The judgment of the Court of Cassation of Turkey (15th Civil Chamber, 26 September 2019, docket no. 2019/2474) seems to raise a delicate issue.
One of the issues decided by the Court, the one on which these comments are made, was whether the arbitral tribunal, which had contradictory expert reports in front of it, had wrongly refused (it is assumed that it had been requested to do so) to appoint its own official expert and to conduct an onsite examination, what was within its authority.
The Regional Court of Appeal, which had been seized of the setting aside of the award, has found that such non appointment justified the setting aside of the award.
The Court of Cassation has reversed such decision on the grounds that the appointment by the tribunal of experts and the decision whether to conduct an on-site examination are procedural issues, and that procedural issues do not concern public policy.
These comments are based on a report, without access to the full judgment. If, as it appears from such report, the Turkish Court of Cassation has really held that procedural issues do not belong to public policy, a breach of due process – which is generally considered one of the basic rights – would not offend public policy. If one reaches an extreme position, one might even say that no procedural public policy exists, what, with due respect, obviously may not be convincing
