195 ARBITRATION LAW As a successor to the rights of the shipper, the insurance company initiated enforcement proceedings against the carrier, and the proceedings were stopped upon the objection of the carrier. Thereupon, the insurance company filed a lawsuit for the annulment of the objection against the carrier before the Istanbul 17th Commercial Court of First Instance (“Court”), which acts as a specialized maritime court. The defendant carrier claimed that the Turkish courts had no jurisdiction to resolve the dispute, as there was a reference to the arbitration clause in the charter party (contract of carriage) in the bill of lading, which is binding in terms of the legal relationship between the parties. The objection of the defendant was rejected by the Court at the first hearing dated 29.01.2013. While deciding to reject the arbitration objection, the Court emphasized that the reference to the contract of carriage in the bill of lading related only to the cost of carriage and did not cover the arbitration clause. As a result of the trial, the Court decided to accept the claim on 25.06.2015. On appeal, the Court of Cassation concluded on 12.01.2017 that the Turkish courts have no jurisdiction to resolve the dispute and overturned the trial court’s decision. The Court of Cassation stated that the arbitration clause in the contract of carriage was included in the bill of lading by reference and was valid, and concluded that the dispute should be resolved through arbitration. They based their decision on the wording on the front of the bill of lading stating that it was “to be used with the charter party,” as well as wording on the reverse side stating that “all the terms and conditions, rights and exceptions of the charter party whose date is stated on the reverse of the bill of lading, including the applicable law and arbitration clause, are thus valid.” Complying with the Court of Cassation’s annulment decision, the Istanbul 17th Commercial Court of First Instance decided to dismiss the case on 25.05.2017 due to lack of jurisdiction. After examining the decision of the Court on lack of jurisdiction upon the appeal of the plaintiff, the Court of Cassation upheld the decision of lack of jurisdiction on 04.12.2017. Allegations Regarding the Violation of Rights In his application to the Constitutional Court, the plaintiff claimed that the decision on lack of jurisdiction contradicted the jurisprudence
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