Is It Possible To Collect The Receivables Arising From The Contracts With Arbitration Clause Through Enforcement Proceedings? 6 September 2019
Associated with the development of international trade, the relations between the parties of the commercial relationship have become diversified, complicated and the nationalities of the parties have started to be different from each other. Therefore, the parties have decided to stipulate arbitration clauses in the contracts in order to resolve various and complex disputes arising from the contractual relationship between them to be solved by experts in their field and to prevent the parties who are subject to different nationalities to encounter a legal order that they do not recognize. In spite of a valid arbitration clause, there is no explicit provision under Turkish Law as to whether the receivables arising from this contract can be collected through enforcement proceedings without judgement or not.
As a matter of fact, there is no consensus on this subject in the decisions of the Supreme Court. In the decision of the 13th Chamber of the Supreme Court dated 3.11.1978 and numbered 1978/4625 E. it is stated that “the enforcement proceedings cannot be performed unless the objection on arbitration has been renounced with both sides, and the enforcement proceedings should also be judged to be unfair ”; on the other hand 12th Chamber of the Supreme Court ruled in the 1990/8745 E. dated 27.2.1990 that the existence of a valid arbitration clause shall not constitute an obstacle to initiate an enforcement proceeding.
There are different views in the doctrine, while some authors argue that since the arbitration clause prevents to file a case and the enforcement proceedings cannot be classified as a case, the arbitration clause will not prevent the enforcement proceedings with judgement; the others argue that enforcement proceedings which are mostly subject to receivables cannot be initiated due to the arbitration clause which excludes the state jurisdiction over the dispute between the parties. The mostly accepted opinion is, enforcement proceedings can be made in spite of the arbitration clause, and however, if the proceedings subside with the objection of the debtor, the case of the annulment of the objection should be heard in the arbitration.
However, in Enforcement and Bankruptcy Law, a general right to initiate an enforcement proceeding by seizure is granted to parties and there is no limitation on the arbitration clause of exercising this right. Therefore, as far as possible the way of arbitration and seizure should be used together. However, when these two legal remedies are preferred to each other, priority should be given to the arbitration agreement which is determined by the parties with their own will, taking into consideration the freedom of will prevailing in private law relations in our law.
As a result; enforcement proceedings through general seizure shall be initiated where the debtor does not object; however, if the debtor objects to the enforcement proceedings the case of annulment of the objection must be seen in the arbitration. It should not be forgotten that any other thought would invalidate the purpose of the arbitration agreement and its effect.
Türkçe Versiyonu İçin:
