Date of Award

9-2017

Degree Type

Dissertation

Degree Name

Doctor of Juridical Science (SJD)

Department

Law

First Advisor

Thomas Carbonneau

Abstract

Arbitrability establishes the essential boundary between the regulatory authority of the legal system and the contractual process of arbitration. Arbitrability may overlap with public policy and other vital concerns of national legal systems. Today's legal systems may clearly maintain the scope of their authority and resist acquiescing to the trend toward universal arbitrability. States may, in fact, choose to prioritize their sovereignty over other principles of law such as freedom of contract in some certain circumstances. Protecting and maintaining the legal apparatus supporting the social, political, and economic order of the State may require such an approach. Certain areas of law including criminal law or family law can demonstrate this point.

The competency era, however, has seen a diminution in cardinal legal values and the exclusivity of legal authority. While legal systems might evaluate overly generous delegations of adjudicatory power to arbitrators, such reevaluations rarely occur in the context of corporate disputes. Such disputes, indeed, are best regulated through the application of freedom of contract. Corporate disputes are highly complex and dynamic. They change constantly and vary based on an array of commercial relationships common in everyday business life. The number and type of problems that can lead to corporate disputes is constantly increasing. For national laws to foresee and address such problems in advance is extremely challenging.

Arbitration's dynamism, and its ability to adapt rapidly and provide expert-oriented solutions may allow it to meet the expectations of corporate practitioners. Corporate disputes can also benefit from the presence of expert arbitrators and the flexibility inherent to the arbitration process. International disputes, likewise, require greater flexibility than those that occur in a strictly domestic context. The scope of state intervention in the international arena is generally narrower than in domestic disputes. The strength of the state authority should therefore depend on the position of the dispute.

The statutory boundaries of Turkish law indicate that, in Turkey, the traditional limitations on arbitrability are general and equal for both domestic and international disputes. To begin with, the law is silent regarding the arbitration of disputes in the realm of corporate law. This has created significant disagreement among legal scholars. The courts have adopted a similarly ambivalent position on the issue, and consensus regarding the arbitrability of corporate disputes has not been reached in Turkish legal practice. Corporate disputes thus lack consistent settlement practices in the doctrinal, adjudicatory, and legislative dimensions of Turkish law. Critics highlight the fact that respect for the will of corporate parties regarding the submission of disputes to arbitration remains equivocal. Critics dispute the arbitrability of corporate disputes on several additional grounds: the exclusivity of judicial jurisdictional rules, violations of public policy, procedural impediments, and protection of shareholder rights. Civil law systems cannot tolerate such ambiguity because it leads to confusion among legal practitioners. Instability in dispute settlement can also harm foreign investment potential. Inconsistency in legal regulations, court rulings, and doctrinal commentary could have an irreversible long-term effect on Turkey as an emerging market.

This dissertation examines the arbitrability of corporate disputes by considering Turkish legislation, doctrinal commentary, and case law. It analyzes the main problematic areas, aiming to determine the problems' underlying causes and to suggest ways to overcome them. To accomplish this, the dissertation first establishes the general framework of arbitrability in Turkish law. This framework serves as a foundation for subsequent chapters, which focus on corporate disputes and require a basic knowledge of arbitrability. The dissertation then conducts a complete analysis of general arbitrability rules and corporate law regulations to identify the factors that affect the arbitrability of corporate disputes.

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