226 / 516
order, the parties may only fix the rental within certain limits
with their free will. Therefore, the authority of the parties on
the relevant matter is limited. Moreover, the lessee is not oblig-
ed to pay the rental claimed by the lessor.”
(Court of
Cassation, 3rd Civil Chamber, decision dated 2.12.2004 and
numbered 2004/13018 E., 2004/13409 K.)
As the fixation of rental is related to the social policy of states, the
parties may not dispose on the relevant matter with their free will.
Consequently, it may be supported that the actions pertaining to fixa-
tion of rental are non-arbitrable.
The Turkish Court of Cassation renders decisions supporting the
non-arbitrability of the disputes pertaining to eviction of the immov-
able
3
. The Turkish Court of Cassation opines that, taking into consid-
eration the provision on the jurisdiction of civil courts of peace and as
the relevant matter is related to public order, the said disputes may not
be resolved by arbitrators.
Commercial Rental Agreements
Law No. 6570 includes provisions in favor of the lessee, as the
lessee is the less- favored party in rental agreements. As is known, the
said Law does not make a distinction between residential and com-
mercial rentals, nor rental agreements concluded by and between com-
mercial and private parties. However, it is not possible to say that one
of the parties is less favored in rental agreements concluded by and
between merchants.
In some of the European countries such as Germany and
Switzerland, only the rental agreements pertaining to residential
rentals are outside of the scope of international commercial arbitra-
tion
4
. It may be said that this distinction is accurate since the merchants
may not really need more favorable or additional statutory protection
as much as ordinary individuals need, as they are highly sophisticated
212
NEWSLETTER 2012
3
Court of Cassation, 6th Civil Chamber, decision dated 10.07.1970 and numbered 3170 E.,
3032 K.
4
HUYSAL
, p. 134