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NEWSLETTER 2013

182

The law of the country where the award will be enforced may also

be taken into consideration in order to determine the law applicable

to the substance of an arbitration agreement. However, contrary to the

country where the award’s annulment will be sought, the country where

the enforcement will be sought may not be known during the arbitral

proceedings. Thus, it may not be possible in all cases to utilize the law

of enforcement country as the applicable law to the substance of an

arbitration agreement. However, where the enforcement country is known

beforehand, it is useful to take into account the laws of said country.

Examination of the Validity of an Arbitration Agreement before

National Courts

The validity of an arbitration agreement can be examined before

national courts in the event an objection in favor of arbitration is asserted

or as grounds for refusal of enforcement where the enforcement of the

award is requested, or as grounds for annulment where the annulment of

the award is requested.

Assertion of an Arbitration Agreement’s Existence as an Objection

in favor of Arbitration

Where a lawsuit is initiated before national courts despite the existence

of an arbitration agreement, the other party may raise an objection in favor

of arbitration (i.e. that the dispute must be resolved through arbitration

and cannot be resolved before the national courts due to the presence of

an arbitration agreement between the parties).

The validity of an arbitration agreement brought before the national

courts will be examined in accordance with the conflict of laws rules of

lex fori

In Turkish law, Art. 4/3 of the Act on International Arbitration No.

4686 (“AIA”) distinguishes the applicable law to an arbitration agreement

from the underlying contract, and subordinates the arbitration agreement

to the law chosen by the parties or failing any indication thereon, directly

to Turkish law. Consequently, if the applicable law to an arbitration

Ozel,

p. 80.