Arbitration of Intra-Corporate Disputes in Turkish Law
Summary
Excerpt
Table Of Contents
- Cover
- Title
- Copyright
- About the author
- About the book
- This eBook can be cited
- Acknowledgements
- Contents
- Introduction
- Part I. Arbitrability in Turkish Law
- I. Introduction to Part I: Fundamental Principles and Literature Review
- A. General Principles of Turkish Law: ‘Party Autonomy’
- B. The Concept of Arbitrability
- C. Arbitrability and Sources of Turkish Law
- II. Objective Arbitrability under Turkish International Arbitration Law
- A. The Impact of Imperative Rules on Arbitrability
- 1. The General Statutory Formula for Arbitrability of a Dispute
- a) Standards and Approaches for Establishing Whether a Dispute is Subject to the Will of the Parties
- 2. The Specific Case of Inarbitrability: Immovable Property
- 3. Other Disputes that are Inarbitrable based on the General Formula
- B. Exclusive Judicial Jurisdictional Rules and Their Impact on the Arbitrability of a Dispute
- 1. The Discussion on Inarbitrability Due to Explicit Regulations Requiring ‘Exclusive Judicial Jurisdiction’
- a) The Fact that the Criteria of Arbitrability shall be Determinative
- 2. Legal Consequences of a ‘Court Order’ Requirement in a Statute
- C. The Issue of Public Policy and Relationship with Arbitrability in Turkish Law
- 1. Regulations under Turkish Law
- a) Definition and Specifications of Public Policy in Turkish Law
- b) Characteristics and the Legal Nature of Public Policy
- 2. Application of Public Policy in Turkish Law: Domestic and International Law Contrasted
- a) Domestic Public Policy under Turkish Law (Ordre Public National)303
- (1) Issues Considered as Non-arbitrable Due to Public Policy
- b) International Public Policy under Turkish Law (Ordre Public International)
- 3. Final Review and Evaluation of Public Policy Notion in Turkish Law
- Part II Arbitrability of Intra-Corporate Disputes in Turkish Law
- III. Objective Arbitrability of Intra-Corporate Disputes and Statutory Regulations
- A. Application of Arbitration to Corporate Law Disputes
- B. A Review of the Statutory Regulations for Arbitrating Intra-Corporate Disputes in Turkey
- 1. An Overview of Current Regulations
- C. Framework and Methodology of Corporate Disputes
- IV. Example of Disputes Arising from Internal Corporate Affairs: Annulment of General Assembly Resolutions
- A. Judicial Perspective: Examination of Case Law
- B. Statutory Perspective: Specific Regulations of Turkish Commercial Code
- C. Doctrinal Perspective: Assessments of Legal Commentators
- 1. Doctrinal Arguments on the Inarbitrability of Disputes Arising from General Assembly Resolutions
- 2. Arguments on the Arbitrability of the Issue: A Synopsis
- V. Counter Arguments
- A. Compatibility with the Criteria of the Will of the Parties
- 1. Essence of the Criteria: Dispositive Nature
- 2. Assessment of Settlement
- B. Judicial Jurisdiction: Potential Exclusivity of the Rule and Involvement of Public Policy
- 1. Jurisdictional Rules and the Extent of Their Effect in Turkish Law
- 2. Exclusive Judicial Rules and Arbitrability
- 3. Other Counter-Arguments against Inarbitrability based on Judicial Jurisdictional Rules
- C. Impact of the Decision on Shareholders not a Party to the Action, and Third Parties
- 1. Third Parties Who are Intra-Corporate Actors
- 2. Third Parties Other Than Intra-Corporate Actors
- D. Vested Right Character and Its Consequences
- E. Imperative Provisions Principle in Turkish Commercial Code and Its Effect on Arbitration
- 1. The Explicit Recognition Limitation of Article 340
- 2. Limitation of Article 340 on Subsidiary Provisions
- F. Multiparty Issues and Procedural Regulations for Law favoring Court Adjudication: Suggestions for Arbitral Proceedings
- 1. Possible Issues in Multiparty Arbitration
- 2. Definition and Content of Multiparty Disputes and Related Concepts
- 3. Examination of Related Concepts and Their Applicability
- a) Joinder of Parties
- (1) Optional Joinder of Parties
- (2) Mandatory Joinder of Parties
- b) Intervention
- (1) Primary Intervention
- (2) Secondary Intervention
- (3) Notice of the Proceeding
- c) Consolidation of Cases
- (1) Connection between the Cases
- (2) Consent of the Parties
- d) Proposals for the Resolution of Multiparty Disputes through Arbitration in Turkish Law
- (1) General Explanations of Multiparty Arbitration Proceedings
- (2) Explanations of Intra-Corporate Dispute Settlement in Specific and Conclusion
- G. Conclusion
- VI. Bibliography
- VII. Appendices
Bibliographic Information published by the
Deutsche Nationalbibliothek
The Deutsche Nationalbibliothek lists this publication in the Deutsche
Nationalbibliografie; detailed bibliographic data is available online at
http://dnb.d-nb.de.
Library of Congress Cataloging-in-Publication Data
A CIP catalog record for this book has been applied for at the
Library of Congress.
This book is a revised version of the doctoral dissertation of
Aysel Cetinkaya Uyar submitted in partial fulfillment of the requirements
for Penn State Law’s Doctor of Juridical Science (S.J.D.) program in 2017.
ISBN 978-3-631-77572-1 (Print)
E-ISBN 978-3-631-78534-8 (E-PDF)
E-ISBN 978-3-631-81508-3 (EPUB)
E-ISBN 978-3-631-81509-0 (MOBI)
DOI 10.3726/b16656
© Peter Lang GmbH
Internationaler Verlag der Wissenschaften
Berlin 2020
All rights reserved.
Peter Lang – Berlin ∙ Bern ∙ Bruxelles ∙ New York ∙ Oxford ∙ Warszawa ∙ Wien
All parts of this publication are protected by copyright. Any
utilisation outside the strict limits of the copyright law, without
the permission of the publisher, is forbidden and liable to
prosecution. This applies in particular to reproductions,
translations, microfilming, and storage and processing in
electronic retrieval systems.
This publication has been peer reviewed.
About the author
Aysel Cetinkaya Uyar is an assistant professor in the department of commercial law. She has completed LLM and Doctor of Juridical Science (S.J.D.) degrees at Penn State Law and has LLB degree from Ankara University, Faculty of Law. She is an attorney-at-law registered to Ankara Bar.
About the book
Arbitration of disputes arising from internal corporate affairs is an issue that has received an increasing significant attention in comparative law. The current lack of foreign language sources addressing Turkish arbitral practice led this dissertation to focus on the Turkish legal system. The arbitrability of corporate disputes remains a vague issue in Turkish law. Until a consensus exists between the legislative, doctrinal, and adjudicatory dimensions of the law, arbitrating those disputes may have risky sides. The book serves as a guide for corporate practitioners. It includes a detailed analysis of possible risks and pitfalls for parties submitting their disputes to arbitration. This risk analysis precedes a set of proposals to alleviate these inconveniences and grounds to support arbitrability claims. Aysel
This eBook can be cited
This edition of the eBook can be cited. To enable this we have marked the start and end of a page. In cases where a word straddles a page break, the marker is placed inside the word at exactly the same position as in the physical book. This means that occasionally a word might be bifurcated by this marker.
Acknowledgements
First and foremost, I am deeply indebted to my supervisor Professor Thomas Carbonneau for his enormous guidance, inspiration, and encouraging comments. I would not have completed this book without his attentive supervision and contributions. It has been an honor for me to have such an experienced and internationally renowned authority on arbitration as my advisor.
I am further grateful to Professors Samuel Bufford and Julie Metzger, and to my dear friend Tatiana Chiribau for being my second family in the US. Living with them, I was too busy making unforgettable memories to ever feel lonely or homesick.
My deepest appreciation goes to my family for their unwavering support and encouragement. The continuous and unparalleled love of my mother Berrin Cetinkaya and my brother Fırat Cetinkaya have enabled me to overcome all manner of challenges. Although we have been separated by thousands of miles, they have been with me every step of the way.
Most importantly, I want to express my sincere gratitude to my dear husband Can Yucel Uyar, who has been with me all this time and made these years the best my life. He has supported me through every critical step of this book with great love and patience. I want to thank him for everything.
Contents
Part I. Arbitrability in Turkish Law
I. Introduction to Part I: Fundamental Principles and Literature Review
A. General Principles of Turkish Law: ‘Party Autonomy’
B. The Concept of Arbitrability
C. Arbitrability and Sources of Turkish Law
II. Objective Arbitrability under Turkish International Arbitration Law
A. The Impact of Imperative Rules on Arbitrability
1. The General Statutory Formula for Arbitrability of a Dispute
a) Standards and Approaches for Establishing Whether a Dispute is Subject to the Will of the Parties
2. The Specific Case of Inarbitrability: Immovable Property
3. Other Disputes that are Inarbitrable based on the General Formula
B. Exclusive Judicial Jurisdictional Rules and Their Impact on the Arbitrability of a Dispute
a) The Fact that the Criteria of Arbitrability shall be Determinative
2. Legal Consequences of a ‘Court Order’ Requirement in a Statute
C. The Issue of Public Policy and Relationship with Arbitrability in Turkish Law
1. Regulations under Turkish Law
a) Definition and Specifications of Public Policy in Turkish Law
b) Characteristics and the Legal Nature of Public Policy
2. Application of Public Policy in Turkish Law: Domestic and International Law Contrasted
a) Domestic Public Policy under Turkish Law (Ordre Public National)
(1) Issues Considered as Non-arbitrable Due to Public Policy
b) International Public Policy under Turkish Law (Ordre Public International)
3. Final Review and Evaluation of Public Policy Notion in Turkish Law
Part II Arbitrability of Intra-Corporate Disputes in Turkish Law
III. Objective Arbitrability of Intra-Corporate Disputes and Statutory Regulations
A. Application of Arbitration to Corporate Law Disputes
B. A Review of the Statutory Regulations for Arbitrating Intra-Corporate Disputes in Turkey
1. An Overview of Current Regulations
C. Framework and Methodology of Corporate Disputes
A. Judicial Perspective: Examination of Case Law
B. Statutory Perspective: Specific Regulations of Turkish Commercial Code
C. Doctrinal Perspective: Assessments of Legal Commentators
1. Doctrinal Arguments on the Inarbitrability of Disputes Arising from General Assembly Resolutions
2. Arguments on the Arbitrability of the Issue: A Synopsis
A. Compatibility with the Criteria of the Will of the Parties
1. Essence of the Criteria: Dispositive Nature
B. Judicial Jurisdiction: Potential Exclusivity of the Rule and Involvement of Public Policy
1. Jurisdictional Rules and the Extent of Their Effect in Turkish Law
2. Exclusive Judicial Rules and Arbitrability
3. Other Counter-Arguments against Inarbitrability based on Judicial Jurisdictional Rules
C. Impact of the Decision on Shareholders not a Party to the Action, and Third Parties
Details
- Pages
- 236
- Publication Year
- 2020
- ISBN (PDF)
- 9783631785348
- ISBN (ePUB)
- 9783631815083
- ISBN (MOBI)
- 9783631815090
- ISBN (Softcover)
- 9783631775721
- DOI
- 10.3726/b16656
- Language
- English
- Publication date
- 2020 (April)
- Keywords
- Drafting arbitration agreement Subject-matter inarbitrability Turkish International Arbitration Code Turkish Commercial Code Turkish Supreme Court
- Published
- Berlin, Bern, Bruxelles, New York, Oxford, Warszawa, Wien, 2020. 236 pp.
- Product Safety
- Peter Lang Group AG
