06.ANA METIN ingilizce.18

defendant is made on time and accepted, the action shall be dismissed

in compliance with Art. 5 IAL and the court shall not decide on the

merits of the case.

The Court’s Review of the Arbitration Agreement’s Validity

Even though objection of arbitration is regulated in most national

laws, the extent of review of the arbitration agreement’s validity, in

other words “the degree of review” is subject to distinctive provisions

under different national law systems.

In general, two approaches are adopted with respect to this issue.

The first approach is the opinion which sets forth that courts shall

engage in a complete review and analyze if the arbitration agreement

is valid or not. For instance, United States courts consider the criteria

in the New York Convention and engage in a complete review with

respect to the validity of an arbitration agreement. Moreover, Art. 8 of

the Model Law requires that the court shall determine if the arbitration

agreement is null and void, inoperative or incapable of being per-

formed. In some countries this article is interpreted in a restrictive way.

However, during the drafting of the Model Law, the addition of the

word “explicitly” before the words “null and void” was not accepted,

and it was stated that a complete review would be more appropriate. In

compliance with this in one of its verdicts, the 9

Chamber of the

Court of Cassation concluded as follows: “

The court did not analyze

the objection of the validity of the agreement including an arbitration

clause; the evidence of the plaintiff has not been collected in this

regard. It should be stated that the court did not decide on its lack of

jurisdiction due to an invalid arbitration agreement. Therefore, the

allegations of the plaintiff must be analyzed, evidence in this respect

must be collected and a decision must be rendered afterwards

. (

Chamber of Court of Cassation, date 22.01.2007, Essence No.

2006,25759, Decision No. 2007/109

)

.”

The second approach on this issue is the opinion defending that the

courts should only verify the prima facie validity of the arbitration

agreement/clause without conducting a profound examination. The

prominent view in here depends on the idea that international arbitra-

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