15th Edition of the Communiqué on International Arbitration Fee Tariffs has been published in the Official Gazette on 08.03.2016. Started to be published in 2001 on an annual basis, the Communique seems to reflect an identical outlook with the preceding edition.
The new
Communiqué, which determines arbitrators’ fees, is applicable where:
·
The parties and sole arbitrator or
arbitral tribunal cannot reach an agreement on the fees, or;
·
The arbitration agreement does not
contain any provision regarding determination of the fee, or;
·
The parties have not made any
referral to any established international guidelines or institutional rules.
Article 2
of the Communiqué states that arbitrators are entitled to be paid for the
performance and works regarding the subject matter conducted between the dates
of initiation of the arbitration until the making of the final award. However,
correction, interpretation or completion of the award does not warrant an
additional payment.
Then,
Article 3 states that the fee for the president of the tribunal is to be
calculated 10% more than each arbitrator’s entitlement.
Also, Articles
4, 5, 6 and 7 regulate the reduction and deprivation of the arbitration fee. Accordingly;
Arbitrators
will be entitled to only one fourth of the determined fee, if;
·
The sole arbitrator or arbitral
tribunal rules that it lacks jurisdiction, or;
·
The claimant unjustifiably does
not submit its statement of claim as per the consented schedule, or;
·
The claimant’s submission of
statement of claim fails to include the essential information and yet it is not
completed under the given time limit by the sole arbitrator or arbitral
tribunal.
Arbitrators
will be deprived of arbitration fee, if;
·
The nomination of an arbitrator is
not accepted by the parties due to said arbitrator’s failure to satisfy agreed
specifications by the parties, or;
·
An arbitrator does unjustifiably
not carry out the duties assigned to him or her, or;
·
An arbitrator who resigns or is removed
from the duty by the agreement of the parties due to his or her absolute or
delayed performance to complete the assigned duties.
If
the termination of arbitration proceedings occurs before an arbitrator or
arbitral tribunal determines the period of time on which the parties are to
submit their evidence, half of the fee; if it occurs after such determination,
full fee is conferred on the arbitrators. Additionally, the Communiqué lists
the following causes for termination by referring to Article 13 of the
International Arbitration Law:
·
If the claimant withdraws his
claim, except where the arbitrator or arbitral tribunal determines that the
claimant has an interest in the final solution of the dispute,
·
If the parties agree to terminate
the arbitration proceedings,
·
The arbitrator or arbitral
tribunal finds that the continuation of the arbitration proceedings is
unnecessary or impossible for any other reason,
·
If the competent court denies the
request to extend the arbitration period pursuant to subsection two of Section
B of Article 10,
·
If the arbitration proceedings
cannot be continued pursuant to subsection two of section B of Article 11,
·
If advance payment for expenses have
not been made pursuant to subsection two of section C of Article 16.
After
that, Article 5 of the Communiqué states that, if a withdrawal, settlement or an
incident which eliminates the subject matter of the dispute concludes the
dispute before the arbitrator or arbitral tribunal determines the period of
time on which the parties are to submit their evidence, half of the fee; if the
abovementioned concludes the dispute before such determination, full fee is
conferred on arbitrators.
In
case of a partial award, Article 6 stipulates that, the fee is to be determined
on the value of the partial award. However, if the partial award is issued as
being the final award, then arbitrators are entitled to the full fee.
Importantly,
if the award is set aside in accordance with the Article 15 of the
International Arbitration Law and same arbitrators are appointed, Article 7 of
the Communiqué underlines that arbitrators’ will be entitled to one fourth of
the fee, if the below mentioned occurs;
·
If the arbitrator or arbitral
tribunal was not composed in accordance with the procedure agreed by the
parties or foreseen in this Act, or,
·
If the arbitrator or arbitral
tribunal's decision as to its jurisdiction was against the law, or,
·
If the arbitrator or arbitral
tribunal rendered an award for matters beyond the scope of the submission to
arbitration or did not render an award for all of the request, or exceeded its
competency, or,
·
The arbitration proceeding was not
conducted in accordance with the procedure as agreed by the parties or, failing
such agreement, in accordance with the provisions of the International
Arbitration Law, and this had an affect on the substance of the award, or,
·
If the parties were not equally
treated, or,
·
If the award is against the public
order.
Following
these, the Communiqué reiterates that the arbitrators are entitled to the fee
at the end of the arbitration proceedings and that arbitrators’ fee shall be
determined pursuant to the Communiqué that is in force at the time of the issuance
of the award. It further provides the below Fee Chart;
|
VALUE OF THE SUBJECT MATTER
|
FEE FOR THE SOLE ARBITRATOR
|
FEE FOR THE ARBITRAL TRIBUNAL COMPOSED OF THREE OR MORE
ARBITRATORS
|
|
For the first TRY 0.5 M
|
5%
|
8%
|
|
For the additional TRY
0.5 M
|
4%
|
7%
|
|
For the additional TRY 1
M
|
3%
|
6%
|
|
For the additional TRY 3
M
|
2%
|
4%
|
|
For the additional TRY 5
M
|
1%
|
2%
|
|
For the values over TRY
10 M
|
0.1%
|
0.2%
|
Should you
require further information about Turkish international arbitration legislation
and practice, please do not hesitate to contact Abdülkadir Güzeloğlu at abdulkadir@guzeloglu.legal or
+902122881010.