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Starting an arbitration proceeding
What is needed to commence arbitration?
Unless the parties have agreed otherwise, the arbitration proceedings will commence on the date when:
- an application is made to the first-instance court or relevant person or institution which is entitled to appoint the arbitrator as per the parties’ agreement;
- the claimant appoints its arbitrator and requests that the other party appoint its arbitrator (in cases where arbitrators must be mutually appointed); or
- the request to resolve the dispute through arbitration is received by the other party (in cases where the identity of the arbitrators is determined in the arbitration agreement).
Are there any limitation periods for the commencement of arbitration?
General provisions apply with respect to limitation periods, which may vary depending on the type of dispute. However, the general limitation period under Turkish law is 10 years unless a different limitation period applies.
Are there any procedural rules that arbitrators must follow?
Arbitrators must follow the provisions of the arbitration agreement and the procedural rules chosen by the parties to govern the proceedings.
Are dissenting opinions permitted under the law of your jurisdiction?
Yes, dissenting opinions are permitted under Turkish law.
Can local courts intervene in proceedings?
Under the International Arbitration Law and the Civil Procedural Code, an arbitrator or arbitral tribunal may seek the Turkish courts’ assistance in collecting evidence. Either the parties or the arbitral tribunal may ask the court to compel a witness to give testimony at the start of proceedings if there is a significant risk that it may be either impossible or extremely difficult to obtain a witness statement during these.
Can the local courts assist in choosing arbitrators?
Yes, if the dispute is to be resolved by a sole arbitrator but the parties fail to agree on an appointment, a party may ask the first-instance court to appoint a sole arbitrator. In arbitration with three arbitrators, if a party fails to appoint its arbitrator within 30 days of receipt of the other party’s request to do so, or if the two party-appointed arbitrators fail to appoint the third arbitrator within 30 days of their appointment, the first-instance court will make the appointment.
What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration? Can the courts compel parties to arbitrate? Can they issue subpoenas to third parties?
The International Arbitration Law provides for certain procedural rules regarding the conduct of proceedings. For instance, if a claimant fails to submit its statement of claim in a timely manner or fails to fix deficiencies in its statement within the period determined by the arbitral tribunal, the arbitration proceedings will be concluded. However, if the defendant fails to submit its statement of defence this will be considered an admission of the claimant’s allegations and the arbitrator(s) will continue with the proceedings. Nevertheless, in such a scenario, the defendant must be provided with a proper opportunity to submit its defence and its right to defence should be strictly observed. Again, in the event of the failure of any party to be present at the hearings without any reasonable grounds or to submit evidence in a timely manner, the arbitrator(s) will continue with the proceedings and decide on the basis of the existing evidence in the file.
The participation of third parties in arbitral proceedings is subject to the approval of the parties and the third party concerned.
In what instances can third parties be bound by an arbitration agreement or award?
In principle, an arbitration agreement and an arbitral award are binding only on the parties to the agreement. Under Article 6(2) of the International Arbitration Law, an arbitral tribunal cannot award an interim injunction or an interim attachment that is binding on third parties. However, it is accepted that an arbitration agreement will be binding on third parties in the event of a full succession (ie, insolvency) or a partial succession (ie, assignment).
Default language and seat
Unless agreed by the parties, what is the default language and location for arbitrations?
As stated under Article 9(1) of the International Arbitration Law and Article 425 of the Civil Procedural Code, in the absence of the parties’ agreement on the seat of arbitration, this will be determined by the sole arbitrator or the arbitral tribunal, taking into consideration the circumstances of the case. As per Article 10(C) of the law, the sole arbitrator or arbitral tribunal will determine the language of arbitration unless otherwise agreed.
How is evidence obtained by the tribunal?
The parties may provide their evidence along with their submissions at the pleading stage and/or may refer to evidence to be submitted in the subsequent course of arbitration proceedings. They may also submit witness statements. The parties must submit their evidence within the timeframe granted by the arbitrator(s) by a procedural order. However, the arbitrator(s) must grant sufficient time and proportionate time limits for the parties, in strict compliance with the principles of due process and equal treatment.
The International Arbitration Law does not provide for a document production procedure. If one is provided in the arbitrator(s)’ procedural order or the parties’ agreement, this may be followed.
An arbitrator or arbitral tribunal may also seek the assistance of the Turkish courts when it comes to collecting evidence.
What kinds of evidence are acceptable?
Where they deem it necessary the arbitrator(s) may:
- appoint one or more experts to give evidence on technical aspects of the dispute;
- require a party to give any relevant information to the expert or provide access to any relevant documents, goods or other property for their inspection; and
- request a site visit.
Is confidentiality ensured?
Neither the International Arbitration Law nor the Civil Procedural Code contain any provisions as to the confidentiality of arbitral proceedings. However, one of the reasons for the parties to choose arbitration is that in practice proceedings tend to be private and confidential. The parties may also choose to include a confidentiality clause in the agreement or terms of reference, or may refer to certain institutional rules providing for confidentiality.
Can information in arbitral proceedings be disclosed in subsequent proceedings?
Unless the arbitral proceedings are confidential or the information to be disclosed is of a confidential nature (eg, involving trade secrets or personal data), there is no restriction on disclosing any information divulged in arbitral proceedings in subsequent proceedings.
What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
The Attorney Law sets out the ethical and professional standards which apply to attorneys. These are in line with international ethical and professional principles, such as conflict of interest, confidentiality/professional secrecy, honesty, integrity and fairness.
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