Violation of the Right to A Fair Trial in Arbitration: Analysing the Turkish Court of Cassation’s Decision of 10 February 2021

Abstract

Based on a recent Turkish Court of Cassation decision, this article puts forward that the right to a fair trial, embodied nearly in all legal systems and fundamental international regulations such as ECHR, must be respected in arbitration proceedings as well. Since member states indirectly exercise control over arbitration proceedings during the annulment or enforcement phase, member states’ courts ensure that arbitrators comply with the principles of ECHR, specifically with the right to a fair trial. Additionally, most national laws impose a duty on arbitrators to observe the equality of the parties, which in turn serves to the application of fair trial principles. The right to a fair trial is also an essential part of public order, a violation of which shall lead to the annulment of arbitral awards or dismissal of the recognition and enforcement thereof. As a basic element of the right to a fair trial, the right to be heard encompasses the right to be informed about the allegations, defenses, and evidence that occupy the foreground of this article. This article first reviews the decision of the court of first instance, followed by the Court of Cassation decisions rendered upon the request for appeal and later, request for revision.