222 / 522
Arbitrability
In accordance with Art. 15(A)(2)(a) of the IAA, the courts exam-
ine the arbitrability of disputes in accordance with Turkish law, as a
reason to set aside. IAA Art. 1 is comprised of another regulation on
arbitrability
3
. Within this context, disputes regarding the real rights of
immovable properties located in Turkey, and disputes that are not sub-
ject to the will of both parties are not arbitrable. Due to the fact that
there will be no concerns regarding Turkish public order in cases in
which the dispute concerns a real right regarding an immovable prop-
erty that is not located in Turkey, the IAA may be applied, for cases
where the dispute at hand is considered arbitrable in the law of the state
in which the immovable property is located. Other disputes that are
precluded by the Court of Cassation to be resolved by arbitration are
cancellation of title deeds and registrations. The Court of Cassation
also decided that lease-related disputes, such as disputes arising out of
evacuation or rent shall not be resolved by arbitration
4
. The Court of
Cassation has also rendered decisions stating that disputes regarding
labor law are not arbitrable.
5
Within this context, Article 20 of the
Labor Law enables disputes regarding termination of employment
agreements to be resolved through arbitration upon the agreement of
the parties. It is accepted that the disputes regarding trademarks and
patents shall be resolved through arbitration. In addition, disputes that
fall within the competence of administrative procedure shall not be
resolved via arbitration. The only exclusion thereof are disputes aris-
ing out of concession agreements regarding public services
6
.
Breach of the Public Order
Another reason that can be ex officio assessed by the courts, as
governed under Art. 15(A)(2)(b) of the IAA, is the breach of public
order. The meaning of the term public order varies in terms of time and
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3
Civil Procedure Law Article 408 consists of a parallel regulation.
4
4
th
Civil Chamber of the Court of Cassation, dated 11.11.1965, 7792/5764.
5
For dissenting view; Kuru, Baki, Hukuk Muhakemeleri Usulü, 6
th
Edition, Istanbul, 2001,
Volume 6, p.5951; 9
th
Civil Chamber of the Court of Cassation, dated 14.9.1964, 4938/5429.
6
Please see; The Law pertaining to the Principles to be Complied When Applied to Arbitration
in the Disputes Arising out of Concession Agreements Regarding Public Services, Art. 3).