e-book2013

ARBITRATION LAW

189

The extension of the arbitration agreement to companies taking part in

the same group of companies is a subject which should be analyzed.

The extension of the arbitration agreement to third parties is the

name given to cases in which third parties are affected by the arbitration

agreement, by having the quality of claimant or respondent. In terms of

groups of companies, the extension of the arbitration agreement may be

paraphrased as the application of the arbitration agreement to parties

involved in the performance of the agreement or in disputes arising

therefrom, on the condition that they prove that they were aware of the

arbitration agreement based on their position

Importance of the Extension in terms of Recognition and En-

forcement Proceedings

The importance of the extension of the arbitration agreement in

terms of recognition and enforcement proceedings arises from the

fact that a valid arbitration agreement is among the conditions for the

recognition and enforcement of arbitral awards. Indeed, the presence of

a valid arbitration agreement is analyzed in recognition and enforcement

proceedings conducted both according to the International Private and

Procedural Law No. 5718 and the Convention on the Recognition and

Enforcement of Foreign Arbitral Awards dated June 10th, 1958 (the

“New York Convention”). The extension of the arbitration agreement is

of great importance in terms of recognition and enforcement.

Analysis under Turkish Law

As is known, all companies taking part in a group of companies

have a legal entity distinct and independent from the other companies in

the group of companies. However, in some cases, based on intra-group

relations, the parties signing and performing the arbitration agreement

may be different companies.

Considering the actual trend in Turkish law, the practice of forming a

group of companies is quite frequent. Accordingly, the group of companies

Emre ESEN

, Uluslararası Ticari Tahkimde Tahkim Anlaşmasının Üçüncü Kişilere Teşmili,

İstanbul 2008, s. 100.