Merhaba değerli okuyucularımız.

Bu yazımızda Arabuluculuk ve Tahkim şartlarını birlikte içeren Alternatif Uyuşmazlık Çözümü süreçlerine ilişkin bir yazıyı Hukuk İngilizcesi çerçevesinde hazırladık.

Yazının sonunda Kelime Listesi ve Test çalışması da sizi bekliyor olacak.

Keyifli Çalışmalar…

Mediation and Arbitration Under Turkish Law

In the complex landscape of dispute resolution, the integration of mediation and arbitration, commonly referred to as “med-arb,” has gained considerable attention within the legal community. This chapter delves into the intricacies of multi-tier dispute resolution clauses that encompass both mediation and arbitration under Turkish law. We will explore the validity of med-arb agreements, the ramifications of initiating arbitration prior to the mediation’s conclusion, the impact of mediation proceedings, the role of the mediator as an arbitrator, and the admissibility of documents and factual evidence exchanged during mediation. Furthermore, this examination will incorporate insights from comparative laws, international ethics rules, conflict of interest guidelines, and the admissibility of evidence, in addition to Turkish legal provisions.

Validity of Med-Arb Agreements

Turkish law recognizes multi-tier dispute resolution clauses involving both mediation and arbitration, applying equally to domestic and international arbitrations seated in Turkey. The cornerstone of these clauses is the unequivocal consent of both parties to proceed to arbitration should mediation fail. Careful drafting is essential when incorporating med-arb provisions into an agreement, ensuring the clarity of both parties’ intentions. In this regard, the IBA Guidelines for Drafting International Arbitration Clauses offer valuable guidance.

Admissibility and Precondition of Mediation

In cases where one party initiates arbitration without first attempting mediation, Turkish law is silent on the question of admissibility. As in international arbitration practice, the arbitral tribunal must interpret the med-arb agreement to determine whether mediation is a precondition to arbitration. If mediation is a precondition, the tribunal should suspend arbitration proceedings, directing the parties to engage in mediation. However, if mediation fails, the tribunal may resume arbitration. It is important to note that under Turkish law, a precondition of arbitration is regarded as an admissibility issue rather than a jurisdictional one.

Advantages and Considerations

The advantages of med-arb have sparked passionate debates among stakeholders with varying perspectives. Critics argue that initiating arbitration without prior mediation can lead to jurisdictional challenges and increased arbitration costs. Parties should carefully assess the feasibility of resolving their disputes through mediation before committing to a med-arb agreement. Commercially astute parties often attempt to negotiate settlements over an extended period, resorting to arbitration only when reconciliation becomes impossible.

Conversely, parties unable to protect their commercial interests and avoid adjudication may find med-arb agreements an appropriate dispute resolution mechanism.

Mediator’s Role as Arbitrator

In a med-arb agreement, parties may stipulate that the mediator assumes the role of an arbitrator if mediation fails. While neither the Turkish Code of Mediation in Civil Disputes nor the Turkish International Arbitration Code prohibits a mediator from acting as an arbitrator, ethical considerations come into play. Turkish Ethics Rules for Mediators stipulate that a mediator may only act as an arbitrator if there is a written agreement between the parties.

Internationally, scholars and practitioners have raised concerns regarding mediator-arbitrators. These concerns include impartiality preservation, reliance on confidential information, premature mediation failure, and potential abuse of power. Parties should carefully weigh these consequences when choosing an arbitrator with prior mediation experience and make informed decisions accordingly.

Admissibility of Mediation Documents

Turkish law provides guidelines for the mediator-arbitrator’s use of documents produced during mediation for settlement purposes. If the mediator-arbitrator relies on such documents in rendering an award, the extent to which they influence the award may lead to annulment or enforcement refusal of the arbitral award.

ISTAC Med-Arb Rules

In November 2019, the Istanbul Arbitration Center (ISTAC) introduced its Medarb Rules, the first institutional Med-arb rules. These rules reflect international best practices in mediation and arbitration. It is anticipated that ISTAC Med-arb Rules will be warmly received in the international dispute resolution community, further advancing the evolving landscape of med-arb in Turkish law.

As the legal landscape continues to adapt to the nuances of med-arb, understanding the complexities and consequences of multi-tier dispute resolution clauses under Turkish law becomes imperative. Parties and practitioners alike must navigate the evolving legal framework, always striving to strike a balance between efficiency and fairness in resolving disputes through med-arb.

20 phrases from the text

“Multi-tier dispute resolution clauses” – “Çok seviyeli anlaşmazlık çözümü maddeleri”
“Mediation and arbitration” – “Arabuluculuk ve tahkim”
“Med-arb agreements” – “Arabuluculuk-tahkim anlaşmaları”
“Ramifications of initiating arbitration” – “Tahkim başlatmanın sonuçları”
“Impact of mediation proceedings” – “Arabuluculuk süreçlerinin etkisi”
“Admissibility of documents” – “Belgelerin kabul edilebilirliği”
“Factual evidence” – “Gerçek deliller”
“Comparative laws” – “Karşılaştırmalı hukuklar”
“International ethics rules” – “Uluslararası etik kurallar”
“Conflict of interest guidelines” – “Çıkar çatışması kuralları”
“Admissibility of evidence” – “Delillerin kabul edilebilirliği”
“Turkish Code on Mediation” – “Arabuluculuk Hakkında Türk Kanunu”
“Turkish Supreme Court jurisprudence” – “Türk Yargıtayı içtihatları”
“Mediation is a pre-condition” – “Arabuluculuk bir ön koşul ise”
“Med-arb agreements become a tool” – “Arabuluculuk-tahkim anlaşmaları bir araç haline gelir”
“Mediator to act as arbitrator” – “Arabulucunun hakem olarak davranması”
“Serious risks and concerns” – “Ciddi riskler ve endişeler”
“Protect his or her impartiality” – “Tarafsızlığını koruma”
“Rely on confidential information” – “Gizli bilgilere dayanma”
“Enforcement may be refused” – “Yürütme reddedilebilir.”

Please note that legal terminology may vary, and the provided translations are based on the context provided in the text.

TEST

Each question is followed by four answer options, with the correct answer indicated in brackets.

Question 1: What do “Multi-tier dispute resolution clauses” refer to in the legal context?

A) Provisions for international treaties
B) Multi-level court systems
C) Clauses outlining different methods of dispute resolution
D) Contractual obligations of parties

Question 2: In the text, what is the Turkish equivalent of “Admissibility of evidence”?

A) Delilin kabul edilemezliği
B) Delilin adli kabulü
C) Delilin kabul edilebilirliği
D) Delilin ret edilmesi

Question 3: What is the primary purpose of “Med-arb agreements” discussed in the text?

A) To encourage parties to avoid arbitration
B) To establish a mediator’s qualifications
C) To outline the rules of mediation
D) To allow parties to proceed to arbitration after mediation fails

Question 4: Which term refers to “Çok seviyeli anlaşmazlık çözümü maddeleri” in Turkish?

A) Multi-level dispute resolution clauses
B) Arbitration proceedings
C) International treaties
D) Jurisdictional issues

Question 5: What does “Turkish Supreme Court jurisprudence” mentioned in the text refer to?

A) Recent legal reforms in Turkey
B) Turkish Parliament’s legislative work
C) Decisions and rulings of the highest Turkish court
D) International treaties involving Turkey

Question 6: What is the equivalent Turkish term for “Conflict of interest guidelines”?

A) Çıkar çatışması talimatları
B) Etik kurallar
C) Delilin kabul edilebilirliği
D) Çıkar çatışması kuralları

Question 7: According to Turkish law, when is “Mediation is a pre-condition” to arbitration?

A) Always
B) Never
C) Only in international disputes
D) When specified in the med-arb agreement

Question 8: What potential issue may arise if a mediator later acts as an arbitrator in the same dispute?

A) Increased mediation costs
B) Difficulty in finding a qualified mediator
C) Concerns related to impartiality and use of confidential information
D) Delay in initiating arbitration

Question 9: Which phrase refers to “Türk Yargıtayı içtihatları” in Turkish?

A) Turkish Ethics Rules for Mediators
B) Turkish Code on Mediation
C) Turkish Supreme Court jurisprudence
D) Istanbul Arbitration Center Rules

Question 10: In the context of “Med-arb agreements,” what does “Arabulucunun hakem olarak davranması” mean in Turkish?

A) The mediator’s role in initiating mediation
B) The mediator acting as an arbitrator
C) The arbitrator’s authority in med-arb proceedings
D) The mediator’s responsibilities in documenting evidence

Question 11: What do “Serious risks and concerns” in the text primarily refer to?

A) The challenges of international arbitration
B) The advantages of med-arb agreements
C) Potential issues related to mediator-arbitrators
D) Ethical considerations in arbitration

Question 12: Which term signifies “Arabuluculuk bir ön koşul ise” in Turkish?

A) A mandatory step in the arbitration process
B) A condition precedent to arbitration
C) A prerequisite for becoming a mediator
D) A procedural requirement for international arbitration

Question 13: What are “ISTAC Med-arb Rules” as mentioned in the text?

A) International standards for mediation
B) Institutional rules governing arbitration in Istanbul
C) Ethical guidelines for arbitrators
D) Rules for med-arb proceedings introduced by the Istanbul Arbitration Center

Question 14: In the legal context, what is the significance of “Delillerin kabul edilebilirliği”?

A) The process of presenting evidence in court
B) The admissibility of evidence in a legal proceeding
C) The role of mediators in collecting evidence
D) The types of evidence typically used in arbitration

Question 15: What is the primary objective of “Çok seviyeli anlaşmazlık çözümü maddeleri”?

A) To prolong arbitration proceedings
B) To simplify contractual obligations
C) To encourage parties to attempt mediation before arbitration
D) To establish jurisdiction in international disputes