NEWSLETTER-2017

150 NEWSLETTER 2017 evant country 4 . Accordingly, there is a close link between arbitrability and public policy. On the other hand, arbitrability is not the same issue as public policy, and conducting a review of public policy during the review pertaining to arbitrability is insufficient. Indeed, the necessity of analyzing these two issues, separately, manifests itself in terms of recognition and enforcement proceedings. The Convention on the Recognition and Enforcement of Foreign Ar- bitral Awards (New York, 1958), (“New York Convention”) regulates these two issues under different provisions. Article V(2) of the New York Convention distinguishes between the issue of arbitrability and public policy. Subsection (a) of the relevant article sets forth that recognition and enforcement of an arbitral award may be refused if the subject matter of the difference is not capable of settlement by arbitration under the law of that country. On the other hand, the sub- section (b) sets forth that the enforcement may be refused if it would be contrary to the public policy of that country. On the other hand, as generally accepted by the Court of Cassa- tion, as the issues pertaining to public policy may not be subject to the free disposal of the parties, it would not be possible to conclude an arbitration agreement on issues pertaining to public policy 5 . Ac- cordingly, the refusal of arbitration agreements on issues pertaining to public policy manifests itself as a practice of the Court of Cassation. This perception of the Court of Cassation setting forth that issues unrelated to public policy are arbitrable is subject to criticism by the Turkish doctrine. Accordingly, in the doctrine, it is stated that the ac- ceptance of a parameter, such as public policy, which does not find its justification under codified sources, has survived until this day as a manifestation of the distrust in arbitration 6 . The Precedents of the Court of Cassation In many precedents of the Court of Cassation in which the issue of arbitrability has been analyzed, a review on public policy has been 4 Erdem, p.189. 5 Huysal, p.199. 6 Huysal, p. 203.