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objection. Similarly, the party commencing the arbitration proceedings
cannot submit a non-arbitrability objection.
Ex Officio
Examination of the Arbitrability
It is disputed whether arbitrators can examine arbitrability without
any objection having been raised since arbitration proceedings are
strictly connected to the consent of the parties. The legal approach of
the minority in the doctrine is that arbitrators shall take into consider-
ation the arbitrability issue on exceptional occasions where the public
order is violated. However, the majority opinion states that non-arbi-
trability cannot be reviewed
ex officio
since the competence of arbitra-
tors is derived from the consent of the parties and thus, parties may
even execute such arbitral award voluntarily, without the intervention
of any execution authority, even if the dispute is not arbitrable
2
.
The issue of whether the national courts can
ex officio
examine the
arbitrability of a dispute depends on the stage of the proceeding.
Within this regard, it should be underlined that Art. 15 IAL grants the
authority to judges to examine the arbitrability of a dispute without the
request of the parties.
Authority which will Examine the Objection on Arbitrability
The authority which will examine whether the arbitration agree-
ment is arbitrable or not is an important issue if there is a pending case
before the state courts and an arbitration proceeding at the same time.
The authority which will decide on the objection of arbitrability shall
be determined within the context of and in accordance with the rules
on plea of jurisdiction.
There are two opinions in the doctrine on how the court should
proceed in an objection asserted before the court where the arbitration
and the court proceedings are both in Turkey.
The first opinion states that such an objection must be examined
by the court. This opinion bases its explanation on Art. 5 IAL. As per
said article, if a dispute constituting the subject of an arbitration agree-
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NEWSLETTER 2014
2
Burak HUYSAL
, Milletlerarası Ticari Tahkimde Tahkime Elverişlilik, İstanbul 2010, p. 335.