ERDEM-NEWSLETTER-2018-metin

154 NEWSLETTER 2018 to a form requirement in line with the British, Swedish, Finnish and Italian laws. The second subparagraph of Article 167 of the German Civil Code explicitly regulates that authorization is neither subject to any form requirement, and neither must it be in line with the form requirement of the transaction. Law Governing the Requirement of Specific Authority As stated, above, the lack of specific authority of an agent for an arbitration agreement may result in a challenge of the arbitral tribunal, annulment of the award, as well as refusal of the enforcement of the award. However, neither national nor international legislation regulat- ing the stated sanctions has an explicit answer as to which law governs the requirement of specific authority. In other words, none of the stated legislations answer whether or not the issue shall be governed by the “ law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made ,” or “ the law applicable to them (to the parties).” Therefore, in order to ascertain the law governing the authority, a qualification on this issue must be made. According to one view, the nullity of the arbitration agreement which was signed by an agent who lacks specific authority must be evaluated under the scope of the merits or material validity of the arbitration agreement. This opinion defends that the principal who did not grant authority to the agent to conclude an arbitration agreement never had the intent to enter into an arbitration agreement, which causes the nullity of the agreement based on its merits. Another view associates this issue with capacity, and interprets Article V/1(a) of the New York Convention in a wider scope by including the authority. The last view on this issue affirms that the conclusion of an arbitration agreement through an agent is a matter of representation, and the issue must be determined as per the law governing the representation/agency relationship or the effects of representation authority. Accordingly, under Turkish law, if an arbitra- tion agreement is concluded by an agent, the applicable law shall be determined pursuant to Article 30 of Private International and Proce- dural Law. As per the stated Article, the conditions required to bind the principal to third parties through the agent’s act are subject to the law of the representative’s work place. In cases where the agent does