NEWSLETTER-2017

152 NEWSLETTER 2017 In another decision, the Court of Cassation decided that the dis- putes pertaining to determination of lease payments are not arbitrable. In its analysis, the Court of Cassation made reference to the criterion of whether the parties may conclude an agreement of their free will on the subject matter of dispute and, in addition, it asserted that the matter of determination of lease payments is not subject to the parties’ free will, as it concerns public policy and, therefore, it is not possible to resolve this dispute through arbitration 10 . Conclusion Arbitrability is one of the conditions of validity pertaining to the substance of the arbitration agreement, and is important not only in terms of validity of the arbitration agreement, but also in terms of recognition and enforcement lawsuits. Accordingly, the determination of whether a dispute is arbitrable or not is important. In many of its decisions, the Court of Cassation has a practice to accept that disputes are non-arbitrable, if the subject of dispute is of public policy. Indeed, one of the elements that determine arbitrability is public policy. How- ever, the criteria of public policy is not found in the legal provisions that regulate this issue of arbitrability. Accordingly, it is important not to ground the issue of arbitrability solely on public policy, and not to give rise to confusion between these two concepts, which are distinct grounds for refusal of recognition and enforcement of arbitral awards. 10 Decision of the 3rd Civil Chamber of the Court of Cassation dated 02.12.2004 and numbered 2004/13018 E., 2004/13409 K. Source: www.kazanci.com .