The Turkish International Arbitration Law of 2001 (“TIAL”), which is based on UNCITRAL Model Law of 1985, is applicable to international arbitrations. Considering the configuration stage of arbitration rules, parties can benefit from the extensive liberty provided by TIAL.
The Turkish
International Arbitration Law of 2001 (“TIAL”), which is based on UNCITRAL
Model Law of 1985, is applicable to international arbitrations. Considering the
configuration stage of arbitration rules, parties can benefit from the
extensive liberty provided by TIAL. Indeed, pursuant to the latter,
parties can: deviate from all prescribed provisions of TIAL but those which
relate to interim measures, arbitrability, adherence to equality of the parties
and their right to be heard in an adversarial proceeding; request an extension
to the arbitration term before the competent court; and TIAL’s scope of
application and the procedure to be followed when a claim subject to
arbitration is brought before a national court.
Pursuant
to TIAL, commencement of arbitration proceedings and the arbitration period
represent two different concepts on which parties may consent on specific
dates, respectively. Otherwise, TIAL states that the latter encompasses a
one-year period; if there is a sole arbitrator, starting from latter’s date of
appointment; or if there exists more than one arbitrator, beginning from the
date of production of the first minutes of meeting. As per the former,
TIAL codifies that arbitration proceedings commence on the dates of the
following events, depending on the parties’ agreement; firstly, in the absence
of any specific indication, application to the competent court or to the
individual or institution that is empowered by the parties to appoint
arbitrator(s); secondly, communication of claimant’s appointment of its own
arbitrator to the respondent, where parties are together responsible for
appointing the arbitrator(s); and lastly, communication of request for
arbitration to the respondent where the arbitration agreement specifies the
names of the arbitrator(s).
TIAL
stipulates that parties must submit the relevant evidence within the timeframe
determined by the arbitrator. However, in principle, parties may agree
otherwise. If such is absent, after commencement of arbitration, the
arbitrators and the parties may agree on rules of taking evidence, preferably
by considering prominent sets of rules like the IBA Rules on the Taking of
Evidence in International Arbitration. Also, during the course of
proceedings, the arbitral tribunal may decide to appoint an expert or an expert
committee.
Although
TIAL does not specifically stipulate a provision concerning the confidentiality
of arbitration proceedings, the concept of confidentiality is recognized in
practice and parties may achieve confidential proceedings through agreed
arbitration rules that include confidentiality. For example, Article 21
of the Rules of Arbitration of Istanbul Arbitration Center (“ISTAC”) states
that unless otherwise agreed, arbitration proceedings are confidential and upon
request of a party or parties, the arbitral tribunal may take appropriate
measures in order to maintain confidentiality and protect the trade secrets of
any party.
Where
a place in Turkey is selected to be the seat of arbitration, the arbitral
tribunal or the sole arbitrator may convene in another place, provided an
earlier notice is made to the parties in case of any logistical or practical
concerns that could potentially hinder conducting an effective
arbitration. It should be noted that this flexibility is often found in
modern governing rules of arbitration.
For further
information on international arbitration and Turkish arbitration practice, please
contact us at info@guzeloglu.legal.
This article first appeared in the second Edition of Global Legal Insights–International Arbitration; published by Global Legal Group Ltd, London.