206 / 521
tion is prior and superior to state courts with respect to the resolution
of disputes
6
. The defenders of this approach oppose to the prolongation
of arbitration process and defend that this process will be prolonged in
the courts and arbitration would lose its function. It is observed that
French law actually supports this opinion. Art. 1458 of the French
Code of Civil Procedure reflects this view and includes one of the
strictest articles to that extent. In accordance with said article, if a dis-
pute pending before an arbitral tribunal on the basis of an arbitration
agreement is brought before a state court, the court shall declare itself
incompetent. In case the dispute is not yet before an arbitral tribunal,
the state court shall nevertheless declare itself incompetent, provided
that the arbitration agreement is not manifestly null and void.
Accordingly, in France, courts may only engage in a superficial review
of an arbitration agreement in case of objection of arbitration; and
upon deciding on the existence of an agreement, the objection may be
accepted. The jurisdiction to review the validity of an arbitration agree-
ment has been left to arbitral tribunals.
Conclusion
Arbitration is based on the voluntary resolution of disputes
between parties by persons called arbitrators in arbitral tribunals
instead of national courts. In this regard, where a party brings a dispute
before the court which is subject to an arbitration agreement, the
defendant may invoke the arbitration agreement. Objection of arbitra-
tion is regulated under national laws and international regulations on
arbitration. It is important that even though the parties are determined
to solve the dispute through arbitration, if a party applies to the state
court, the other party is entitled to make an objection. Likewise the
party who seeks to prevent the arbitration proceeding mostly resorts to
state courts and tries to hinder the proceeding. In this context the objec-
tion of arbitration and the degree of review of the courts are important
with respect to the effectiveness of the arbitration proceedings.
190
NEWSLETTER 2014
6
Bilgehan YEŞİLOVA
, Milletlerarası Tahkimin Hukuki Niteliği Üzerine Düşünceler ve Güncel
Gelişmeler, TBB Dergisi, Sayı 76, 2008, p. 124.