TURKEY Law and Practice Contributed by: Selim Can Bilgin, Tolga Bayrak, H. Orhun Atalay and Arda Ömer Kasap, Kabine Law Office
There is no significant difference between the IAL and the UNCITRAL Model Law. The IAL contains certain minor differences, which mostly stem from adapting the Model Law to the Turkish legal system, rather than
Furthermore, the written form requirement is deemed to be satisfied where the existence of the arbitration agreement is alleged by one party in its statement of claim and not denied by the other party in its state - ment of defence. Another consideration is Law No. 805 on the Man - datory Use of the Turkish Language in Commercial Enterprises, which requires Turkish companies to exe - cute contracts relating to transactions within Türkiye, in Turkish. Albeit not entirely settled, the current posi - tion is that Law No. 805 does not invalidate a foreign- language arbitration agreement where it involves a foreign party or otherwise contains a foreign element. In addition, some courts have relied on the principle of good faith to prevent a party that has signed and performed a foreign-language arbitration agreement from invoking Law No. 805 to subsequently challenge the validity of that arbitration agreement. 3.2 Arbitrability Under Article 1 (4) of the IAL, disputes concerning rights in rem over immovable property located in Tür - kiye and disputes that are not subject to the parties’ disposition are not arbitrable. Accordingly, the general test for arbitrability under Turkish law is whether the subject matter is freely disposable by the parties. Apart from disputes concerning rights in rem over immovable property, Turkish law also treats certain other categories of disputes as non-arbitrable, on the basis that their subject matter is not freely disposable by the parties. For example: • matters involving public law or public policy, including criminal, family, inheritance and tax law disputes; • certain corporate law disputes, although corporate disputes are generally arbitrable. In particular, the Court of Cassation has held that actions seeking the annulment of corporate general assembly reso - lutions are not arbitrable; and • bankruptcy proceedings, although the position remains unsettled. Court of Cassation jurispru - dence on the arbitrability of bankruptcy claims is not consistent. In its latest decision, rendered in 2025, the General Assembly of Civil Chambers upheld the respondent’s preliminary objection
introducing substantive departures. 2.2 Changes to National Law
The IAL has remained largely unchanged since its enactment on 21 June 2001. The only significant amendment was introduced by Law No. 7101, dated 28 February 2018, which added Additional Article 2. Prior to this amendment, there was uncertainty in both the case law and legal doctrine as to whether refer - ences in the IAL to the “civil court of first instance” should be interpreted literally or instead should be interpreted as also referring to the commercial court of first instance, where appropriate. Additional Article 2 resolved this issue by providing that the powers and duties conferred on the civil court of first instance under the IAL shall be exercised by either the civil court of first instance or the commercial court of first instance, depending on the subject mat - ter of the dispute. Since then, no further amendments have been made to the IAL. Pursuant to Article 4 of the IAL, an arbitration agree - ment must be in writing to be valid. However, as per the same article, this requirement is deemed to be satisfied if the agreement is: • contained in a document signed by the parties; or • evidenced by an exchange of letters, telegrams, faxes, electronic communications or other means of communication that provide a written record of the agreement. 3. The Arbitration Agreement 3.1 Enforceability An arbitration agreement may also be incorporated by reference, provided that the reference clearly makes the arbitration clause part of the contract.
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