Arabuluculuk ve Tahkimi Bir Arada Içeren Uyuşmazlık Çözüm Yolu

Abstract

Parties may agree that in the case of a dispute they shall first try to settle this dispute through mediation and only if the mediation fails may they start arbitration proceedings. Under Turkish law, such multi-tier dispute resolution clauses are valid to the extent that the parties’ intention to resort to arbitration is clear. In the case where one of the parties starts the arbitration without first invoking the mediation, the arbitral tribunal should interpret the arbitration agreement to determine whether the mediation is a pre-condition of arbitration. If the mediation is a pre-condition, the tribunal should suspend the arbitral proceeding for the parties to invoke the mediation. However, if the mediation fails, then the tribunal will resume the proceedings. The question of whether or not the mediator should also act as the arbitrator in relation to the same dispute is highly debatable because of the risks imminent thereto. Under the ethics rules accepted in the USA, in Europe and in Turkey, the mediator may act as arbitrator only if the parties agree thereon in written form. When the parties consent to the mediator acting as arbitrator there is still the risk of the mediator-arbitrator having prejudices because of the information and documents disclosed during the mediation proceedings. Another question is whether the information or documents disclosed throughout the mediation are admissible evidence at the arbitral proceedings. However, the solution is clear: while the documents prepared for the sole purpose of settling the dispute at the mediation are inadmissible, the documents related to the facts are admissible. In November 2019, Istanbul Arbitration Center (ISTAC) introduced its own Med-arb rules, namely the ISTAC Med-arb Rules. They are the first published institutional Med-arb rules and reflect the best practices in international mediation – arbitration. I am confident that ISTAC Med-arb Rules will be welcomed in the field of international dispute resolution with great enthusiasm.