203 / 473
NEWSLETTER 2013
190
has been regulated under the Turkish Commercial Code No. 6102
(“TCC”). Setting aside the new provisions under the TCC concerning the
extension of the arbitration agreement to groups of companies, within the
framework of legal provisions and precedents of the courts, it is stated that
the extension is not possible based on the group of companies’ theory
3
.
In terms of the precedents of the Court of Appeals, it may be seen that
the Court of Appeals attaches great importance to the notion of “party”
in the recognition and enforcement of arbitral awards. In a decision
that indirectly concerns this issue, the Court of Appeals rejected an
enforcement suit directed at the parent company based on an arbitration
agreement signed by the subsidiary
4
. Based on the fact that the parent
company and the subsidiary are distinct legal entities, it is clear that
an arbitral award obtained against the subsidiary may not be subject to
recognition against the parent company
5
. In any case, in the arbitration
proceeding concerning the aforementioned recognition suit, the extension
of the arbitration agreement to the parent company was not accepted.
In addition to the precedents of the courts, Turkish doctrine follows
the view that the extension of the arbitration agreement to a separate legal
entity which did not declare its intent to arbitrate based on its taking part
in the same group of companies may be accepted for only exceptional
cases
6
.
Analysis under Comparative Law
In terms of international arbitration practice, among arbitrators taking
part in ICC arbitration, there is a strong tendency that the arbitration
agreement signed by a company taking part in a group of companies
would be extended to other companies in the group, on the condition
3
ESEN
, p. 101.
4
Decision numbered 1990/2931 E. and 1990/6828 K. of the 11
th
Civil Chamber of the
Court of Appeals. Source:
Cemal ŞANLI
, Uluslararası Ticari Akitlerin Hazırlanması ve
Uyuşmazlıkların Çözüm Yolları, İstanbul 2011, p. 323.
5
Banu (ŞİT) KÖŞGEROĞLU
, Yabancı Hakem Kararlarının Üçüncü Kişilere Karşı Tenfizi,
Gazi Üniversitesi Hukuk Fakültesi Dergisi, C. XV, Y. 2011, Sa.3, p. 4.
6
KÖŞGEROĞLU
, p. 7.