Şirketler Hukuku Uyuşmazlıklarının Tahkim Yoluyla Çözümünde Usul Kuralları

ABSTRACT

The possibility of resolving corporate law disputes through arbitration is intensely debated in the Turkish legal doctrine. Assuming corporate law disputes are deemed arbitrable, an important question to be answered is to determine the procedural rules applicable to arbitration proceedings. The general provisions on arbitration proceedings lead to some uncertainties when the subject matter of the dispute is corporate law. In this context, the party autonomy regarding determination of the seat of arbitration and the foreignness element, which is used to distinguish national arbitration from international arbitration in arbitration proceedings in Turkey, are discussed in the context of corporate law disputes. The conclusion reached in the study is that the current regulations do not provide an ideal and clear framework in terms of corporate law disputes whilst they introduce some uncertainties. At this point, options for new legislations are assessed. Additionally, the effects of the procedural provisions of the Turkish Commercial Code on arbitration proceedings are discussed. Although it disputed in the legal doctrine, the predominant view is that these provisions limit the parties’ autonomy in terms of setting the procedural rules. However, in our opinion, it would not be accurate to draw a general conclusion for the provisions in question, whereas each procedural rule should be evaluated separately based on the purpose of the norm. It is not deemed appropriate to adopt a categoric interpretation of these procedural rules under TCC ass mandatory rules or directly applicable rules.…