Milletlerarası Tahkim Kanunu Uyarınca İptal Davası Açma Hakkından Feragat
Milletlerarası ticaret alanında taraflar aralarındaki uyuşmazlıkları nihai bir çözüme kavuşturmak amacıyla yaygın bir şekilde milletlerarası tahkime başvurmaktadır. Hakem kararı kural olarak nihai olmakla birlikte tarafların bu karara karşı başvurabilecekleri bir kanun yolu olarak iptal davası öngörülmüştür. Çalışmamız kapsamında MTK m.15’de düzenlenmiş olan iptal davası hakkında temel yaklaşım ortaya koyulmakta ve tarafların iptal davası açma hakkından feragat imkânları incelenmektedir. Milletlerarası tahkim hukukunda iptal davası hakem kararına karşı sınırlı ve istisnai nitelikte bir kanun yoludur. MTK belli şartlarda tarafların iptal davası açma hakkından feragat edebileceklerini düzenlemektedir. Ancak, feragat anlaşmasına rağmen hakem kararı Türkiye’de icra edilmek istendiğinde MTK sınırlı ve kanaatimizce yetersiz bir inceleme imkânı sunmaktadır. Çalışmamızda İsviçre ve Fransız milletlerarası tahkim hukukları incelenerek bir çözüm önerisi sunulmaktadır.
Waiver of Setting Aside Action under the Turkish International Arbitration Code
In international commerce, parties frequently use international arbitration to obtain a final decision on their dispute. In principle, the arbitral award is final. However, national laws also provide the setting aside procedure as a recourse mechanism against awards. This article analyses the main characteristics of setting aside action and parties’ right of waiver to initiate setting aside action under Article 15 of MTK (Turkish International Arbitration Code). The setting aside procedure is a limited and exceptional recourse mechanism in international arbitration law. MTK also recognizes the parties’ right of waiver of setting aside action. However, MTK offers a limited and, in our view, insufficient legal protection when parties try to enforce the award in Turkey despite the waiver agreement. In our paper, we propose a solution after studying Swiss and French international arbitration laws.
In international arbitration law, the final award has a binding effect on the parties to the dispute. However, national laws provide also the intervention of State courts at the post-award stage, namely the setting aside procedure. In modern international arbitration laws, the setting aside procedure is a limited and exceptional recourse mechanism against arbitral awards, in principle, before the courts of the seat of arbitration. Some national laws, including Turkish law, also recognize the parties’ right of waiver of setting aside action under certain conditions. This article analyses main characteristics of the setting aside action and parties’ right of waiver to initiate setting aside action under article 15 of the Turkish International Arbitration Code (MTK). It also undertakes a comparative law analysis with Swiss and French international arbitration laws. The setting aside procedure is a limited and exceptional recourse mechanism against arbitral awards. In Turkish international arbitration law, it is the only way of challenging an arbitral award. The limited and exceptional nature of the setting aside action presents itself in the procedural rules, e.g., short time limits to initiate the setting aside action or to decide without holding a hearing unless otherwise decided by the court, and in respect of the grounds exhaustively set out in the MTK. In this view, the setting aside action, which provides a limited review of State courts on the arbitral award, is accepted as an additional safeguard offered to the parties. MTK follows some other examples in comparative law and recognizes the parties’ right of waiver to initiate a setting aside action under certain conditions. In our paper, we first analyze the conditions of waiver and its legal effects under the MTK. The parties’ right of waiver concerns the delicate relationship between the parties’ autonomy of the will and the State courts’ control over arbitration. In principle, the waiver is permitted in situations where the links between the parties and the seat of arbitration are weak. According to Article 15/A, parties can fully or partially waive their right to initiate a setting aside action against the award before Turkish courts. However, parties cannot waive this right when one of them is domiciled or has its habitual residence or place of business in Turkey. Additionally, this waiver should be made with an express clause either in the arbitration agreement or in writing following the signature of the arbitration agreement. Because Article 15/A requires an express and clear agreement of the parties, a general waiver clause, as drafted under Article 35(6) of ICC Arbitration Rules, should not be accepted as a valid waiver agreement. Second, parties may contemplate enforcing the arbitral award at the seat of arbitration notwithstanding the waiver agreement. MTK Article 15/B provides that a party willing to enforce the arbitral award in Turkey should request an enforceability decision from State courts. In this case, Turkish courts shall examine the arbitral award under two grounds of annulment: arbitrability of the dispute and violation of public policy. In this paper, the conditions of waiver agreements and their effects in Swiss and French international arbitration laws are also examined. However, when a party requests enforcement of the arbitral award within their territories despite the existence of a valid waiver agreement, Swiss and French laws consider that award as a “foreign arbitral award,” and all grounds for refusing enforcement become applicable. For instance, Article 192 paragraph 2 of the Swiss Private International Law Code explicitly states, “If the parties have excluded all appeals against the award and enforcement of the awards is sought in Switzerland, the New York Convention of June 10, 1958 on the Recognition and Enforcement of Foreign Arbitral Awards shall apply by analogy.” Compared to Swiss and French laws, in our view, MTK offers a limited and insufficient legal protection when parties try to enforce the arbitral award in Turkey despite the waiver agreement. In this case, it is necessary to consider this arbitral award as a foreign award and submit it to the recognition and enforcement regime. This would not only protect the parties’ interests but would also ensure the protection of the seat of arbitration’s legal order.
