199 / 521
involve different points in different national laws. Therefore, our
assessments shall be primarily based on Turkish legislation.
CPC Art. 408 and IAL Art. 1/4 set forth that issues related to the
in rem
rights over immovable properties are not arbitrable. Pursuant to
said rule, a dispute shall be non artibtrable where the immovable prop-
erties constituting the subject of the dispute are located in Turkey and
the dispute is related to the rights
in rem
over these immovable prop-
erties. The main purpose for the condition stating that the location of
the immovable properties must be in Turkey is that the dispute is of
vital importance for Turkish public order. Immovable properties locat-
ed in foreign countries do not have the same importance for Turkish
public order. In addition to the disputes related to rights
in rem
on
immovable properties, the Turkish Court of Cassation extends the non-
arbitrability principle to some lease contracts as well
1
.
Moreover, Art. 408 CPC and Art.1/4 IAL provide that disputes
related to subjects that are not dependent on the will of the parties shall
not be arbitrable. In this regard, only the issues that the parties can
decide by their own will are arbitrable.
Pursuant to Art.15 IAL, parties can bring an action for the setting
aside of an arbitral award held with respect to a dispute arising from a
non-arbitrable subject in the civil court of first instance.
The Party Entitled to Raise Objection
The determination of the party entitled to submit the objection of
non-arbitrability depends on whether there is a case before national
courts or if the dispute is examined before the arbitral tribunal. Where
there is a case pending before national courts, it is not possible for the
party raising an objection of arbitration to submit a non-arbitrability
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183
1
For example, the Turkish Court of Cassation held that the disputes related to the actions for the
determination of the lease price are not arbitrable Please See.: Y. 4. HD. 11.11.1965 t.,
7792/5764; Y. 4. HD 13.9.1965 t., 6722/4090 (İBD 4. HD/2, s.29 ve s. 110-111)); Y. 3. H.D,
2.12.2004 t., 2004/13018 E., 2004/13409 K..
Similarly, the Turkish Court of Cassation held that parties cannot conclude an arbitration agree-
ment for the disputes related to the evaluation cases for immovable properties that are subject
to the Law on Leases numbered 6570 Please See.: Y. 6. HD. 3.11.1964 t., 375/5196; Y. 6. HD.
10.7.1970 t., 3032/3170 (İBD 1971/1-2, p. 144-145)