227 / 516
parties when concluding any contract and usually negotiate to get the
best deal for their interests.
Additionally, merchants are under obligation to act as prudent
businessman. Pursuant to Article 20/2 of the Turkish Commercial
Code numbered 6762, merchants are under obligation to act as prudent
businessmen with regard to their commercial activities
5
. It shall not be
possible that merchants who are expected to act as prudent business-
men claim that they were not aware of the outcomes of the arbitration
clause that may be found in rental agreements.
Conclusion
The disputes arising out of rental agreements vary as per their
qualification and parties of the relevant dispute. Consequently, while
assessing the arbitrability of the said disputes, the case at hand shall be
evaluated in its entirety. The Turkish Court of Cassation opines that the
disputes pertaining to fixation of rental or eviction of the immovable
are non-arbitrable. However, we are of the opinion that especially for
the commercial rental agreements concluded by and between mer-
chants, arbitrability shall have a wider interpretation, as one of the par-
ties is not less favored nor requires additional protection.
ARBITRATION LAW
213
5
This principle is affirmed by Article 18/2 of the Turkish Commercial Code numbered 6102 that
shall enter into force on 01.07.2012.