NEWSLETTER-2017

149 ARBITRATION LAW In terms of domestic arbitration, pursuant to Article 408 of the CCP, disputes pertaining to rights in rem on immovable property, or disputes arising out of issues that do not depend on the will of the par- ties are not arbitrable. In terms of international arbitration, arbitrability is regulated under Article 1/4 of the IAA. This article is in parallel with Article 408 of the CCP, and sets forth that the IAA shall not be applied to those disputes pertaining to rights in rem on immovable property located in Turkey, and to the disputes that are not subject to the will of the parties. As both of these provisions set forth that the disputes pertaining to rights in rem on immovable property are not arbitrable, the disputes that relate to issues such as property, usufruct, easement and liens may not be resolved through arbitration under Turkish law. The disputes that are not subject to the will of the parties cover issues upon which the parties do not have freedom of contract. These issues are either regulated through mandatory rules, or are not subject to the will of the parties, based on their characteristics. For instance, criminal law issues and disputes on enforcement and bankruptcy law are held to be non-arbitrable. In addition, the Court of Cassation opines that the disputes pertaining to determination of lease payments, evacuation of property, tax disputes, and labor law disputes are non-arbitrable 2 . The issue of arbitrability is analyzed under two different catego- ries, namely, procedural law and substantive law 3 . The arbitrability pertaining to substantial law provides that the parties may dispose of the subject matter through their free will. Accordingly, if procedures, such as settlement, acceptance and waiver are possible concerning the subject matter, the dispute is arbitrable in terms of procedural law. A dispute is arbitrable in terms of substantive law in the event that the parties to the dispute may dispose of the right that is subject to dispute. The Relationship between Arbitrability and Public Policy Whether a dispute is arbitrable or not is determined in accordance with public policy and the political and economic policies of the rel- 2 Erdem, p.189. 3 Burak, Huysal, Milletlerarası Ticari Tahkimde Tahkime Elverişlilik, İstanbul 2010, p.197.