TURKEY Law and Practice Contributed by: Selim Can Bilgin, Tolga Bayrak, H. Orhun Atalay and Arda Ömer Kasap, Kabine Law Office
based on the existence of an arbitration agree - ment, explaining that a creditor seeking to place the debtor into bankruptcy on the basis of a disputed receivable must first obtain an arbitral award establishing that receivable before pursuing a bankruptcy claim before Turkish courts. 3.3 National Courts’ Approach Turkish law contains an express conflict-of-laws rule for determining the law applicable to the arbitration agreement in international arbitration: • Article 4 of the IAL provides that an arbitration agreement is valid if it complies with the law chosen by the parties to govern the arbitration agreement or, in the absence of such a choice of law, with Turkish law. Since parties rarely make a separate choice of law for the arbitration agree - ment itself, Turkish courts will in most cases assess the validity of an arbitration agreement in a Türkiye- seated arbitration, under Turkish law. • Article V(1)(a) of the New York Convention (see 12.1 New York Convention ) and Article 62 (1)(e) of the IPPL provide that recognition or enforce - ment may be refused if the arbitration agreement is invalid under the law chosen by the parties or, in the absence of such a choice, under the law of the country where the award was made. If a party commences court proceedings in breach of an arbitration agreement, pursuant to Article 116 of the CCP, Turkish courts must and do take into account arbitration agreements and dismiss cases on proce - dural grounds where: • the arbitration agreement governing the same dispute is not invalid, inoperative or incapable of being performed; and • the respondent invokes the arbitration agree - ment as a preliminary objection in its statement of defence; otherwise, the defendant is deemed to have tacitly accepted the jurisdiction of the state courts and to have waived the arbitration agree - ment. One notable aspect of the enforceability of arbitration agreements concerns the validity threshold applied by the Court of Cassation. The Court has consistently
held that the parties’ intention to submit their disputes to arbitration must be clear, definite and unequivocal. Accordingly, arbitration clauses that cast doubt on the parties’ commitment to arbitration may be found inva - lid. For example, clauses that simultaneously provide for arbitration and confer jurisdiction on state courts have repeatedly been held invalid on the ground that no definite intention to arbitrate can be established, as well as clauses containing contradictory arbitration clauses. 3.4 Validity Turkish law expressly recognises the rule of separa - bility. Pursuant to Article 7 (H) of the IAL, an arbitral tribunal’s decision that the underlying contract is inva - lid does not, by itself, render the arbitration agree - ment invalid. Therefore, the validity of the arbitration agreement must be assessed independently from the validity of the main contract, and accordingly, an arbi - tration agreement may remain valid and enforceable even if the contract in which it is contained is found to be invalid. Subject to bases on which the arbitrators may be chal - lenged (see 4.4 Challenge and Removal of Arbitra- tors ), the parties are free to determine who to appoint as arbitrators, the number of arbitrators, and the pro - cedure for their appointment. The principal manda - tory limitation under the IAL is that the arbitral tribunal must consist of an odd number of arbitrators. Subject to this requirement, the parties enjoy broad autonomy in designing the appointment procedure. For domestic arbitrations, Article 416 (1)(p) of the CCP provides that, where the arbitral tribunal consists of more than one arbitrator, at least one arbitrator must be a lawyer with no less than five years of professional experience. No equivalent qualification or experience requirement exists under the IAL for international arbi - trations. 4. The Arbitral Tribunal 4.1 Limits on Selection
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