Reconsidering the Issues Regarding Validity of Arbitration Agreements Referring to Non-Existing Arbitral Institutions or Including Uncertain References to Arbitral Institutions and the Turkish Experience

Emre ESEN

Article Details

Reconsidering the Issues Regarding Validity of Arbitration Agreements Referring to Non-Existing Arbitral Institutions or Including Uncertain References to Arbitral Institutions and the Turkish Experience

Authors:

Emre ESEN

Publisher:

Istanbul University

Main Topics:

Law

Journal:

Annales de la Faculté de Droit d’Istanbul 2020 Vol. Issue 69, pp.133-165

Document Type:

Article

Publication Date:

12/2020

Document Language:

English

Document ID (Org No.):

2000855865

Frequency:

Monthly

eISSN:

2687-4113

pISSN:

0578-9745

Abstract:

 

Arbitration agreements referring to non-existing arbitral institutions or including undefined references to arbitral institutions are significantly observed in international arbitration practice. Validity of such arbitration agreements becomes debatable due to the pathological intent thereof. If the pathology may be resolved by way of interpretation in the manner that leaves no room for doubt, the ideal solution is resolution of such problems by way of interpretation by means of supporting parties’ common intent towards arbitration and of protecting legitimate expectations of parties in compliance with bona fides principle. However, if interpretation of an undefined reference in an arbitration agreement leads to uncertainty about competence of certain arbitral institutions, such agreement aimed at institutional arbitration either may be accepted to be turned into an agreement aimed at ad hoc arbitration or may be held null-and-void, depending on position of law of seat of arbitration. If seat of arbitration is also undefined or non-existing, arbitration agreement shall be held incapable of being performed and null-and-void. Attitude of Turkish courts seems in conformity with the three approaches to a large extent and may be qualified as satisfactory but determining validity of such arbitration agreements without reference to any law applicable and disregarding the right of access to justice should be criticized.

Article Details

Reconsidering the Issues Regarding Validity of Arbitration Agreements Referring to Non-Existing Arbitral Institutions or Including Uncertain References to Arbitral Institutions and the Turkish Experience

Authors: Emre ESEN

Publisher: Istanbul University

Main Topics: Law

Journal: Annales de la Faculté de Droit d’Istanbul 2020 Vol. Issue 69, pp.133-165

Document Type: Article

Publication Date: 12/2020

Document Language: English

Document ID (Org No.): 2000855865

Frequency: Monthly

eISSN: 2687-4113

pISSN: 0578-9745

Issues

Authors:

Emre ESEN

Publisher:

Istanbul University

Main Topics:

Law

Journal:

Annales de la Faculté de Droit d’Istanbul 2020 Vol. Issue 69, pp.133-165

Document Type:

Article

Publication Date:

12/2020

Document Language:

English

Document ID (Org No.):

2000855865

Frequency:

Monthly

eISSN:

2687-4113

pISSN:

0578-9745