2016.ANA METIN ingilizce.01

EU competition law is part of the public policy of the EU member

States, and arbitral tribunal shall apply ex officio the relevant rules

even if it wasn’t raise by any of the parties. Otherwise, contrariety to

the EU competition law constitutes a ground for the refusal of the

enforcement of the relevant arbitral award on the basis of inconsisten-

cy with the public policy. Additionally, national courts may refer to the

European Court of Justice (“ECJ”), if necessary, in order to determine

the inconsistency of the award with the EU competition law. In con-

formity with Eco Swiss and other relevant cases, the arbitrability of the

competition disputes is accepted under the EU law, and arbitral awards

may be refused to be enforced on grounds of inconsistency with the

public policy in case they contradicts with the EU competition law. It

should be noted that the courts should refuse the enforcement of the

award when the objectives of the competition law is truly jeopardized,

and should adopt a minimalist position regarding the control of the

arbitral awards

A recent decision by the Madrid Court of Appeal

may be a guide

for the future practice in Turkish law. The Court concluded that the EU

law or Spanish law doesn’t preclude the arbitrability of the competition

disputes as long as the relevant award applied the mandatory competi-

tion rules. Contrary to the Swiss law

setting forth the arbitrability of

the disputes having pecuniary nature, The Spanish law provides that

disputes of which the subject matter is at free disposition of the parties

are arbitrable. Therefore, competition law claims are deemed as at free

disposition of the parties under certain jurisdictions. Accordingly, the

decision of the Madrid Court of Appeal should be considered while

determining the arbitrability under Turkish law since the Law No. 4686

118

NEWSLETTER 2015

OECD, Arbitration and Competition, related to a hearing on Arbitration and Competition,

Working Party No.3 meeting of 26 October 2010, p. 13.

Please see:

(Access Date: 04.12.2015)

Auto no. 147/2013, of 18 October 2013.

Article 177 of Loi fédérale sur le Droit International Privé (Federal Statue on International

Private Law).

Please see:

For English text please see:

(Access Date: 04.12.2015).