Sayfa 23COURT-ORDERED CONSOLIDATION IN INTERNATIONAL COMMERCIAL ARBITRATION…
Av. Arb. Gizem YILMAZ…
ÖZET
Ticari ilişkilerin dinamik yapısı karşısında, bu ilişkilerden doğan uyuşmazlıkların…
Anahtar Kelimeler…
Bağlantı, emredici, rıza, uyumluluk, yetki.…
EXTENDED SUMMARY…
In the face of the dynamic nature of commercial relations, it is inevitable that the methods applied in resolving disputes arising from these relationships must also be open to change and development. International commercial arbitration requires a more liberal and flexible approach under special laws and rules due to its varying needs and characteristic features. The interaction …
Since arbitration is a voluntary and consensual dispute resolution mechanism, for many years, it has been accepted that the consolidation of arbitrations depends on the will of the parties. However, today there is an increasing tendency to consolidate commercial arbitration cases where disputes or parties are related to each other. Based on the idea of effective dispute resolution, the vast majority of arbitration institutions encourage the consolidation of arbitration cases by including detailed regulations regarding the consolidation procedure in their rules. If all parties agree on consolidation, arbitrations can always be combined without encountering any legal issues. However, if the parties cannot reach an agreement and there is no clear provision for consolidation, the question of whether consolidation can be made arises.…
In a situation where the parties remain silent, the decision on consolidation will depend on the rules governing the arbitration. Some arbitration rules grant authority and permission for the consolidation of cases against the will of the parties. The majority of disputes also arise in situations where consolidation is initiated by a state court, arbitration institution, or panel of arbitrators.…
In some cases, it may be necessary to consolidate cases in order to render a healthier judgment. Indeed, a single consolidated case can serve the interests of international commercial arbitration as a whole by allowing disputes to be resolved consistently within a single proceeding. Particularly, the ability of arbitrators to decide to consolidate cases—without being bound by party consents—when the predetermined conditions are met can enhance the effectiveness of arbitration in complex commercial disputes, as it ensures the resolution of the dispute and the continuity of commercial life.…
According to us, the decision to consolidate should be made by arbitrators, courts, or the institution’s tribunal, provided that certain criteria such as compliance with existing legislation, effective resolution of the dispute, and efficiency are met, without being strictly tied to the consent of the parties, in order to uphold …
In recent years, it is seen that arbitration is emphasized as a litigation activity in the arbitration rules that have been reorganized in accordance with the requirements of international trade. In this regard, decisions are being made that consolidation can be done without the consent of the parties if certain conditions are met. This approach in judicial decisions has also been incorporated into the arbitration legislation of some countries. Institutions, through recent amendments to their arbitration rules, grant the authority to consolidate arbitrations to the relevant institution’s Council or arbitral tribunal under various conditions, without resorting to the parties’ consent.…
It is a positive development that rules regarding arbitration are included as procedural mechanisms and transformed into legal regulations. However, the arbitrators’ decision to consolidate arbitrations based on their jurisdiction without the consent of the parties has not yet become a widely accepted practice. In the Turkish arbitration rules and practices, which are strictly tied to the will of the parties, there is no provision or approach for the consolidation of cases except the will of the parties. The consolidation of arbitration cases is only possible if explicitly requested by the parties or if there is a consolidation provision in the rules chosen by the parties for arbitration. Unless this approach changes, it does not seem feasible for courts, tribunals or institutions to consolidate cases.…
In this paper, after providing brief information on the emergence of the procedure for consolidating arbitration cases, we will examine the consolidation rules adopted by arbitration institutions in recent years, discussing the suitability of these practices to the nature of international commercial arbitration and providing an approach from the perspective of Turkish law.…
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