TURKEY Law and Practice Contributed by: Selim Can Bilgin, Tolga Bayrak, H. Orhun Atalay and Arda Ömer Kasap, Kabine Law Office
4.2 Default Procedures The IAL provides a default appointment mechanism where the agreed procedure fails. Pursuant to Article 7 (A) of the IAL, the default mechanism applies: • if a party fails to act in accordance with the agreed procedure; • where such procedure requires joint decision-mak - ing, if the parties or the arbitrators cannot reach the required agreement under that procedure; or • if a third person or institution entrusted with the appointment fails to make the appointment. In such cases, each party may request the court of first instance to appoint the arbitrator or arbitral tri - bunal. The IAL does not contain any specific provisions establishing a separate default appointment proce - dure for multiparty arbitrations. 4.3 Court Intervention Court intervention in the appointment of arbitrators is limited to the circumstances prescribed by the IAL, that is, where the agreed procedure fails (see 4.2 Default Procedures ). In that case, the court of first instance may appoint the arbitrator or arbitral tribunal, only upon the request of a party. Pursuant to Article 7 (B) of the IAL, when making the appointment, the court must take into account parties’ agreement and the independence and impartiality of the arbitrators. Also, where the parties are of different nationalities, a sole arbitrator must not be of the same nationality of either party and, in a three-member tri - bunal, two of the arbitrators must not share the nation- ality of either party. Beyond these circumstances, Turkish courts do not have authority to intervene in the selection of arbitra - tors. Issues concerning the independence and impar - tiality of arbitrators may subsequently arise in setting- aside proceedings (see 11.1 Grounds for Appeal ). 4.4 Challenge and Removal of Arbitrators As per Article 7 (C) and (D) of the IAL, an arbitrator may be challenged where they do not possess the quali - fications agreed by the parties, where a ground for
challenge exists under the arbitral procedure agreed by the parties, or where circumstances give rise to justifiable doubts as to the arbitrator’s independence or impartiality. The parties are free to agree on the procedure for challenging an arbitrator. In the absence of such an agreement, the procedure set out in Article 7 (D) of the IAL applies: • A party wishing to challenge an arbitrator must submit the challenge to the arbitral tribunal, and also to the other party. • Where a challenge is unsuccessful, the challenging party may apply to the court of first instance to set aside the decision rejecting the challenge. If a sole arbitrator has been appointed, or if the chal - lenge concerns the entire arbitral tribunal or a suffi - cient number of arbitrators to prevent the tribunal from reaching a quorum, the challenge must be brought directly before the court of first instance. The court’s decision on the challenge is final. Unless the arbitra - tion agreement designates the arbitrator(s) by name, the arbitration may continue through the appointment of replacement arbitrator(s). 4.5 Arbitrator Requirements Turkish law does not prescribe a comprehensive set of professional standards for arbitrators. Its principal requirements concern the independence and impar - tiality of arbitrators and the disclosure of potential conflicts of interest. Article 7 (C) of the IAL mandates an appointed arbitra - tor to, before accepting the appointment, disclose any circumstances likely to give rise to justifiable doubts as to their independence or impartiality. This duty is ongoing in nature; if such circumstances arise or become known after the appointment, and have not previously been disclosed to the parties, the arbitrator must disclose them to the parties without delay. The ISTAC Arbitration Rules adopt a similar, but a little more detailed, approach. Under Article 12, an arbitra - tor must, within seven days of accepting the appoint - ment, sign and submit a declaration of independence and impartiality.
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