Anonim Şirketlerde Genel Kurul Kararlarının İptali Davalarının Tahkime Elverişliliği

In Swiss law, it is generally accepted that annulment actions are arbitrable. Recently, Article 697n of the Swiss Code of Obligations was enacted, providing a clear regulation that an arbitration clause included in the articles of association will bind all shareholders, the company, and the company’s organs. …

In Turkish law, the traditional view, upheld by the Court of Cassation, is that annulment actions are not arbitrable. However, recent studies reflect a positive approach, influenced by developments in Swiss and German law.…

Based on Article 408 of the Turkish Code of Civil Procedure, which regulates arbitrability, it is not possible to conclude that an annulment action is arbitrable in respect of general assembly resolutions that the parties do not have the authority to dispose of. Additionally, since an annulment decision binds all shareholders, regardless of whether they are parties to the case, it is unacceptable to assume that an arbitration tribunal could issue such a binding decision without statutory authority. Furthermore, accepting an arbitration clause for annulment actions would impose additional economic burdens on shareholders beyond what is foreseen by law and would significantly limit the scope for appeal against arbitral awards, thus restricting shareholders’ rights to initiate annulment actions. Consequently, such an agreement should be deemed null and void.…

Keywords: Joint stock company, general assembly, annulment action, arbitration, arbitrability.…