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Objection regarding a Dispute being Non-Arbitrable
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Att. Selen Ozturk
Introduction
Arbitration is based on the principle of the resolution of disputes
arising between the parties by arbitral tribunals instead of national
courts, and it is an accepted and frequently preferred alternative dis-
pute resolution method. However, not all disputes may be resolved by
arbitration. Within this context, the determination as to whether a dis-
pute may be resolved by arbitration is defined as arbitrability.
Arbitration is possible in situations where the dispute is definite and
the matter of the dispute is arbitrable.
Arbitrability is regulated under Art. 408 of the Civil Procedure
Code No. 6100 (“CPC”). Pursuant to said article, disputes arising out
of rights
in rem
over immovable properties or disputes, which are not
subject to the will of the parties, are not arbitrable. Moreover,
International Arbitration Law No. 4686 (“IAL”) comprises provisions
regarding arbitrability. As per Art. 1/4 IAL, IAL shall not be applied to
disputes resulting from rights
in rem
over immovable properties and
disputes which are not dependent on the will of the parties.
This article shall briefly examine the notion of arbitrability, the
persons/parties that may raise an objection regarding the dispute being
non arbitrable, the institution/authority authorized to examine this
objection, the scope of the examination by the courts in the event of an
objection as such and the time when the objection may be asserted.
Arbitrability
Arbitrability is the notion provided by states to determine which
disputes may be resolved by arbitration. Accordingly, arbitrability may
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NEWSLETTER 2014
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Article of June 2014