The recognition and enforcement of foreignarbitral awards in Turkey: A critical study of thepublic policy exception'
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- Tez No: 716207
- Danışmanlar: DR. GBENGA ODUNTAN
- Tez Türü: Yüksek Lisans
- Konular: Hukuk, Uluslararası Ticaret, Law, International Trade
- Anahtar Kelimeler: Belirtilmemiş.
- Yıl: 2014
- Dil: İngilizce
- Üniversite: The University of Kent
- Enstitü: Yurtdışı Enstitü
- Ana Bilim Dalı: Belirtilmemiş.
- Bilim Dalı: Belirtilmemiş.
- Sayfa Sayısı: 65
Özet
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Özet (Çeviri)
Today, a considerable number of foreign arbitral awards, which are subjected to recognition and enforcement, arise from international commercial and economic disputes.1 In this respect, the recognition and enforcement of international arbitral awards are, therefore, part of international trade, nowadays. The countries which consider international trade as a tool for development and progress are required to improve the efficiency of international arbitration and maintain the effectivity of foreign arbitral awards in particular.2 This can be achieved through rendering applicable arbitral awards in line with the requirements of international trade. In this connection, the recognition and enforcement of foreign arbitral awards gain peculiar importance. 3 In Turkey, there are two regulations with regard to the recognition and enforcement of foreign arbitral awards, one of those which contained in the provisions of Articles 60-63 of the Turkish Act on Private International and Procedural Law No.5718. The other regulation is the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards dated 10 June 1958, to which Turkey is a signatory. 4 New York Convention Article 5 and Act No.5718 Article 62 governs the conditions how the judge from whom the recognition and enforcement is sought may refuse such recognition and enforcement if the judge finds such conditions. Pursuant to these clauses, the recognition and enforcement may be refused by the judge if the subject matter of the difference is not capable of settlement by arbitration under the law of the country where recognition and enforcement are sought, or the recognition or enforcement of the award would be contrary to the public policy of the country in question. 1 Cemal Ş,“ Türkiye 'de Yargıtay Kararlarına Göre Yabancı Hakem Kararlarının Tanınması ve Tenfizi ( Recognition and Enforcement of Foreign Arbitral Awards in Turkey According to the Judgement of Supreme Court”, ( 1997-1998), MHB 17-18, p.393 2 Ibid, p.394 3 Işılar U.M,“ Yabancı Hakem Kararlarının Tanınması ve Tenfizinde Kamu Düzeninin Etkisi”, (2003), Ankara Üniversitesi Hukuk Fakültesi, p.5 4 Seda E, Gözde E,“Enforcement of Foreign Arbitral Awards in Turkey”, (2009), Legal News Bulletin Turkey, p.32 5 Considering the grounds for refusal here, the most important ground for refusal seems to be the contrariness of the award to the public policy of the country in question as the signatories to an arbitration agreement may not refuse the recognition or enforcement of an award with an internationally accepted regulation and they may reasonably find that they would not be part to such agreement which compels them to have such award recognized and enforced. Yet, this dissertation examines the effect of public policy over the recognition and enforcement of foreign arbitral awards. The Convention allows the parties to plead for refusal of the recognition and enforcement of an award in case that the award is contrary to the public policy of their countries under their respective domestic laws, enabling domestic courts to complement national legal orders. This study on the Recognition and Enforcement of Foreign Arbitral Awards in Turkey and the Public Policy Exceptions will be composed of three sections. Section I, the concept of foreign arbitral awards, the criteria that adds foreign nationality to awards, the scope of the New York Convention and the Turkish International Private Law and Procedural Law and the provisions of those regulations relating to recognition and enforcement will be mentioned. Section II of the dissertation details the term of public policy. The term which cannot be defined precisely and in which conditions cannot be specified completely and its scope will be examined with several definitions from the doctrine. The term's development and outlook will be examined with a particular view to international private law. Its time, place, subject and variable-dependent nature, its varying effects, exceptionality and the wide discretionary power of judge employed in the determination and implementation of the term will be mentioned. Which public policies may be influential in terms of international arbitration will be examined and the concepts relating to public policy will be explained. The principles of arbitral eligibility of subject matters for arbitral proceedings, objectivity and independence of arbitrators, and non-violation of parties' rights of defense will be examined in the light of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and Act on International Private Law and Procedural Law No. 5718. 6 In the last section, public policy's effect on the recognition and enforcement of foreign arbitral awards in accordance with the Turkish Law will be mentioned. This section details the conditions will be deemed contrary to public policy in accordance with the Turkish Law in the stage of the recognition and enforcement of foreign arbitral awards in Turkey and these conditions will be reexamined in the light of several decisions by the Supreme Court of Appeals. Act on Private International and Procedural Law No. 5718 governs the recognition and enforcement of foreign arbitral awards, but do not define the concept of foreign arbitrator.5 Therefore, the foreign nature of arbitral awards shall be identified principally before clarifying the conditions required for the recognition and enforcement of foreign arbitral awards. 6
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