2016.ANA METIN ingilizce.01

This is especially clear in cases where there is no specific reference,

but only a general referral to the standard contract that includes the

arbitration clause. According to one of the opinions, the consent to

arbitrate shall not be deemed explicit in cases where there is no direct

or specific reference

to the arbitration clause, but only a general refer-

ral to the standard agreement or general terms and conditions, includ-

ing the arbitration clause

. Due to the fact that the parties renounce

their rights to apply to national courts by signing the arbitration agree-

ment, the consent to arbitrate should be certain. The general referrals

to the standard contracts only contain the provisions regarding sub-

stantive law; therefore, the necessity of an explicit reference to the

arbitration clause must be sought. As per the opposing view, the explic-

it reference to an arbitration clause should not be mandatory in the

practice of international trade

. With regard to the concept of “prudent

merchant,” it is clear that the reference to a certain text renders such

text as a part of the main agreement, and agreeing on the text means

that the assenting person is aware of the contents of the documents, in

their entirety.

If the consent of the parties is examined, other elements may be

used as evidence for the consent to arbitrate, as well as the explicit ref-

erence to the arbitration clause. For instance, attaching the referenced

text to the main agreement may constitute evidence as the consent to

arbitrate since this action shall enable the parties to be sufficiently

informed of the arbitration agreement by access to the texts. In addi-

tion, factors such as experience of the parties, nature of the reference,

practices of the relevant sector, and whether the parties have conclud-

ed similar agreements before may be taken into consideration in deter-

mination of such consent.

ARBITRATION LAW

169

For a decision containing an explicit reference to arbitration clause please see the decision of

Civil Chamber of the Court of Cassation dated 01.07.2008, numbered 2007/1590 E. (file

no.) and 2008/8780 K. (decision no.)

Emre Esen,

Uluslararası Ticari Tahkimde Tahkim Anlaşmasının Üçüncü Kişilere Teşmili,

Istanbul 2008, p. 164.

Kalpsüz

, p. 1039. For a decision which allows incorporation of arbitration agreement by refer-

ence even though such reference is not explicitly made, please see the decision of the 11

Civil

Chamber of the Court of Cassation dated 13.6.2005, numbered 2004/9458 E. (file no.) and

2005/6114 K. (decision no.)