Amendments to Turkish Code of Civil Procedure governing domestic arbitration | Practical Law

Amendments to Turkish Code of Civil Procedure governing domestic arbitration | Practical Law

This article examines the Code of Turkish Civil Procedure (No.6100), which governs domestic arbitration and which was substantially amended in 2011.

Amendments to Turkish Code of Civil Procedure governing domestic arbitration

Practical Law UK Articles 2-522-1806 (Approx. 3 pages)

Amendments to Turkish Code of Civil Procedure governing domestic arbitration

by Ziya Akinci and Selin Ece Onur, Akinci Law Office
Published on 01 Nov 2012 • Turkey
This article examines the Code of Turkish Civil Procedure (No.6100), which governs domestic arbitration and which was substantially amended in 2011.
In Turkey, domestic and international arbitration are governed by different Codes. The Turkish International Arbitration Code (TIAC) governs arbitration arising from international disputes. The TIAC is in line with the UNCITRAL Model Law. Domestic arbitration is governed by the Code of Turkish Civil Procedure, which was substantially amended in 2011.
The articles governing arbitration in the new Code of Turkish Civil Procedure No.6100 are now also based on the UNCITRAL Model Law. The changes have meant that, like international arbitration, domestic arbitration is now also subject to rules based on the UNCITRAL Model Law.
The most important amendment to the previous Code of Turkish Civil Procedure No.1086 related to recourse against the arbitration award. Under the the previous Code of Turkish Civil Procedure No.1086, in domestic arbitration the losing party was entitled to challenge the award, and when the award was challenged the Turkish Supreme Court was able to review the substance of the award. However, under the amended provisions, the only recourse in domestic arbitration is now the setting aside of the award, as is the case for international arbitration.
The grounds to set aside an award are exclusively listed in the new Turkish Code of Civil Procedure No.6100 and can be summarised as follows:
  • A party to the arbitration agreement lacked capacity under the law applicable to him, or the arbitration agreement was not valid under its governing law.
  • The selection of the arbitrators was not in accordance with the agreement of the parties or with the new Code of Civil Procedure No.6100.
  • The award was not given within the time period provided by Law No. 6100 (that is, within a year of a sole arbitrator being selected or, where there is more than one arbitrator, the first meeting of the arbitral tribunal).
  • The arbitrator wrongfully accepted appointment.
  • The award deals with an issue that contains matters beyond the scope of the submission to arbitration, the award does not deal with all the issues, or the arbitrator exceeded his authority by his award.
  • The arbitration proceeding was not in accordance with the agreement of the parties or with the new Code of Civil Procedure No.6100.
  • The proceedings were not in accordance with the equality of the parties or the right to be heard.
  • The subject matter of the award was not capable of resolution by arbitration.
  • The award is contrary to "public policy".
One of the most important developments under the new Code of Civil Procedure No.6100 is that an application to set aside the award does not prevent the enforcement of the award.
The new Code introduces a contemporary approach to the form of the arbitration agreement. Under the new Code , arbitration agreements should be in written form. Furthermore, taking into account evolving technology, arbitration agreements can even be made by letters, fax, telegram, telex or electronic communication. The provision prescribing the form of the arbitration agreement goes on to provide that, if the defendant does not object to the existence of the arbitration, which has been claimed in the claimant's petition, the existence of the arbitration agreement is established.
Another important amendment relates to "interim measures and fact finding". Under the previous Code No.1086, arbitrators could not grant interim measures. However, the new Code gives arbitrators the power to grant interim measures. Moreover, the parties may seek the assistance of the Turkish court to enforce an interim measure granted by the arbitrators.
Finally, the new Code of Civil Procedure No.6100 has limited state courts' intervention in arbitral proceedings, by adding a provision entitled ''help of the court'' which defines where the law expressly permits such assistance.
In conclusion, after the new Code of Civil Procedure No.6100 both international and domestic arbitration are now governed by rules based on UNCITRAL Model Law. The most important amendments in the new law are the non-review of merits, the acceptance of limited grounds to set aside an award and the power of arbitrators to grant interim measures.