201 / 521
ment has been brought over a court, the other party may raise an objec-
tion of arbitration and where this objection is accepted, the lawsuit
shall be dismissed on procedural grounds. Therefore, the court is
authorized to assess the objection of arbitration. This opinion, accord-
ingly, states that the court shall not just determine the existence of the
arbitration agreement but also analyze the validity of the agreement.
The other opinion holds that the objection on arbitrability shall be
resolved by the arbitrators, pursuant to Art. 7(H) IAL. Pursuant to said
article, the arbitrator or the arbitral tribunal may decide on its own
competence, including the objections on the existence or validity of the
arbitration agreement. Therefore, the arbitrators are authorized to
decide on the existence and validity of the arbitration agreement. In
accordance with this view, the judge faced with an arbitrability objec-
tion has two options. The first option is that the court shall consider the
kompetenz-kompetenz principle and render a decision stating that the
decision on whether the arbitration agreement is arbitrable or not shall
be given by the arbitrators. The second possibility is to give a decision
by making an assessment in accordance with Art. 2/3 of the
Convention on the Recognition and Enforcement of Foreign Arbitral
Awards (“New York Convention”), on whether the application of the
arbitration agreement is impossible or not
3
: The Court of Cassation has
resolved in one of its 2007 decisions that it is within the competence
of the arbitrators to examine the objection
4
.
In case only one of the proceedings is in Turkey, the arbitrators
shall assess the objection in accordance with IAL. If the arbitration is
out of the scope of IAL, then the issue shall be assessed in accordance
with Art. II of the New York Convention.
Timing of the Objection
Art. 7/H IAL stipulates that the objection regarding the incompe-
tence of arbitrators or the arbitral tribunal shall be submitted with the
first plea at latest.
ARBITRATION LAW
185
3
Mustafa ERKAN
, Milletlerarası Tahkimde Yetki Sorunları, Ankara 2013, p. 74.
4
Yargıtay 15. HD, 2007/2145 E., 2007/4389 K., 27.6.2007.