194 NEWSLETTER 2021 Constitutional Court Decided That Lack of Jurisdiction Decision Rendered due to Arbitration Agreement Does Not Violate the Right to Property* Duygu Öner Ayçiçek Introduction It is well known that the existence of a valid arbitration agreement in dispute resolution eliminates the jurisdiction of the courts. If, despite the existence of a valid arbitration agreement, one of the parties takes the dispute to court and the opponent party raises objection to the jurisdiction, the court must decide that it lacks jurisdiction. This issue, which is frequently discussed before the courts of law, is associated with the right to property. Recently, this right became the subject of a Constitutional Court decision. The applicant filed an individual application with the Constitutional Court, claiming that his right to recovery was abolished as a result of the lengthy trial before Turkish court and the court’s lack of jurisdiction decision rendered due to the existence of a valid arbitration agreement. In its decision on application number 2018/5832 dated 08.08.2021 (“Decision”), the Constitutional Court unanimously decided that the right to property was not violated. The decision was published in the Official Gazette dated 07.09.2021 and numbered 31591. The Dispute Subject to the Decision The dispute arose from damage to the cargo carried in maritime transport. The seller had agreed with the carrier for the transport of exported goods to a foreign port. After arrival, it was observed that the goods had been damaged by sea water. The consignee notified the carrier of the damage on the same date. The cost of the damaged goods was paid to the shipper (seller) within the scope of the insurance policy. * Article of October, 2021
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