Enforceability of Emergency Arbitrator Decisions

Within the Framework of Turkish Arbitration Legislation

In Turkish law, domestic arbitration is regulated by the Code of Civil Procedure numbered 6100 (“CCP”), while international arbitration is governed by the International Arbitration Law numbered 4686 (“IAL”).

Under Article 6/3 of the IAL, if a party does not comply with an interim measure decision rendered by the arbitral tribunal, the other party may seek court assistance. The interim measure granted by the arbitrator lacks independent enforceability; if not complied with, it must be made enforceable through court assistance. This provision differs from Article 414 of the CCP. While the CCP explicitly permits courts to enforce interim legal protection measures granted by arbitrators in domestic arbitration, the IAL does not explicitly specify that courts have the duty to directly enforce interim measure decisions rendered by arbitrators.

Different doctrinal views exist on the classification of emergency arbitrators as arbitrators. Some scholars argue that emergency arbitrators should be regarded as fully empowered arbitrators with arbitral powers for all purposes. Consistent with this view, others argue that if the arbitration rules adopted by the parties provide that emergency arbitrator decisions have an effect equivalent to arbitral awards, then emergency arbitrator decisions must likewise be considered arbitral awards[1]. 

As noted above, the IAL requires court assistance. However, the scope of the court’s review under Article 6 of the IAL is unclear; it does not expressly regulate whether the court will conduct only a prima facie review of the arbitral award or an independent examination for an interim measure[2]. 

In doctrine, the wording “may seek the assistance of the court” in Article 6/3 of the IAL should be interpreted not as the court issuing a new decision, but as the court granting enforceability to the arbitrator’s decision[3]. According to one view, since Article 6/4 of the IAL provides that courts may issue interim measures and interim attachment orders, Article 6/3 must have a different meaning.

In practice, some court opinions[4] tend to conduct independent examinations based on their own legal principles when dealing with interim measures granted by arbitrators. Some views assert that courts will not merely examine the validity of the arbitration agreement and enforce the arbitrator’s decision as it stands but must reassess the measure's requirements within the framework of lex fori principles. It is also noted that the legislator deliberately chose specific wording in the CCP when explaining how courts should enforce interim measures granted by arbitrators, whereas no such explicit provision exists in the IAL for international arbitrations.

Within the Framework of the New York Convention

The enforcement of emergency arbitrator decisions under the New York Convention depends on whether such decisions are “final” in nature. Under the New York Convention, for a decision to be enforceable as an “arbitral award,” three conditions should be met: (i) the decision must be rendered by arbitrator(s), (ii) it must be binding, and (iii) it must finally resolve the dispute, in whole or in part. Emergency arbitrator decisions generally satisfy the first two conditions. However, doctrine lacks consensus on whether these decisions meet the finality requirement.

One view holds that interim relief decisions rendered by emergency arbitrators are final regarding their subject matter and differ from procedural orders. Another view argues that these decisions cannot be considered final because the arbitral tribunal may later modify or set them aside. Based on this, some assert that emergency arbitrator decisions cannot be enforced under the New York Convention.

However, it would be inaccurate to claim that decisions clearly intended to be binding on parties, issued in writing and signed by arbitrators, cannot be enforced under the New York Convention merely because they are temporary. The fact that interim relief decisions are granted for a limited time does not remove them from the Convention's scope. Moreover, the possibility that the arbitral tribunal may later modify or set aside such decisions does not, by itself, prevent their enforcement.

Another approach relies on Article V of the New York Convention's wording. According to this view, the Convention requires “binding” effect not “finality” as a condition for enforcement. Therefore, emergency arbitrator decisions, which are binding on parties, may be enforced under the New York Convention[5]. 

The Approach of the Court of Cassation

A decision of the 11th Civil Chamber of the Court of Cassation concerned a request for recognition in Türkiye of a partial arbitral award rendered in ICC arbitration. The Court emphasized that, regarding recognition and enforcement of partial awards, the New York Convention requires “binding” effect rather than “finality,” and stated that the finalization requirement under Article 45/1 of the Law on Private International Law and Procedural Law numbered 5718 should be interpreted as bindingness.

This decision also constitutes an important precedent for emergency arbitration. The Court of Cassation’s prioritization of binding effect over finalization and its acceptance that an interim or partial decision providing legal protection constitutes a final determination on the matter for a limited time, demonstrates that there is no conflict between a decision producing effects only for a certain duration and its final character. This approach directly applies to emergency arbitrator decisions; these decisions are also interim in nature and produce effects for a limited period (typically until the arbitral tribunal is constituted), yet they yield a final result regarding the requested interim measure.

According to the Court of Cassation, for a partial award to be considered final regarding the matter it addresses, it is sufficient that the aspect of the dispute resolved by the partial award constitutes a separable and independent issue. The fact that proceedings continue after the partial award's issuance does not require waiting for the entire dispute to be resolved and the arbitration to be concluded before the award can be enforced. Emergency arbitrator decisions also meet this. These decisions address a matter separable from the dispute’s merits (the need for interim relief) and can be regarded as an independent issue.

The New York Convention’s emphasis on bindingness rather than finalization requires that the binding effect of decisions rendered according to relevant arbitral institution rules be assessed within the framework of those rules. This opens the door for recognizing decisions issued pursuant to arbitral institutions’ emergency arbitration rules. The fact that institutions such as the ICC expressly provide that emergency arbitrator decisions are binding constitutes an important basis for enforcing such decisions in Türkiye.

Conclusion

For emergency arbitrator decisions to be effectively enforceable, clearer and more consistent approaches are required both at the legislative level and in judicial practice. Eliminating uncertainties in the IAL, standardizing court practices, and promoting a New York Convention interpretation that focuses on bindingness are essential for meeting arbitration users’ emergency protection needs and enhancing arbitration’s effectiveness.