204 / 521
the agreement is null and void, inoperative or incapable of being per-
formed.
Most national laws contain clauses similar to the Model Law and
the related articles require the assertion of the defendant of the exis-
tence, validity and effective implementation of the arbitration agree-
ment. Since the parties are free to waive their right to have a dispute
decided by arbitration, the courts are not obliged
ipso facto
to inspect
the arbitration clause. By not invoking the arbitration agreement the
defendant makes clear that it does not insist on its right to arbitration
but tacitly accepts the plaintiff’s choice of referring the dispute to the
state courts
2
. Generally, it is accepted that the objection of arbitration
must be made before the merits of the case are reviewed.
Article 5 of International Arbitration Law No. 4686 (“IAL”),
inspired by the Model Law, regulates the objection of arbitration. In
accordance with said article; where a claim, which has been resolved
by the parties as the subject of an arbitration agreement, has been
brought before a state court, the defendant may raise an objection with
regards to the referral to arbitration. The allegation with regards to the
objection of arbitration and the resolution of disputes with regards to
the validity of the arbitration agreement is subject to the provisions on
preliminary objections of the Civil Procedure Code (“CPC”). Pursuant
to this article, the objection of arbitration is regulated as a preliminary
objection
3
and may be asserted by the defendant. The period to raise
an objection of arbitration is limited. In case the objection of arbitra-
tion is not proclaimed within the prescribed period, the court may stay
their proceedings and henceforth the parties may not hinder the reso-
lution of the dispute before the state courts
4
. If the objection by the
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NEWSLETTER 2014
2
Julian D M LEW, Loukas A MISTELIS, Stefan M KRÖLL
, Comparative International
Commercial Arbitration, Kluwer Law International 2003, p. 340.
3
Before the entry into force of the CPC, the objection of arbitration was not accepted as a pre-
liminary objection. With CPC, objection of arbitration is accepted as a preliminary objection but
11
th
Chamber of Court of Cassation in its decision dated 16.01.2012, No. 2011/15015 E.,
Decision No. 2012/178 K. stipulated that if the objection of arbitration is not invoked by the
defendant as a preliminary objection, it is possible to allege it with the explicit/implicit consent
of the plaintiff. Additionally Nuray Ekşi states that the objection of arbitration which is not
claimed on time may be invoked afterwards only with the explicit consent of the plaintiff. please
see
Nuray EKŞİ
, Hukuk Muhakemeleri Kanunu’nda Tahkim, İstanbul 2013, p. 121-122.
4
Hakan PEKCANITEZ, Oğuz ATALAY, Muhammet ÖZEKES,
Medeni Usul Hukuku,
Ankara 2013, p. 542.