Recourse Against the Award - Chapter 19 - Arbitration Law of Turkey: Practice and Procedure

Dr. Ziya Akinci, is the founding partner of AKINCI Law Oices, Turkey. He sits as an arbitrator in disputes under the ICC and other institute rules, including ITO and TRAC and also under ad hoc rules. Dr. Akinci acts as party counsel in arbitrations, both domestic and international, and under ICC, ICSID and ad hoc rules. He has previously been requested to provide expert opinions in some arbitration cases. Dr. Akinci is member of the ICC Court.

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Originally from Arbitration Law of Turkey: Practice and Procedure

CHAPTER 19

RECOURSE AGAINST THE AWARD

Under TIAC, the only option of recourse against an international arbitral award is to apply to the Courts to have the award set aside. It should be noted that "recourse" means actively "attacking" the award; a party is, of course, not precluded from seeking court control by way of defence in enforcement proceedings. Furthermore, "recourse" means resort to a court, i.e. an organ of the judicial system of a state; a party is not precluded from resorting to an arbitral tribunal of second instance if such a possibility has been agreed upon by the parties (as is common in certain commodity trades). However, one should note that in Turkey there is no arbitration institute providing second instance arbitral tribunal.

Recourse against domestic arbitration is different and wider as it is governed by the TCCP1. The Turkish Supreme Court has confirmed that the rules concerning recourse against domestic arbitration do not apply to international arbitration awards2.

Table of Contents:

19 RECOURSE AGAINST THE AWARD

19.1 THE COMPETENT COURT FOR SETTİNG ASİDE AN AWARD

19.2 TIME LIMIT FOR RECOURSE AGAINST THE AWARD

19.3 CONSEQUENCES OF THE APPLİCATİON FOR SETTİNG ASİDE

19.4 WAİVER OF SETTİNG ASİDE

19.5 THE GROUNDS FOR SETTİNG ASİDE

19.5.1 Grounds to be considered by the Court Ex Officio

19.5.1.1 Non Arbitrability

19.5.1.2 Violation of Public Policy

19.5.2 Grounds to be Proven by the Party Seeking the Setting Aside of an Award

19.5.2.1 Invalidity of the Arbitration Agreement or Incapacity of the Parties

19.5.2.2 The Arbitration Clause as a Separate Entity to the Contract

19.5.2.3 Irregularity in the Composition of the Arbitral Tribunal

19.5.2.4 Not Making the Award within the Time Limit for Arbitration

19.5.2.5 Wrong Ruling on Jurisdiction

19.5.2.6 Exceeding Authority

19.5.2.7 Violation of the Arbitration Procedure

19.5.2.8 Violation of the Equal Treatment Principal

19.6 PARTİAL SETTİNG ASİDE

19.7 BURDEN OF PROOF AND PROCEEDİNG

19.8 THE CONSEQUENCES OF AN AWARD BEİNG SETTİNG ASİDE