Tentative Steps Toward Being Pro-Arbitration: A Turkish Perspective - Chapter 106 - Pro-Arbitration Revisited: A Tribute to Professor George Bermann from his Students Over the Years
Originally from Pro-Arbitration Revisited: A Tribute to Professor George Bermann from his Students Over the Years
The first rule of pro-arbitration club is: you talk about pro-arbitration club; the second rule of pro-arbitration club is: you remember that there are too many rules to fit into a five-page essay. Arbitration may be more popular in some jurisdictions than others. Still, starting the conversation about the merits of arbitration is a necessary first step on the road to becoming a full-fledged member of the pro-arbitration club. Legal practitioners must know about what arbitration means, and what it achieves, before they can thoroughly adopt it. With its new laws, arbitration centers and a young, vibrant, and enthusiastic community of arbitration practitioners, Turkey has well demonstrated its compliance with the first rule. However, being a member of this selective club is not easy. To join the club of nations that enable arbitration to remain accessible, effective and enforceable, Turkey must resist remnants of its archaic laws and closed-minded interpretation of the new laws by its courts.
The rules are plenty. Laws must recognize the binding character and enforceability of awards in arbitrations seated at home or abroad. The jurisdiction must be home to arbitration centers that provide assistance with appointing authorities, secretarial services and hearing facilities. Legal practitioners must be willing to incorporate arbitration clauses into their contracts; and they must be able to act competently as counsel and arbitrator. Yet, perhaps the most important rule of all relates to how courts interact with arbitration. Courts must enforce awards that should be enforced; set aside awards that should be set aside; preclude a party from starting court proceedings in breach of an arbitration agreement; and help ongoing arbitration proceedings without being too intrusive.
This essay will examine whether, and to what extent, arbitration as envisaged and practiced in Turkey complies with requirements of the pro-arbitration club. It will then present recommendations for steps that need to be taken.