızda öncelikle tarafların tahkim iradelerinin yorumu ve asimetrik tahkim sözleşmeleri hakkındaki Yargıtay kararları ve doktrindeki görüşler incelenecektir. Konuya ilişkin yargı kararları incelendiğinde, taraflarca yapılan tahkim sözleşmelerinde özellikle mahkemeler ile tahkim uyuşmazlık çözüm yolunun birlikte yetkilendirildiği durumlar ile asimetrik tahkim kayıtlarının geçersiz kabul edildiği görülmektedir. Söz konusu yargı kararlarında bu geçersizlik sonucuna ulaşılırken, belirttiğimiz bu iki durumda da tarafların tahkim iradesinin açık ve kesin olmadığı gerekçesine dayanılmaktadır. Ulaşılan bu çıkarımın sonucu ise ya verilen hakem kararının iptali ya da konu önce yargıya taşınmışsa tahkim ilk itirazının reddi şeklinde karşımıza çıkmaktadır. Diğer taraftan Türk hukuk doktrininin ikiye ayrıldığı görülmektedir. Çoğunlukta yer alan ilk gurup mahkeme ve tahkim konusunda yetkiyi paralel şekilde düzenleyen sözleşmelerin tahkim bakımından geçersiz olduğunu kabul ederken, diğer yazalar ise bu tahkim sözleşmelerinin geçerli olduğunu kabul etmektedir. Çalışmamızın devamında ise asıl çalışma konumuzu oluşturan BAM kararı yapmış olduğumuz içtihat ve doktrin incelemeleri de dikkate alınarak değerlendirilmeye çalışılacak ve yargı kararlarına esas alınan ilkelerin yerindeliği ve günümüz dünyasına uygun olup olmadığı soruları yanıtlanmaya çalışılacaktır.
Arbitration is a method for resolving disputes that is used more and more every day in Türkiye. In addition to the fact that disputes are concluded faster under arbitration compared to state jurisdiction, government policies that support the widespread use of arbitration in Türkiye are an important contribution to the increase in disputes that are referred to arbitration. However, , the traditional approach of the courts to arbitration in practice can sometimes through the contribution of lawyers who adopt this same approach transform arbitration into a mechanism that prolongs disputes rather than one that provides a quick resolution to the dispute. Mandatory arbitrations aside, the essence of arbitration is based on the parties’ consent to settle their disputes before the arbitrators. This is where the problems that have been mentioned appear. In other words, the established approach regarding the judgments of the Court of Cassation and the general view adopted by doctrine is that arbitration is an exceptional means for resolving disputes, and the main authority for resolving disputes belongs to the state courts. Based on this proposition, arbitration agreements concluded by both parties seek for the consent to arbitration to be precise and clear and to exclude any grounds for hesitation. When examining the judicial decisions on this subject, the clauses in the arbitration agreements made between parties are observed to be considered invalid, especially in cases where courts and arbitration are jointly authorized to resolve a dispute as well as in asymmetric arbitration. In order to reach this conclusion in the relevant jurisprudence, the justification is based on the argument that the consent of the parties is neither clear nor precise in both aforementioned cases. The result of this inference is either the annulment of the arbitral award or the rejection of the first objection to the arbitration when the issue is initially brought before a judicial organ. When examining the subject in terms of agreements in which both courts and arbitration are jointly authorized to resolve a dispute, Turkish legal doctrine is observed to be divided between two approaches. While the first group, which constitutes the majority opinion, concurs that the agreements regulating the parallel competence of courts and arbitration are invalid in terms of arbitration, the second group of authors accepts that these arbitration agreements are to be considered valid. The authors who defend the first approach make an interpretation parallel to that provided by judicial organs, base their justification on the acceptance that the main place for the settlement of disputes is the state courts, and therefore accept that the agreements regulating the competence of both courts and arbitration simultaneously are to be considered invalid in accordance with the acceptance that the consent of the parties in this direction in arbitration agreements should be clear and exclude all grounds of hesitation. The opposing approach, on the other hand, accepts that parties may completely restrict the state judiciary by virtue of an arbitration agreement or foresee court or arbitration as alternatives to one another. Pursuant to this view, the consent vis-à-vis arbitration is clear in agreements that provide in parallel the right to apply for arbitration or to the courts. In such agreements, once the right to choose is exercised, the authority to which the dispute is initially submitted for the settlement of the dispute, whether it be the court or arbitration, is authorized to resolve the dispute as a whole for both parties. In judicial decisions, asymmetric arbitration agreements are expressed as the other situation that cripples the consent to arbitration. An asymmetric arbitration agreement is a general concept used for arbitration agreements that give advantage to one party. Asymmetric arbitration agreements can basically be divided into two main headings: (1) agreements that provide one party the right to arbitrate, and (2) agreements that limit the procedural right of one party to the benefit of the other. When examining Turkish legal doctrine, the general view in terms of asymmetric arbitration agreements is that, unlike parallel jurisdiction agreements, to accept asymmetric arbitration agreements as being invalid from the beginning would be wrong without considering the circumstances of a specific case. However, to create the perception that asymmetric arbitration agreements are absolutely to be accepted as valid would also be wrong. Doctrine accepts that asymmetric arbitration agreements which provide the right to apply to arbitration to one party should be interpreted according to the circumstances of the case. In this sense, the most important reservation expressed in terms of the validity of asymmetrical arbitration agreements involves whether an arbitration agreement exists that allows only one party to apply to arbitration and whether the other party is unable to apply either to the courts or to arbitration, the case where both are true would result in a violation of the right of access to justice, and the arbitration agreement would be invalid in such a case. A second reservation on the subject is related to situations where the asymmetry in the agreement is imposed by virtue of the economic advantage of one of the parties. In such cases, asymmetric arbitration agreements is accepted as being deemed invalid due to this negative condition and/or apparent inequality against the weaker party. In this study’s opinion, the main issue stems from the fact that the relevant doctrine still accepts the proposition “arbitration is an exception; the main method is state jurisdiction” as an absolute truth, in agreement with the Court of Cassation and jurisprudence. However, in my opinion, defending that this proposition, which had been accepted decades ago, still maintains its validity is difficult these days. Arbitration is currently widely used in Türkiye’s commercial life. This situation is even more advanced when dealing with international trade. In fact, the widespread use of arbitration that has currently been reached is a direct result of state policy. after the 2000s in particular, the reform realized with regard to the arbitration rules regulated under the International Arbitration Law and the Code of Civil Procedure was reinforced by foreseeing arbitration clauses in almost all public service concession terms and agreements and public-private cooperation agreements, and the establishment of the Istanbul Arbitration Center made disseminating arbitration culture to a much larger base possible. During this period in which the world is going through extremely rapid changes and time is more important than ever, much more beneficial results can be obtained for the Turkish legal system if the judiciary were to keep up with this process and to adopt arbitration as an assistive means for reducing the burden on the state judiciary as well as for providing people with the speed they need, instead of accepting arbitration as an exception. Adhering to such strict and literal interpretations on the existence of the consent to arbitrate in particular is seen as a way for parties who’ve concluded they will ultimately lose a case to prolong the proceedings as much as possible. Having a more supportive and liberal approach to arbitration in the Turkish legal system, one that is in line with similar practices around the world and that considers the rules of interpretation and contract processes prevalent in the field of the law of obligations, will provide great benefits in overcoming many problems and in preserving the principle of keeping contracts alive.