224 / 516
Resolution of Rent Disputes through Arbitration
*
Att. Ezgi Babur
Resolution of disputes arising from rental agreements (“lease dis-
putes”) is of great importance, since the arbitral awards with regard to
non-arbitrable matters may be subject to annulment or may give rise to
a ground of refusal of enforcement. If particular subject matter of a dis-
pute is not capable of settlement by arbitration -a non-arbitrable mat-
ter-, the arbitral awards may be challenged for annulment or refusal of
its enforcement. Consequently, the issue, whether the disputes arising
from rental agreements are arbitrable matters, will be further analyzed.
In General
As is known, arbitration, which is an alternative means of dispute
resolution, may only come into question with regard to arbitrable mat-
ters. The term of arbitrability may be defined as whether a certain dis-
pute may be resolved by arbitration or not
1
. The basic principle con-
cerning arbitrability is laid down under Article 408 of the Civil
Procedure Code numbered 6100 (“CPC”). Pursuant to this article, dis-
putes arising out of rights in rem over immovable properties or dis-
putes, which are not subject to the will of the parties, are not arbitra-
ble. Besides the CPC, provisions with regard to arbitrability may be
found in the International Arbitration Act numbered 4686 (“IAA”).
Pursuant to Article 1/4 of the IAA, the relevant act shall not be applied
to disputes arising out of rights in rem over immovable or disputes
which are not subject to the will of the parties. With the said provi-
sions, it is clarified that arbitration may not be referred to as a dispute
resolution process with regard to matters outside of the scope of the
free will of the parties.
210
NEWSLETTER 2012
*
Article of May 2012
1
AKINCI, Ziya
, Milletlerarası Tahkim, 2 nd Edition, Ankara 2007, p. 284 (“AKINCI”).