{"id":3595,"date":"2023-05-22T14:12:49","date_gmt":"2023-05-22T11:12:49","guid":{"rendered":"https:\/\/www.ozkokhukuk.com\/?p=3595"},"modified":"2023-05-22T14:12:49","modified_gmt":"2023-05-22T11:12:49","slug":"tahkim-nedir","status":"publish","type":"post","link":"https:\/\/www.ozkokhukuk.com\/en\/tahkim-nedir\/","title":{"rendered":"What is Arbitration?"},"content":{"rendered":"Arbitration is the final and binding resolution of the dispute by the arbitrators by agreeing that the parties in dispute over a right, where permitted by the legislation, leave the resolution of the dispute to private persons called arbitrators instead of the courts. In order for a dispute to be resolved through arbitration, two conditions must be met at the same time.
\nThe dispute being arbitrable
\nIt is the agreement of the parties to resolve the dispute between them through arbitration.
\nIN WHICH MATTERS CAN BE ENTERED IN ARBITRATION?
\nDisputes arising from real rights over immovable properties or works that are not subject to the will of both parties are not arbitrable. Other disputes may be referred to arbitration.
\nWHAT IS THE ARBITRATION AGREEMENT?
\nAn arbitration agreement is a written agreement of the parties to leave the resolution of all or part of the disputes that have arisen or may arise from a contractual or non-contractual legal relationship to the arbitrator or arbitral tribunal.
\nTYPES OF ARBITRATION
\nMandatory Arbitration \u2013 Discretionary Arbitration
\nArbitration is essentially an optional process that operates based on the mutual consent of the parties to the dispute. However, exceptionally, in some laws, it is stipulated that the parties must take the dispute between them to arbitration. Compulsory arbitration is of an exceptional nature and in which cases compulsory arbitration will be resorted to is determined by the provisions of the special law.
\nMandatory Arbitration
\nAlthough arbitration, which is an alternative dispute resolution method, is essentially optional, the legislator has foreseen the use of arbitration for some disputes as a necessity. Since this obligation arises from the law, there is no need for the will of the parties to unite to resort to arbitration. Arbitration arising from law in this way is called compulsory arbitration. Compulsory arbitration is an exceptional way and the circumstances in which it will be applied are regulated by the provisions of the special law.<\/p>\n

Discretionary Arbitration
\nBy mutual agreement, the parties leave the resolution of the dispute between them to private persons called arbitrators and the examination and resolution of the dispute by the arbitrators is called optional arbitration. In such cases, the parties do not have to resort to arbitration for the resolution of the dispute between them. Unlike compulsory arbitration, the issue of resorting to arbitration in this type of arbitration depends on the will of the parties. In voluntary arbitration, the parties can act freely on issues such as the place of arbitration, the language of arbitration, the applicable law, the appointment of the arbitrator or arbitrators, the scope of the disputes to be resolved by the arbitrators. The arbitral award to be made at the end of the discretionary arbitration process is binding on the parties.<\/p>\n

National Arbitration – International Arbitration
\nArbitration is divided into two groups as national arbitration and international arbitration, depending on whether the dispute contains foreign elements or not.
\nNational Arbitration
\nArticle 407 of the Code of Civil Procedure (HMK) No. 6100 determined the application area of national arbitration. According to the provision, the provisions on national arbitration in the HMK are applied for disputes that do not contain foreign elements and where the place of arbitration is determined as Turkey.<\/p>\n

International Arbitration
\nInternational arbitration is an alternative solution method in which disputes with foreign elements are resolved by an arbitrator or arbitral tribunal. International arbitration is a consensual and binding dispute resolution method.<\/p>\n

Ad Hoc Arbitration – Corporate Arbitration
\nInternational arbitration processes are examined in two groups, ad hoc arbitration and institutional arbitration, in terms of the way of organization.
\nAd Hoc Arbitration
\nIn ad hoc arbitration, which is the type of arbitration in which the parties form the arbitral tribunal and determine the arbitration procedure without being subject to any arbitration institution, the arbitrator or the arbitral tribunal is determined temporarily by agreement of the parties and only to resolve the concrete dispute between those parties. In practice, in ad hoc arbitration, it is seen that the parties commonly choose the United Nations Commission on International Commercial Law (UNCITRAL) arbitration rules as the rules to be applied to the arbitration.<\/p>\n

Institutional Arbitration
\nIn institutional arbitration, the institution where the arbitration proceedings will take place has pre-prepared trial rules. In terms of arbitration proceedings, unless otherwise determined by the will of the parties, the rules of the said arbitration institution will find an area of application. The reason why institutional arbitration centers are preferred by the parties is that these centers organize the arbitration proceedings in detail and have the technical and administrative organization to carry out the process.<\/p>\n

Commercial Arbitration-Investment Arbitration
\nCommercial Arbitration
\nArbitration proceedings for the resolution of disputes between merchants (or state\/state organizations acting as merchants) engaged in the trade of goods or services are called “commercial arbitration”. In commercial arbitration cases, it is possible for one of the parties to the case to be the state. States parties to commercial arbitration cases\u00a0In principle, it acts as a private law person, not as a sovereign state with supreme commanding power.<\/p>\n

Investment Arbitration
\nIn investment arbitration, one of the parties to the dispute is the foreign investor, while the other is the host state. In disputes subject to investment arbitration, the state acts as a sovereign state with superior public power.<\/p>\n

INSURANCE ARBITRATION, THE MOST COMMON ARBITRATION IN PRACTICE<\/p>\n

In insurance law, it is aimed to resolve the disputes arising between the people who will benefit from the insurance contract or the account and the account through arbitration. Therefore, the dispute must arise either from the insurance contract or from the account. (\u201cAccount\u201d is an institution established within the Association to cover the losses incurred by the injured person, for example, in the absence of a valid insurance at the time the risk occurred.)
\nIn order to apply for the insurance arbitration system, it is necessary to be a member of the insurance arbitration system first. In the event that the insurance company is not a member of the system, the insurance company that is not a member of the insurance arbitration system and the insurer or the person who benefits from the insurance contract can make a written agreement that the dispute will be resolved through arbitration. In this case, the parties will be able to apply for ad hoc arbitration in accordance with the HMK.","protected":false},"excerpt":{"rendered":"

Arbitration is the final and binding resolution of the dispute by the arbitrators by agreeing that the parties in dispute over a right, where permitted by the legislation, leave the resolution of the dispute to private persons called arbitrators instead of the courts. In order for a dispute to be resolved through arbitration, two conditions […]<\/p>\n","protected":false},"author":12,"featured_media":3596,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_joinchat":[],"footnotes":""},"categories":[1],"tags":[],"class_list":["post-3595","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-makaleler"],"_links":{"self":[{"href":"https:\/\/www.ozkokhukuk.com\/en\/wp-json\/wp\/v2\/posts\/3595","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.ozkokhukuk.com\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.ozkokhukuk.com\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.ozkokhukuk.com\/en\/wp-json\/wp\/v2\/users\/12"}],"replies":[{"embeddable":true,"href":"https:\/\/www.ozkokhukuk.com\/en\/wp-json\/wp\/v2\/comments?post=3595"}],"version-history":[{"count":1,"href":"https:\/\/www.ozkokhukuk.com\/en\/wp-json\/wp\/v2\/posts\/3595\/revisions"}],"predecessor-version":[{"id":3597,"href":"https:\/\/www.ozkokhukuk.com\/en\/wp-json\/wp\/v2\/posts\/3595\/revisions\/3597"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.ozkokhukuk.com\/en\/wp-json\/wp\/v2\/media\/3596"}],"wp:attachment":[{"href":"https:\/\/www.ozkokhukuk.com\/en\/wp-json\/wp\/v2\/media?parent=3595"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.ozkokhukuk.com\/en\/wp-json\/wp\/v2\/categories?post=3595"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.ozkokhukuk.com\/en\/wp-json\/wp\/v2\/tags?post=3595"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}