TURKEY Law and Practice Contributed by: Selim Can Bilgin, Tolga Bayrak, H. Orhun Atalay and Arda Ömer Kasap, Kabine Law Office
6.2 Role of Courts Courts’ Role in Interim Measure Decisions Pursuant to Article 6 of the IAL, a party may apply to the state courts for interim relief both before and during the arbitral proceedings where the statutory conditions are satisfied. Such an application is not regarded as incompatible with, or as a waiver of, the arbitration agreement. Courts’ Role in Enforcement of Interim Measures The courts also play a supporting role in the enforce - ment of interim measures ordered by an arbitral tri- bunal. Where a party fails to comply with an interim measure ordered by the arbitral tribunal, the other party may request the assistance of the court of first The status of emergency arbitrator decisions and oth - er tribunal-ordered interim measures remains unset- tled under Turkish law. The IAL does not provide a clear mechanism for their direct enforcement. Moreo - ver, as explained above, interim measures ordered by arbitral tribunals are not directly enforceable through the execution authorities (see 6.1 Types of Relief ) and cannot produce effects vis-à-vis third parties. Conse - quently, where coercive enforcement is required, the assistance of the competent state court must gener - ally be sought. 6.3 Security for Costs The IAL does not expressly regulate security for costs in arbitration, nor does it prohibit arbitral tribunals from ordering such relief. Accordingly, where the parties have agreed to confer such authority on the tribunal, including through the incorporation of institutional arbitration rules providing for security for costs, there is no impediment under Turkish law to the arbitral tri - bunal ordering such a measure. This should be distinguished from security required in connection with interim measures. Pursuant to Article 6, an arbitral tribunal may make the grant of an interim measure conditional upon the requesting party provid - ing appropriate security. Where interim relief is sought from the courts (see 6.2 Role of Courts ), Article 392 of the Code of Civil Procedure requires the applicant to provide security to cover any potential damage that instance for its implementation. Status of Emergency Arbitrator
Nevertheless, Turkish courts have recognised the extension of arbitration agreements in a limited num - ber of exceptional circumstances. The case law of the Court of Cassation indicates that non-signatories may, in certain situations, be bound by an arbitration agreement, including: • in the case of assignment or transfer of contract, where the arbitration agreement passes together with the transferred contractual rights and obliga - tions; and • in the case of universal succession, such as inherit - ance or corporate mergers, where the successor assumes the legal position of its predecessor. Article 6 of the IAL empowers arbitral tribunals to order binding interim measures, unless the parties have agreed otherwise. Upon the request of a party, the tribunal may order interim measures or interim attachments and may make such relief conditional upon the provision of appropriate security. The tribunal’s powers are, however, subject to certain limitations: 6. Preliminary and Interim Relief 6.1 Types of Relief • it may not order interim measures or interim attach - ments that require enforcement by the execution authorities or implementation by other public authorities; and • it may not grant measures that are binding on third parties. For example, the tribunal may preclude a party from presenting a letter of guarantee for encashment. It may not, however, direct the issuing bank (a third party) to withhold payment. Similarly, the tribunal may not direct the Land Registry Office (a public authority) to enter restrictions on powers of disposal in the land register.
1027 CHAMBERS.COM
Powered by FlippingBook