186 / 522
Turkish Law
In accordance with Article 4/2 of International Arbitration Law
(“IAL”) that stipulates the written form requirement in Turkish law,
“
an arbitration agreement shall be deemed concluded by reference to
a document including an arbitration clause, with the intent to render
such document as a part of the main contract.
” Therefore, incorpora-
tion of an arbitration agreement via reference is explicitly allowed in
Turkish Law.
The Court of Cassation applies this rule. Moreover, the Court of
Cassation decided accordingly prior to the entry into force of the IAL.
The 19
th
Civil Chamber of the Court of Cassation decided in 1997 that
due to the fact that the parties agreed to resolve the disputes arising
from the agreement as per the FOSFA rules that contain arbitration
clauses and, as well, the parties shall be able to apply to arbitral tri-
bunal and enforce the arbitral award
6
. Therefore, it can be deduced that
the Court of Cassation decided in accordance with the New York
Convention by interpreting it broadly
7
.
However, the NewYork Convention does not stipulate whether the
arbitration agreements incorporated by reference fulfill the written
form requirement. However, as per the “
more favorable right
” provi-
sion in Art. VII of the NewYork Convention, the regulation in Turkish
law may be accepted as a more favorable right and, consequently, the
arbitration agreement may be deemed valid
8
.
International Law
The incorporation of the agreement to arbitrate by reference is
accepted in international law as well. Article 7/2 of the UNCITRAL
Model Law explicitly accepts this method. Despite the fact that the
New York Convention does not contain explicit regulations regarding
arbitration agreements incorporated by reference, it is clear that in
170
NEWSLETTER 2015
6
Please see the decision of 19
th
Civil Chamber of the Court of Cassation dated 08.05.1997, num-
bered 1998/9619 E. (file no.) and 1997/4669 K. (decision no.)
(www.kazanci.com.tr).
7
Ercüment Erdem
, Yabancı Hakem Kararlarının Tenfizinde Yazılılık Koşulu, XXVI
Symposium of Commercial Law and Decisions of the Court of Cassation, p. 26.
8
Erdem
, p. 26.