Are the Arbitrators Suitable to Apply Public Policy Provisions in International Commercial Arbitration? Are the Arbitrators Suitable to Apply Public Policy Provisions in International Commercial Arbitration?

Uluslararası Ticari Tahkimde Görev Alan Hakemler Dış Ülkelerin Kamu Politikalarına Uygun Karar Vermeye Ehiller midir?

Yunus Emre ERSOY

States virtually maintain some restrictions upon the subject matter of arbitration such as states’ public policy provisions. The extent of public policy in the international commercial arbitration becomes more comprehensive than that of the New York Convention, where it might be a defence against enforcement when the arbitral award is rendered; hence the problem occurs only at the final stage of arbitral process. Besides that, arbitrability also directly relates to public policy provisions that has effect on the base of the arbitration agreement or, more specifically, arbitration clause. It seems that arbitrators will have more discretion in arbitration process as to applying of domestic public policy provisions in the future, but are they really suitable to do that?

International Commercial Arbitration, Arbitrator, Public Policy Provisions, New York Convention, Dispute Resolution.

Küreselleşen dünyada ekonomilerin gönencini artırmak, tedarik sürecini kısaltarak uluslararası ticarete hız kazandırmak yalnızca ortaya çıkan ticari sorunları olabildiğince kısa ve etkili yöntemlerle çözerek hakkaniyetli bir biçimde neticelendirmekle mümkün olabilecektir. Ticari tahkim, tarafları uzun mahkeme prosedürlerinden ve yavaş işleyen bürokrasilerden vareste tutarak bu sorunların çözümünde anahtar rol oynamakta; peki ya uluslararası alanda görev alan ticari tahkim hakemleri çok iyi tanımadıkları dış ülkelerin kamu politikalarına uygun, uygulamaya koyulabilir kararları vermeye ehiller midir? Yoksa bu mesele yalnızca halihazırda meslekleri ve eğitimleri gereği ülkelerin kültürlerini, geleneklerini, iç hukuklarını bilen, uygulamalara ve içtihatlara aşina olan hakimlere mi bırakılmalıdır? Okumakta olduğunuz makalede bu konuda doktrinde kabul görmüş iki zıt görüş karşılaştırılmış, gerekçeler ve çekinceler de irdelenerek yeni bir yaklaşım getirilmiştir.

Uluslararası Ticari Tahkim, Hakemler, Kamu Politikaları, New York Konvansiyonu, Uyuşmazlık Çözüm Yolu.

Arbitration is a private system of adjudication. Parties who arbitrate have decided to resolve their disputes without using any state’s judicial system.¹ Parties in arbitration are totally free to decide whether to arbitrate their disputes or who the decision-makers will be and where the arbitration will take place and which procedural rules will be applied.² In our global world, disputes arise out of international transactions need to be resolved as effective as possible to increase the quality of cross-border trade and make more profit.³ Globalization fundamentally describes an economy where especially public and private companies regularly do cross-border transactions.⁴ Most industrialized countries allow private parties to arbitrate their transnational disputes in this “globalized” trade area; generally, arbitration agreements are recognized and enforced.⁵ Arbitration provides the most efficient way of dispute resolution to parties. Especially, for international trade and transnational investment areas, arbitration has become “the accepted method for resolving business disputes.”⁶ Therefore, parties increasingly turn to private arbitration to resolve their disputes.⁷ At the same time, virtually all nations maintain some restrictions upon the subject matter of arbitration such as states’ public policy provisions.⁸ On that sense, arbitration has a crucially important role between business and politics.⁹ And both developed and developing states are trying to grow arbitration’s scope in terms of arbitrable matters in order to get benefits from its advantages¹⁰, because it is also useful for them to take the burden away from their legal system.¹¹ It has also some benefits for the parties such as cost efficiency, quick procedure, more flexibility, less formal bureaucracy etc.¹²

The extent of public policy in the international commercial arbitration becomes more comprehensive than that of the New York Convention¹³, where it might be a defence against enforcement when the arbitral award is rendered; hence the problem occurs only at the final stage of arbitral process.¹⁴ However, arbitrability also directly relates to public policy provisions that has effect on the base of the arbitration agreement or, more specifically, arbitration clause. Nevertheless, this pertinence can also be used both at the beginning or at the end of process., as a defence against enforcement.¹⁵ Courts can refuse recognition and enforcement of foreign awards. This means that an arbitrator who makes a national award is bound to obey national public policy.¹⁶ When making a stateless award he is not bound by the public policy of any one country.¹⁷ It can be detected that public policy is contingent on the particular judgement system of any state. For this reason, the fact must be considered that one of the main principles of one state’s legal system can differ in another state’s, in terms of public policy, with regard to financial, bureaucratic, theological or social, and, therefore legal system.¹⁸

Three main principles are applied by the courts when determining whether an award is contrary to public policy. The first of the criterions is the international nature of public policy, the second one is application in concrete, and the third one is its evolving character.¹⁹ In many disputes, depending on the type of contract, arbitration is usually preferred over litigation as a dispute resolution tool; some other disputes end in litigation before state courts.²⁰ Finally, the commercial character of arbitration depends principally on nature of underlying dispute and, perhaps, also on the remedies requested.²¹ All systems of law throughout the world recognize the concept of ordre public, or public policy, in private international law.²² The public policy exception thus enables the forum to protect the sanctity of certain values and minimum standards of justice and morality.²³ Further, arbitration clauses are voluntary. The contracting parties freely waive the protection of their own courts in order to submit the disputes to an arbitral tribunal.²⁴