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Arbitration Clauses Incorporated by Reference
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Att. Fatih Isik
Introduction
Standard contracts and general terms and conditions are common-
ly used in international trade to agree upon the details of the contracts,
and to minimize negotiations. Standardized rules and contracts that are
used in such a manner are incorporated via reference into the text of
the main agreement concluded between the parties. Some of the stan-
dard contracts, such as those prepared by FIDIC and BIMCO, include
arbitration clauses, as well. If the standard contract is incorporated into
the main agreement, the arbitration clause within the standard contract
is also incorporated, and the arbitration agreement between the parties
is concluded as an “arbitration agreement incorporated by reference.”
In General
The conditions of conclusion of an arbitration agreement by refer-
ence are discussed in international law. Due to the fact that standard
contracts are not separately signed by the parties, it can be claimed that
the arbitration agreement does not fulfill the written form requirement
1
.
Apart from the fact that such condition pertains to the form of the arbi-
tration agreement, it is also closely related to the existence of the con-
sent to arbitrate
2
. Eventually, the form requirements usually demon-
strate the consent of the parties beyond a reasonable doubt.
There are controversial opinions in Turkish law and comparative
law concerning arbitration clauses that are incorporated by reference.
168
NEWSLETTER 2015
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Article of June 2015
1
Turgut Kalpsüz
, Tahkim Anlaşması, Ünal Tekinalp’e Armağan, Bilgi Toplumunda Hukuk,
Istanbul 2003, p. 1038.
2
Nuray Ekşi
, Milletlerarası Deniz Ticaret Alanında “Incorporation” Yoluyla Yapılan Tahkim
Anlaşmaları, Istanbul 2010, p. 47-48.