171 ARBITRATION LAW If the provision is examined in terms of its application ratione materiae, the arbitrability of corporate disputes, as stated before, is controversial. However, according to the Preamble of the Swiss Code of Obligations Amendment (“Preamble”), disputes regarding annulment and nullity of the general assembly resolutions, termination with just cause, unpaid capital debt, direct or indirect liability of the members of the board of directors and managers, may be submitted to arbitration.7 In terms of application ratione personae, the arbitration clause is binding on corporate bodies, members of bodies and shareholders. However, it is possible to narrow the scope of the arbitration clause in the articles of association in terms of both the application ratione materiae and ratione personae. According to the Preamble, disputes between shareholders cannot be resolved based on the arbitration clause in the articles of association.8 These disputes should be resolved in accordance with the arbitration clause to be included in the shareholders agreement. Suggestions for Turkish Law With an amendment similar to the regulation made under Swiss law, disputes arising from Turkish corporate law may be resolved based on the arbitration clause in the articles of association. Although Turkish legal scholars and Courts of Appeal seem to take a more conservative approach compared to their Swiss counterparts regarding the arbitrability of the disputes related to the dissolution of the company and the general assembly resolutions, an amendment should be made in Turkish law as well.9 In my opinion, paragraph 4 can be added to art. 339 of the Turkish Commercial Code (“TCC”): 7 Message concernant la modification du code des obligations (Droit de la société anonyme), FF, 2017, p. 495. 8 Ibid, p. 495. 9 For discussions and suggestions on this subject, see Erdem, H. Ercüment: “Şirketler Hukuku Uyuşmazlıklarının Tahkime Elverişliliği”, Tahkim Anlaşması, Ed. Kocasakal Özdemir, Hatice/Balkar, Süheyla, İstanbul 2020, p. 1-24.
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