135 / 522
on International Arbitration
10
sets forth a similar provision on arbitra-
bility and the Turkish competition law is substantially similar to the
European competition law.
Arbitrability under the Turkish Law
As above mentioned, the Article 1/4 of the Law No. 4686 on
International Arbitration provides that the disputes at the free disposi-
tion of the parties are arbitrable. Under the Turkish law the main dis-
cussion is the arbitrability of competition law disputes rather than the
refusal of the enforcement of the arbitral awards on the bases of pub-
lic policy. Similar to the American Safety decision, Turkish doctrine is
doubtful about the arbitrability of the competition law disputes due its
mandatory nature and Competition Authority’s expertise on the issue.
Scholars concentrate on the exclusive powers of the Competition
Authority in order to determine the claims at free disposition of the
parties. Accordingly, it is stated that the claims falling within the exclu-
sive powers of the Competition Authority, such as implementation of
administrative fines, are not arbitrable whereas the claims having a
civil nature, such as compensation claims, deemed arbitrable
11
.
The question of determination of the inconsistency of the contracts
with competition law remains discussible. Some scholars state that
prior to rule on compensation claims, the arbitral tribunal should refer
the question of validity of the contract under the competition law to the
Competition Authority; therefore, the parties should submit the ques-
tion to the Competition Authority, and the arbitral tribunal should rule
in accordance with the decision of the Competition Authority
12
.
However, it this method is not in accordance with the EU practice, and
also may attenuate the principle of confidentiality of the arbitration
13
.
In the Eco Swiss, the ECJ stated that arbitral tribunals are not entitled
to request preliminary ruling on the EU competition law from ECJ; a
request of preliminary ruling is only possible at the stage of enforce-
COMPETITION LAW
119
10
Law No. 4686 on International Arbitration entered into force through its publication on the
Official Gazette dated 05.07.2011 and numbered 24453.
11
Burak Huysal
, Milletlerarası Ticari Tahkimde Tahkime Elverişlilik, İstanbul 2010, p. 121-122.
12
Uluç
, p. 55-57.
13
Pelin Güven
, Rekabet Hukuku Ders Kitabı, Ankara 2009, p. 451.