Violation of the Right to A Fair Trial in Arbitration: Analysing the Turkish Court of Cassation’s Decision of 10 February 2021

Year 2022, Issue: 71, 99 - 177, 31.12.2022

Emre Esen

https://doi.org/10.26650/annales.2022.71.0003

Abstract

Based on a recent Turkish Court of Cassation decision, this article puts forward that the right to a fair trial, embodied nearly in all legal systems and fundamental international regulations such as ECHR, must be respected in arbitration proceedings as well. Since member states indirectly exercise control over arbitration proceedings during the annulment or enforcement phase, member states’ courts ensure that arbitrators comply with the principles of ECHR, specifically with the right to a fair trial. Additionally, most national laws impose a duty on arbitrators to observe the equality of the parties, which in turn serves to the application of fair trial principles. The right to a fair trial is also an essential part of public order, a violation of which shall lead to the annulment of arbitral awards or dismissal of the recognition and enforcement thereof. As a basic element of the right to a fair trial, the right to be heard encompasses the right to be informed about the allegations, defenses, and evidence that occupy the foreground of this article. This article first reviews the decision of the court of first instance, followed by the Court of Cassation decisions rendered upon the request for appeal and later, request for revision.

Keywords

Arbitration, Public order, Right to a fair trial, Right to be heard, Equality of parties

References

• Akıncı Z, Milletlerarası Tahkim (Vedat Kitapçılık 5th ed 2020)
• Ashford P, The IBA Rules on the Taking of Evidence in International Arbitration: A Guide (Cambridge University Press 2013)
• Aygül M, Milletlerarası Ticarî Tahkimde Tahkim Usûlüne Uygulanacak Hukuk ve Deliller (On İki Levha Yayıncılık 2014)
• Bantekas I, ‘Equal Treatment of Parties in International Commercial Arbitration’ (2020) 69 (4) International and Comparative Law Quarterly 991-1011.
• Born GB, International Commercial Arbitration vol I, (Wolters Kluwer 3d ed. 2020) Born GB, International Commercial Arbitration vol II (Wolters Kluwer 3d ed. 2020) Born GB, International Commercial Arbitration vol III (Wolters Kluwer 3d ed. 2020)
• Erdönmez G, Pekcanıtez Usûl Medenî Usûl Hukuku (On İki Levha Yayıncılık 15th ed. 2017)
• Krūmiņš T, Arbitration and Human Rights: Approaches to Excluding the Annulment of Arbitral Awards and Their Compatibility with the ECHR (Springer 2020)
• O’Malley ND, Rules of Evidence in International Arbitration: An Annotated Guide (Routledge 2012)
• Özsunay E and Özsunay MR, ‘Interpretation and Application of the New York Convention in Turkey in Recognition and Enforcement of Foreign Arbitral Awards’ in (George A. Bermann ed) The Interpretation and Application of the New York Convention by National Courts (Springer 2017)
• Poudret JF and Besson S, Comparative Law of International Arbitration (Sweet & Maxwell 2006)
• Şanlı C, Uluslararası Ticari Akitlerin Hazırlanması ve Uyuşmazlıkların Çözüm Yolları (Beta 7th ed. 2019)
• Yılmaz E, Hukuk Muhakemeleri Kanunu Şerhi vol 1 (Yetkin 4th ed. 2021)