Is Mediation As A Cause Of Action Subject To Entity Of Arbitration Agreement? 24 September 2019

Arbitration agreement is an agreement that is concluded between parties by solving the dispute between parties by arbitrators instead of regular government jurisdiction. In other words, having dispute upon a right, two parties’ consensus on this dispute’s be examined and concluded by particular people is called arbitration.¹

There must be an arbitration agreement between parties to apply arbitration path. At this point declaration of will concerning the solution via arbitration of disputes arisen or that may arise between parties is one of the fundamental elements of arbitration agreement. Arbitration as an alternative dispute resolution mechanism of civil and criminal jurisdiction is the most common preferred method in international commercial transactions.

With the law no. 7155 “Procedure of Starting Legal Proceedings Against Pecuniary Credits Arising From Subscription Agreements” (“The Law no. 7155”) promulgated in Gazette dated 19.12.2018, 5/A article is added to Turkish Commercial Code (“TCC”) With the new regulation, the mediation process becomes mandatory before initiating a lawsuit for commercial disputes regarding payment of a certain amount of money and compensation claims. As of the date of 01.01.2019, before opening a law suit via commercial credits and compensation demands with the arbitration organization as a cause of action which is mandatory, it is aimed to relieve the caseload at courts and reach the just resolution fast.

The effect of mediation as a cause of action to arbitration is clarified at Law no. 7155’s “Mediation as a Cause of Action” entitled article 18/A. Pursuant to Article 18/A paragraph 18, “If there is appeal obligation to arbitration or another alternative dispute resolution at specific laws or if there is an arbitration agreement, then provisions related to mediation as a cause of action cannot be implemented.” Therefore, provisions related to mediation as a cause of action cannot be implemented if there is an arbitration agreement between parties. But parties may apply to mediation intentionally if they wish. On the other hand, even if there is an arbitration agreement between parties, in case of opening a law suit at court to resolve the dispute, in the event of the dispute is in the scope of mediation as a cause of action, the provisions related to mediation as a cause of action will be applied.

[1] ] YAVUZ, Cevdet: “Türk Hukukunda Tahkim Sözleşmesi ve Tabi Olduğu Hükümler”, Tasarruf Mevduatı Sigorta Fonu Marmara Üniversitesi Hukuk Fakültesi II. Uluslararası Özel Hukuk Sempozyumu “Tahkim”, İstanbul, 2009, s. 133