Kargo Gönderim Saatleri;
Yeni Üyelik
Üye Girişi
Internatıonal Arbıtratıon
Internatıonal Arbıtratıon
Kemal DAYINLARLI
Sayfa Sayısı
:
345
Kitap Ölçüleri
:
16x23 cm
Basım Yılı
:
2010
ISBN NO
:
9789757680543
200,00
TL PREFACE
The present commentary aims at helping and encouraging students of law at the university and the practitioners fascinated by the field of international arbitration law, which is an important vehicle for the resolution of existing or potential disputes between contracting parties. Indeed, in recent years, because of the globalization of commerce ali över the world, important direct investment has been observed cross-borders. We may easily çite some concrete reasons that support these commercial activities. First of ali, as we witnessing in the countries of the European Union manpower services, that goods and capital are freely crossing över national borders. Consequently, this type of evolution creates a substantial sector in the international market for investment, transfer of technology and the capital from one country to another. Domestic and foreign companies are constantly seeking to conclude consortium and/or joint venture contracts vvhereby they unify their capital, manpower and commercial capabilities. in that context, they include an arbitration clause in their commercial contract, or they set up separately their arbitration agreement for settlement of disputes. in this respect, usually, they subject the resolution of disputes to ICC Rules or UNCITRAL Rules or another institution′s arbitration rules. We may also mention that they also refer to Turkish International Arbitration Law as well. As a consequence of these developments, really, the Turkish International Arbitration Law has a special place for the settlement of disputes regarding international trade contracts. For the first time in Turkey, as soon as the International Arbitration Law entered into effect, it has called the attention of foreign firms as much as the local ones, in particular because this Law has produced a new horizon for the resolution of the disputes confronted in the commercial life. The parties, who have applied in the past to foreign arbitration institutions in the resolution of their disputes, but from now on they have begun to resort to the rules of this new Turkish International Arbitration Law. This is a welcome improvement in the practice of Turkish law. This short commentary deals only with the procedural legal aspects of foreign commercial contract disputes. As a result, nowadays the number and size of the commercial disputes subjected, by the parties, to arbitration have risen signifıcantly because of the increased use of arbitration under bilateral commercial treaties and under consortium and joint venture contracts with public bodies, authorities and individuals as well. The main idea of this work is to offer to students and practitioners for their use the following subject-matters: Parti English version of Turkish International Arbitration Law numbered 4686, dated July 5, 2001, International Arbitration Fee Tariff Regulation relative thereto, The Fee Tariff for International Arbitration thereof. Part II - UNCITRAL Conciliation Rules (1980), - UNCITRAL Arbitration Rules (1976), UNCITRAL Model Law (1985) with amendments as adopted in 2006, UNCITRAL Model Law on International Commercial Conciliation (2002). Part III ICC Arbitration Rules. Part IV Convention on the Recognition and Enforcement of Foreign Arbitral Awards concluded at New York on June 10, 1958, Turkish Code concerning Private International Law and Civil Procedure numbered 5718 dated November 27, 2007 (Chapter II concerning Enforcement and Recognition of the Foreign Court Judgments and Foreign Arbitral Awards) Taking this opportunity, I am grateful to my assistants Attorney-at-Law Miss Begüm CAN and Attorney-at-Law Miss Nurcan BÖGE for the serious and self-sacrificing contributions they made in typing and controlling this work. I would like to sincerely thank to the owner of Sözkesen Printer, Mr. Adil SÖZKESEN and to ali personnel for this valuable presswork. January 10, 2010 Kavaklıdere - Ankara TURKEY Prof. Dr. Kemal DAYINLARLI Professor at the Faculty of Law Atılım University Attorney-at-Law Ankara Bar Association TABLE OF CONTENTS Preface V TableofContents IX Abbreviations XXIII Bibliography XXV CHAPTERI TURKISHINTERNATIONAL ARBITRATION LAW §1. TEXT OF TURKISH INTERNATIONAL ARBITRATION LAW Article Page SECTION I General Provisions 1 Purpose and scope 1 2 Foreign element 2 3 Competent Court of jurisdiction as to subject-matter and venue in arbitration and limit of intervention 3 SECTION II Arbitration Agreement 4 Defınition and form 4 5 Objection as to arbitration and arbitration agreement beforethe Court 5 6 Conservatory measure or conservatory sequestration 5 SECTION III Appointment, Challenge, Responsibility, Termination of Mandate and Competency of Arbitrator or Arbitral Tribunal 7 Number, appointment, challenge, responsibility, termination of mandate and competency of arbitrators 7 SECTION IV Arbitral Proceeding 8 Determination of rules of proceeding, equality and representation of parties 12 9 Seat of arbitration 13 10 Date of filing action, term of arbitration, language used, request for arbitration and answer, terms of reference 13 11 Hearing and written proceedings, losing ability of being a party, default of a party at the proceedings 16 12 Appointment of expert-witness by arbitrator or Arbitral Tribunal, gathering evidences, law applicable to the substance of dispute and reconciliation 18 13 Procedure of the Arbitral Tribunal in making decision and termination of arbitral proceedings 19 14 Form and content, correction, interpretation and completion of arbitral award, receipt of written notices 21 SECTION V Recourse Against Arbitral Avvards 15 Action for setting aside and making the arbitral award possible to be enforceable 23 SECTION VI Costs of Arbitration 16 Fees of arbitrators, costs of proceedings, deposit of advance, payment of costs 26 SECTION VII Final Provisions 17 Provisions not to be applicable and abolished 29 Transitory Provision 1 18 Entry into force 30 19 Execution 30 §2. THE INTERNATIONAL ARBITRATION FEE TARIFF REGULATION 1 Purpose and Scope 31 2 Foundation 31 3 Entitlement to the Arbitration Fee 32 4 Determination of the Arbitrators′ Fee 32 5 The Fee Tariff 32 6 Entry into Force 32 7 Execution 33 §3. THE ORDER CONCERNING THE FEE TARIFF FOR INTERNATIONAL ARBITRATION 1 Subject-matter and scope 34 2 Services incorporated into the scope of arbitration fees 35 3 The fee of the chairman 35 4 Partial entitlement of the fee and the cases where no remuneration shall be ruled 35 5 The fee in cases of the action′s being remained without subject-matter, the renunciation and settlement in peace ... 36 6 The fee for the partial award 36 7 Rehearing the case by previous arbitrator as a consequence of setting aside 37 8 The time of entitlement of the fee 37 9 Sharing of the fee 37 10 The fee order 37 11 Thefeetable 37 12 Entry into force 38 CHAPTERII SHORT EXPLANATIONS ABOUT THE HISTORY OF UNCITRAL RULES §1. COMMENCEMENT OF UNCITRAL RULES 39 §2. WIDEN THE IMPLEMENTATION OF UNCITRAL RULES 40 I. Countries Accepting the UNCITRAL Rules 40 II. Preparatory Works for the Acceptance in Turkey 41 III. Principal Qualifıcations of UNCITRAL Arbitration Rules 43 CHAPTER III APPLICATION OF CONCILIATION RULES RELATING TO INTERNATIONAL COMMERCIAL DISPUTES §1. SCOPE AND AIM 45 §2. SOME SPECIAL FEATURES OF CONCILIATION 47 I. Scope of Application 47 II. Source of UNCITRAL Conciliation Rules 48 CHAPTERIV EXPLANATION CONCERNING UNCITRAL ARBITRATION RULES §1. İN GENERAL 51 §2. IMPORTANT ISSUES TO BE CONSIDERED WHEN THE DISPUTE IS BEFORE THE ARBİTRAL TRİBUNAL 53 I. Place of Arbitration 53 1) Determination of the place of arbitration if not agreed by the parties 53 2) The possibility of realizing a meeting at another place than the place of arbitration 55 II. Language of Arbitration 55 III. The Confidentiality of Information related to Arbitration 56 IV. Assignment of the Conflict Points and Order of Conflicts 57 1) Examination order of the list conceraing the conflicted points 57 2) Order of examination of issues in dispute 58 V. Administrative Services of the Arbitral Tribunal 59 1) Written communication betvveen parties and arbitrators 60 2) Transmission of the documents by electronic means 61 a) Telefax 61 b) E-mail 61 VI. Evidences Depending on Documents 62 1) Submitting the documents to the Arbitral Tribunal.. 62 2) Requirement of document from the parties by the Arbitral Tribunal 62 3) Admissibility of hard copies or photocopies of documents 62 VII.HearingofWitnesses 63 1) Giving information in advance about the witnesses 63 2) Hearing of witnesses before the Arbitral Tribunal 63 3) Hearing of witnesses by taking oath 64 4) Hearing of the witnesses one by one 64 VIII. Experts and Expert Witnesses 65 1) Experts appointed by the Arbitral Tribunal 65 2) Expert′s terms of reference 66 IX. Holding a Hearing 66 1) Decisionto hold a hearing 66 2) Establishment of the hearing minutes 67 X. Prepayment of the Arbitration Expenses 67 1) Fixation of arbitration expenses 67 2) Requirement of an additional prepayment 68 3) Keeping account of the pre-payments 68 §3. CHAPTERS OF UNCITRAL ARBİTRATİON RULES.. 68 I. Introductory Rules 68 II. Composition of the Arbitral Tribunal 70 1) Appointment of the arbitrator 70 2) Challenge of the arbitrator 73 III. Arbitral Proceedings 75 IV. Pre-Hearing Meetings 80 V. Arbitral Award 81 1) Various awards rendered by the Arbitral Tribunal 81 2) Dissenting opinion against the award rendered by the majority of the votes 84 3) Confidentiality of the arbitral award 85 4) Deterraination of applicable law 86 5) Closing of proceedings 88 6) Interpretation of the award, correction and to make an additional award 89 7) Recourse against arbitral award 89 8) Costsofarbitration 92 9) Expenses of the appointing office 93 CHAPTER V EXPLANATIONS ABOUT UNCITRAL MODEL LAW §1. İN GENERAL 95 §2. NEED OF A MODEL LAW 96 §3. CHAPTERS OF UNCITRAL MODEL LAW 97 I. General Provisions (Art. 1-6) 97 II. Arbitration Agreement (Art.7-9) 99 III. Composition of Arbitral Tribunal (Art. 10-15) 100 1) Grounds for challenge of the arbitrators 101 2) Appointment of a substitute arbitrator to the place of the revoked arbitrator 102 IV. Competence of the Arbitral Tribunal (Art. 16-17) 103 V. Conduct of Arbitral Proceedings (Art. 18-27) 104 1) Principle of equal treatment of parties 104 2) Determination of rules of procedure 104 3) Place of arbitration 105 4) Commencement of arbitral proceedings 105 5) Language of the arbitral proceeding 107 6) Statements of claim and defence 108 7) Power of the Arbitral Tribunal to render interim measures 110 8) Experts 110 9) Court assistance in taking evidence 110 VI. Making of Awards and Closing of Proceedings (Art. 28-33) 111 1) Decision making by the majority of the Arbitral Tribunal 112 2) Conciliation of the parties 113 3) Form and contents of the arbitral award 114 4) Termination of arbitral proceedings of the arbitration case 115 5) Correction, interpretation of award and additional award 116 VII. Recourse against the Arbitral Award (Art. 34) 117 1) Application for setting aside 117 2) Procedure for setting aside the award 119 VIII. Recognition and Enforcement of Awards (Art. 35-36) 120 1) Grounds for refusing recognition and enforcement 120 2) Refusing the enforcement does not set aside the award 121 CHAPTER VI EXPLANATION ABOUT UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL CONCILIATION (2002) ART. 1. SCOPE OF APPLICATION AND I. II. III. DEFINITIONS 123 Commercial Conciliation 124 Conciliation Place 124 Conciliation Intention of Parties 124 IV. Widen Meaning of Conciliation 125 V. International Conciliation 125 VI. Applicability of Domestic Conciliation 125 ART. 2. İNTERPRETATİON 126 ART. 3. VARIATION BY AGREEMENT 127 ART. 4. COMMENCEMENT OF CONCILIATION PROCEEDING 127 I. Period of Time for Accepting the Invitation toConciliate 128 II. Renunciation of Conciliation Proposal 129 III. Rule Providing to Suspend the Period of Prescription 129 ART. 5. NUMBER AND APPOINTMENT OF CONCILIATORS 130 I. Agreement of the Parties on the Choice of One Conciliator 130 ART.6. CONDUCT OF CONCILIATION 131 ART.7. COMMUNICATION BETWEEN CONCILIATOR AND PARTİES 132 I. Liberty of Communication 132 ART. 8. DISCLOSURE OF INFORMATION 132 I. Need for Clear Communication between Conciliator and Parties 132 II. Disclosure of Information 132 III. Conception of Information 133 ART. 9. CONFIDENTIALITY 133 I. General Rule about Confıdentiality 133 II. Exceptions of the Rule 134 ART.10. ADMISSIBILITY OF EVIDENCE İN OTHER PROCEEDINGS 134 I. Connection with UNCITRAL Conciliation Rules 135 II. The Provision of Article 10 135 III. Form of Information and Evidence 136 IV. Prohibition to Disclose Evidence or Information about Conciliation 136 V. Circumstances vvhere under Law Disclosure of Information is Mandatory or Permitted 137 VI. Relation between the Conciliation Proceeding and the Next Proceeding 138 ART. 11. TERMINATION OF CONCİLİATİON PROCEEDİNG 138 I. Conditions for Termination of Conciliation Proceeding 138 ART.12. CONCILIATOR ACTING AS AN ARBITRATOR 140 I. Extra Rule Depending on Parties Willing 140 II. Scope of Application of Article 12 140 ART. 13. RESORT TO ARBITRAL OR JUDICIAL PROCEEDINGS 141 I. Restricting Freedom of Application to Arbitration ortotheCourt 141 II. Exception of the Circumstance of Applying to Such a Proceeding for Protection of the Rights of the Parties 141 ART.14. ENFORCEABILITY OF SETTLEMENT AGREEMENT 142 I. Grounds for Expedited Enforcement 142 II. Examples for Additional Properties of Settlement Agreement in Some Legal Systems 142 CHAPTER VII INTERNATIONAL CHAMBER OF COMMERCE (ICC) RULES OF ARBITRATION §1. TEXT OF ICC RULES OF ARBITRATION Article Page INTRODUCTORY PROVISIONS 1 International Court of Arbitration 145 2 Defınitions 146 3 Written Notifications or Communications; Time Limits 147 COMMENCING THE ARBITRATION 4 Request for Arbitration 148 5 Answer to the Request; Counterclaims 150 6 Effect of the Arbitration Agreement 151 THE ARBITRAL TRIBUNAL 7 General Provisions 152 8 Number of Arbitrators 153 9 Appointment and Confîrmation of the Arbitrators 154 10 Multiple Parties 156 11 Challenge of Arbitrators 157 12 Replacement of Arbitrators 157 THE ARBITRAL PROCEEDINGS 13 Ttansmission of the File to the Arbitral Tribunal 158 14 Place of the Arbitration 159 15 Rules Governing the Proceedings 159 16 Language of the Arbitration 159 17 Applicable Rules of Law 160 18 Terms of Reference; Procedural Timetable 160 19 NevvClaims 162 20 Establishing the Facts of the Case 162 21 Hearings 153 22 Closing of the Proceedings 163 23 Conservatory and Interim Measures 164 AWARDS 24 Time Limit for the Award 165 25 Makingofthe Award 165 26 Award by Consent 166 27 Scrutiny ofthe Awardby the Court 166 28 Notifıcation, Deposit and Enforceability of the Award 155 29 Correction and Interpretation of the Award 167 COSTS 30 Advance to Cover the Costs ofthe Arbitration 168 31 Decision as to the Costs ofthe Arbitration 169 MISCELLANEOUS 32 Modifıed Time Limits 170 33 Waiver JQ 34 Exclusion of Liability 171 35 General Rule -] §2. STATUTES OF THE INTERNATIONAL COURT OF ARBİTRATİON (APPENDDt I) Article Page 1 Function 172 2 Composition of the Court 172 3 Appointment 172 4 Plenary Session of the Court 173 5 Comrmttees 173 6 Confidentiality 174 7 Modifıcation of the Rules of Arbitration 174 §3. INTERNAL RULES OF THE INTERNATIONAL COURT OF ARBİTRATİON (APPENDIX II) 1 Confıdential Character of the Work of the International Court of Arbitration 175 2 Participation of Members of the International Court of Arbitration in ICC Arbitration 176 3 Relations between the Members of the Court and the ICC National Committees 177 4 Committee of the Court 177 5 Court Secretariat 178 6 Scrutiny of Arbitral Awards 179 §4. ARBİTRATİON COSTS AND FEES (APPENDLY III) 1 Advance on Costs 180 2 Costs and Fees 182 3 ICC as Appointing Authority 184 4 Scales of Administrative Expenses and Arbitrator′s Fees 184 ANNEXI- TEXTOF UNCITRAL CONCILIATIONRULES (As adopted by the United Nations Commission on International Trade Law on 4 December 1980) ANNEX II - TEXT OF UNCITRAL ARBITRA TION R ULES (As adopted by the United Nations Commission on International Trade Law on 15 December 1976) 201 ANNEX III - TEXT OF UNCITRAL MODEL LA W ON INTERNATIONAL COMMERCIAL ARBITRATION (As adopted by the United Nations Commission on International Trade Law on 21 June 1985, and as amended by the United Nations Commission on International Trade Law on 7 July 2006) 227 ANNEXIV - TEXT OF UNCITRAL MODEL LA W ON INTERNATIONAL COMMERCIAL CONCILIATION (As adopted by the United Nations Commission on International Trade Law on 19 November 2002) 263 ANNEX V - TEXT OF THE CONVENTION OF THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL A WARDS CONCLUDED AT NEW YORK ON JUNE 10, 1958 277 ANNEX VI - ENGLISH VERSION OF THE LA WFOR APPROVAL OF THE NEW YORK CONVENTION ON THE RECOGNITION AND THE EXECUTION OF FOREIGN ARBITRAL A JVARDS NUMBERED 3731 AND DATED MAY8, 1991 ANNEX VII - ENGLISH VERSION OF THE SECOND CHAPTER OF TURKISH CODE CONCERNING PRIVATEINTERNATIONAL LAWAND CIVIL PROCEDURERELATED TO THE ENFORCEMENT AND RECOGNITION OF THE FOREIGN COURT JUDGMENTS AND ARBITRAL A JVARDS (ART. 50-63) .. 307 ANNEX VIII - LIST OF PUBLISHED WORKS, ARTICLES AND TRANSLATIONS OF PROF. DR. KEMAL DAYINLARLI
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