Originally from Arbitration Law of Turkey: Practice and Procedure

CHAPTER 12

ARBITRATION PROCEEDINGS

12.1 GENERAL

Under the principle of freedom to contract, the parties are free to agree on the procedural rules that the sole arbitrator or arbitral tribunal will apply, or the parties may refer to a law, or to the rules of international or institutional arbitration. The TIAC has only a few mandatory rules such as equal treatment and due process.

Where the parties fail to agree on the procedural rules for the arbitration, the sole arbitrator or arbitral tribunal will conduct the arbitration in accordance with TIAC. This important characteristic entails that the specific procedures can be tailor-made as appropriate for each dispute and adapted to the legal cultures of the parties and the arbitrators. In order to establish the appropriate procedures for a given arbitration, it is useful and efficient for the parties and the tribunal to make conscious decisions as early as possible on the procedures best suited to the dispute at hand. In making those decisions, it is possible to shape the arbitral proceedings so that the duration and cost of the arbitration are commensurate with what is at stake in the case and appropriate in light of the claims and issues presented.

No matter which procedural rules are applied, under Article 8 of TIAC the parties shall have equal rights. The parties must be given equal opportunities to present their claims and defenses.

The parties are free to determine the procedural rules to be applied and may do so directly or by reference to given arbitration rules. In practice, it is one of the first actions of the arbitrators to state the procedural rules that are to be applied in the arbitration proceedings such as the language of the arbitration, the addresses to be used throughout or notifications that will be made etc. In the Terms of Reference, the arbitrators will state detailed information for the procedure to be applied to the arbitration.

In theory the mandatory rules of the Turkish International Arbitration Law, may seem to limit the parties’ freedom, however as a matter of principle, and in practice, save few exceptions such as equal treatment principle or due process, Turkish International Arbitration Law fundamentally respects the parties’ freedom.