206 / 516
The provisions of the CPC governing arbitration have been regu-
lated in line with the IAA. Therefore, both legislations have become
compatible with the UNCITRAL Model Law.
Article 407 of the CPC regulates the scope of application of the
provisions of the CPC governing arbitration. The provisions of the
CPC governing arbitration shall be applicable to disputes which do not
involve a foreign element, as defined under the IAA, and for which the
place of arbitration is designated as Turkey. Furthermore, arbitration is
only valid for disputes in which the underlying matter is subject to the
free will of the parties. Pursuant to article 408 of the CPC, arbitration
is not convenient for disputes arising from rights in rem over immov-
able goods or other transactions of which the parties cannot dispose on
their own will. To this end; disputes related to divorce, inheritance,
bankruptcy and labor act do not overlap with the scope of arbitration.
Article 410 of the CPC regulates that the competent court having
jurisdiction over the works assigned for courts in an arbitration pro-
ceeding is the regional court of justice located at the place of arbitra-
tion. Pursuant to Temporary Article 3/3 of the CPC, the provisions of
the Former CPC which do not contradict with the CPC will be applic-
able until the regional courts start to function. The IAA has designated
such courts as the civil court of first instance. There is no justification
for this difference in the provisions. Therefore, it is supported by the
doctrine that it would have been more appropriate to appoint civil
courts of first instance as the courts having jurisdiction, as it has been
regulated under the IAA.
The Arbitration Agreement
Article 412 of the CPC regulates the definition and form of the
arbitration agreement. The arbitration agreement is defined as an
agreement, whereby the parties agree to refer to resolution by a unique
arbitrator or an arbitral tribunal all or part of the disputes that have
arisen or that may arise between them in respect to a contract or
any other legal relationship. The arbitration agreement may be execut-
ed as a separate agreement or an arbitration clause. In practice, it is
seen that the arbitration agreements are mostly embodied as an
arbitration clause within an agreement governing the relations between
the two parties.
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