After the determination of the criteria for the assessment of the validity of the
arbitration agreement, the applicable law shall be determined. If this determination
results in the applicable law being Turkish law (where the Turkish law is agreed by
the parties or in the absence of such an agreement, the place of arbitration is agreed
as Turkey), the validity of the arbitration clause or agreement shall be examined
under Turkish law.
However, if it is determined that the Turkish court should apply the law of another
country other than that of Turkey, since the validity of the arbitration clause should
be examined according to that law, and it is enacted in Article 33 of TCPC that the
judge shall apply it ex officio, and since knowing the law of another country requires
special knowledge, the judge, according to Article 266 of TCPC, should have expert
examination carried out and the validity of the arbitration clause in question should
be determined by such expert examination.
As result of expert examination, if it is determined that the arbitration clause is
valid under the law of that country, the case should be rejected due to the arbitration
clause. On the other hand, as a result of the expert examination if it is determined that
the arbitration clause is found to be invalid under the law of that country, with the
rejection of the objection, judicial proceedings should be continued.
2.3 Validity of the Arbitration Clause in the Bill of Lading
If, as explained above, the validity of the arbitration clause is to be determined
according to Turkish law, the clauses incorporated in the bills of lading and the
charterparties referred to, should be examined and the validity of the arbitration
clause should be evaluated in the light of the following points.
The contract of affreightment may be defined as the contract between the carrier
and the charterer for the carriage of goods by sea. Therefore, the contract of
affreightment, may be divided into two categories as follows:
1. Charter contracts, issued for the carriage of the goods, referred to as bulk cargo,
by vessels carrying out irregular voyages. A single charterer (or multiple charterer
providing multiple merchants coming together), holds a vessel for the carriage of
goods and issues a charterparty contract with the carrier.
2. A contract, issued by a carrier carrying out regular voyages referred to as liner
voyages, or a single voyage with numerous individual shippers, referred to as a
contract of affreightment. Contrary to charterparty contracts, in a contract of
affreightment, the vessel is not allocated to a single shipper or multiple shippers.
Even in container carriage, where there are numerous individual shippers, they
are reassured of their cargo being carried from one place to another.
The arbitration clause in a contract of affreightment issued between the carrier
and the charterer should be evaluated separately according to the two types, mentioned above.
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P. Akan
arbitration agreement, the applicable law shall be determined. If this determination
results in the applicable law being Turkish law (where the Turkish law is agreed by
the parties or in the absence of such an agreement, the place of arbitration is agreed
as Turkey), the validity of the arbitration clause or agreement shall be examined
under Turkish law.
However, if it is determined that the Turkish court should apply the law of another
country other than that of Turkey, since the validity of the arbitration clause should
be examined according to that law, and it is enacted in Article 33 of TCPC that the
judge shall apply it ex officio, and since knowing the law of another country requires
special knowledge, the judge, according to Article 266 of TCPC, should have expert
examination carried out and the validity of the arbitration clause in question should
be determined by such expert examination.
As result of expert examination, if it is determined that the arbitration clause is
valid under the law of that country, the case should be rejected due to the arbitration
clause. On the other hand, as a result of the expert examination if it is determined that
the arbitration clause is found to be invalid under the law of that country, with the
rejection of the objection, judicial proceedings should be continued.
2.3 Validity of the Arbitration Clause in the Bill of Lading
If, as explained above, the validity of the arbitration clause is to be determined
according to Turkish law, the clauses incorporated in the bills of lading and the
charterparties referred to, should be examined and the validity of the arbitration
clause should be evaluated in the light of the following points.
The contract of affreightment may be defined as the contract between the carrier
and the charterer for the carriage of goods by sea. Therefore, the contract of
affreightment, may be divided into two categories as follows:
1. Charter contracts, issued for the carriage of the goods, referred to as bulk cargo,
by vessels carrying out irregular voyages. A single charterer (or multiple charterer
providing multiple merchants coming together), holds a vessel for the carriage of
goods and issues a charterparty contract with the carrier.
2. A contract, issued by a carrier carrying out regular voyages referred to as liner
voyages, or a single voyage with numerous individual shippers, referred to as a
contract of affreightment. Contrary to charterparty contracts, in a contract of
affreightment, the vessel is not allocated to a single shipper or multiple shippers.
Even in container carriage, where there are numerous individual shippers, they
are reassured of their cargo being carried from one place to another.
The arbitration clause in a contract of affreightment issued between the carrier
and the charterer should be evaluated separately according to the two types, mentioned above.
6
P. Akan