Seperability of the Arbitration Agreement in International Arbitration

Yıl 2008, Cilt: 1 Sayı: 1, 108 - 114, 01.01.2008

Altan Fahri Gülerci

Öz

Today, international trade is growing rapidly. However, there isn’t any international court to resolve disputes between the parties to international commercial contracts. The lack of international courts makes international arbitration an excellent path to follow. Arbitration is an alternative to national courts. Specialization, informality, flexibility and speed are the advantages of international arbitration. The international arbitration agreement is the main element of international arbitration. The arbitration agreement gives the arbitrator the power to resolve disputes. The subject of the required attributes of an arbitration agreement is controversial. There are four theories about it: the contractual theory, the jurisdictional theory (the procedural theory), the mixed theory (the hybrid theory) and the independent theory (the autonomous theory). It is an undeniable fact that an arbitration agreement has both contractual and procedural characteristics. There are four elements of an international arbitration agreement: a legal relationship between the contract sides, a mutual understanding, arbitrability and a foreign element. An international arbitration agreement must be in written form. The written form is a must for validity but can appear in different ways. One of them is to make an international arbitration agreement by changing telecommunication tools. It has also the same effect if there is a reference to standard contract terms which contains an international arbitration clause. Everybody who has the capacity for legal transaction and the power of discernment can make an international arbitration agreement. However, an agent must have the specific power to make an arbitration agreement. There are three types of international arbitration agreements: a stand-alone arbitration agreement, an arbitration clause and a unilateral international arbitration agreement.