Consent to Arbitration; Interpretation It in Light of an Actual Judicial Decision

Abstract

Leaving compulsory arbitration aside, the essence of arbitration as a means of resolving a dispute involves the consent of both parties. Consequently, in order to be able to talk about a valid arbitration agreement, having reciprocal and informed consent of the parties for resolving a dispute by means of arbitration appears to be a necessary element. One important issue faced in contemporary arbitration, which is widely used as a means of dispute resolution, is that arbitral decisions can be annulled in light of jurisprudence and doctrinal opinions after a lengthy judicial process. Another issue that is relied upon as a reason for invaliding the consent to apply to arbitration arises out of asymmetrical arbitral clauses. When examining the judicial decisions on this subject, clauses in the arbitration agreements between the parties, especially cases where courts and arbitration are jointly authorized to resolve a dispute, as well as in asymmetric arbitration, are observed to be considered invalid. In order to reach this conclusion in the relevant jurisprudence, the justification is based on the argument that the consent of the parties is neither clear nor precise in both aforementioned cases. The result of this inference is either the annulment of the arbitral award or the rejection of the first objection to arbitration when the issue is initially brought before a judicial organ. Turkish legal doctrine can be observed to be divided between two approaches. While the first group, which constitutes the majority opinion, concurs that the agreements regulating the parallel competence of courts and arbitration are invalid in terms of arbitration, the second group of authors accepts that these arbitration agreements are to be considered valid. This paper will firstly examine the judgements of the Court of Cassation and the doctrinal opinions concerning the parties’ consent to submit to arbitration and asymmetrical arbitral clauses. Subsequently and in light of the examined jurisprudence and doctrinal opinions, the paper will attempt to respond to the appropriateness of the Reginol Court of Appeal judgement, which constitutes the subject matter of this work, and question it’s conformity to the contemporary world.

Keywords

• arbitration
• asymmetrical arbitration
• parallel jurisdiction agreements
• consent to arbitration
• interpretation of will