Effectivity and Validity of Choice of Law, Choice of Court, and Arbitration Agreements Stipulated in Terms and Conditions Under Turkish Law
Berk DemirkolWhile entering into a contract, parties may stipulate in a clause of this contract a special provision envisaging the law applicable to the legal relationship between the parties or the court or arbitral tribunal before which any dispute arising out of, or in relation to, this contract shall be resolved. These stipulations may be envisaged in contractual terms that are qualified as “terms and conditions” or “general conditions”. If these stipulations are found in terms and conditions, the issue of whether they will be effective will be examined within the context of Articles 20–25 of the Turkish Code of Obligations. In Turkish law, there are other applicable provisions to the validity of terms and conditions under consumer and commercial law. However, this paper does not address the validity of choice of law, choice of court, and arbitration agreements in consumer contracts. It discusses the issue of the effect of the aforementioned stipulations found in terms and conditions against the provisions set forth in contract law and the question of when the requirements in these provisions would be deemed satisfied.
Türk Hukukunda Genel İşlem Şartlarında Yer Alan Hukuk Seçimi, Yetki Anlaşması ve Tahkim Anlaşmalarının Hüküm Doğurması
Berk DemirkolTaraflar sözleşmesel bir hukukî ilişkiye girerken, sözleşmenin bir hükmünde, aralarındaki hukukî ilişkiye uygulanacak hukuku ve bu ilişkiden veya bu ilişkiyle ilgili doğabilecek uyuşmazlıkların belli bir mahkemede ya da tahkimde çözülmesini kararlaştırabilirler. Bu düzenlemelere genel işlem şartları altında yer verilmesi de mümkündür. Bu düzenlemelere genel işlem şartları altında yer verilmesi durumunda, bu düzenlemelerin hüküm doğurup doğurmadığının Borçlar Kanunu’nun 20 ilâ 25. maddelerinde yer alan ve genel işlem şartlarına ilişkin olan düzenleme çerçevesinde değerlendirilmesi gerekir. Genel işlem şartlarında yer alan hükümlerin etki doğurmasını sınırlayan çeşitli hükümlere tüketici hukuku ve ticaret hukukunda da rastlanmaktadır. Bu çalışma tüketici işlemlerinde yer alan hukuk seçimi, yetki anlaşması ve tahkim anlaşmalarını incelememektedir. Bu nedenle, bu çalışmada, söz konusu düzenlemelerin hüküm doğurması için borçlar hukukundaki şartların ne zaman karşılanmış olacağı konusu ele alınacaktır.
While entering into a contract, parties may stipulate in a clause of this contract a special provision envisaging the law applicable to the legal relationship between the parties or the court or arbitral tribunal before which any dispute arising out of, or in relation to, this contract shall be resolved. These stipulations may be envisaged in contractual terms that are qualified as “terms and conditions” or “general conditions”. If these stipulations are found in terms and conditions, the issue of whether they will be effective will be examined within the context of Articles 20–25 of the Turkish Code of Obligations.
The fact that choice of law, choice of court, and arbitration agreements are found in terms and conditions does not constitute a factor in Turkish law that leads in and of itself to invalidity or ineffectiveness of these agreements. Neither the legal provisions in the Code of Obligations cause these clauses to be disregarded, nor is there any other particular provision in specific legal provisions allowing the abovementioned stipulations to be concluded, which would preclude the parties from agreeing to these stipulations in terms and conditions. Moreover, choice of law, choice of court, and arbitration agreements that are considered incompatible with the good faith principles, for example, not serving any legitimate purpose, might be deemed invalid.
A person who provides a service or a good to different counter-parties on a regular basis might be inclined to envisaging choice of law, choice of court, and arbitration agreements in their standard contracts. In terms and conditions, these agreements will be effectively concluded if (1) this person provides their counter-party with the information that the contractual relationship between the parties includes and refers to terms and conditions, (2) this person provides their counter-party with access to these terms and conditions including the abovementioned clauses, and finally, (3) the counter-party accepts being bound by the terms and conditions.
The counter party who concludes the contract is informed of the use of terms and conditions and is allowed access to the context of these conditions when it receives the hard copy of a standard contract or its electronic version (especially in cases where the contract is concluded online). The standard contract may include a choice of law clause determining the law applicable to the contract or a jurisdiction or arbitration clause determining the jurisdiction of competent courts or arbitral tribunal that will hear any dispute arising out of or in relation to the contractual relationship established by the contract involving the general conditions. Existence of such clauses in the terms and conditions does not require the drafter of the standard contract to provide specific and detailed information to the counter party as to the inclusion and application of these clauses into the standard contract or terms and conditions. Articles 20–25 of the Turkish Code of Obligations do not require the drafter to make sure that the counter party has understood well the meaning of these clauses. Giving information generally on the use of the whole set of general conditions would and should suffice without the need to identify specifically any condition among the others. Similarly, it is not required that the counter-party give its specific consent for each and every clause including choice of law, choice of court, and arbitration agreements.
By the same token, the last condition for the effectivity of these conditions will be met when the counter-party accepts the use of terms and conditions. It is not necessary that the counter-party provide special consent in relation to the choice of law, choice of court, or arbitration clauses so that these clauses become effective. This consent may be given either by signing the text of the standard contract including these clauses or by signing the contract, which includes a clause that refers to an external text including the choice of law, choice of court, or arbitration clauses. In a contract concluded online, the counter party would be deemed having accepted these clauses when it clicks the relevant box, whereby it agrees to the contract or the general conditions. This method is sufficient even to satisfy the formal requirement of jurisdiction and arbitration clauses: Clicking such boxes online satisfies the written condition of these clauses.
Finally, including choice of law, choice of court, or arbitration clauses in terms and conditions shall not be deemed surprising. Thus, the inclusion of these clauses will not trigger Article 21(2) of the Code of Obligations. In principle, the inclusion of these clauses is not against good faith principles.
