ERDEM-NEWSLETTER-2018-metin

155 ARBITRATION LAW not have a work place, or the third parties are unaware of such a work place, or the representative authority is exercised elsewhere aside from the work place, the power of agency is subject to the law of the state where it is virtually exercised. The scholars have no consensus as to qualification of authority. Similarly, the court decisions and arbitral awards given on the au- thority to conclude an arbitration agreement do not provide explicit argumentation as to the qualification of the authority. According to the classifications made in line with above-mentioned results, the issue is assessed under the scope of “merits,” “capacity” and “representation.” In some disputes, judges and arbitrators directly apply substan- tive rules of lex fori without raising any argument as to the authority to conclude an arbitration agreement. The implementation of inter- national practice and internationally acknowledged principles, such as the good faith principle on authority, is commonly agreed upon. According to the French doctrine and court decisions that are in line with this view, no specific authority shall be required to conclude an arbitration agreement. Moreover, the representatives entitled to gov- ern a company should be able to conclude an arbitration agreement without being subject to the limitations of company regulations and law. Lastly, authorization to conclude an arbitration agreement should not be subject to any formal requirement. As also stated, above, in some disputes related to the authority to conclude an arbitration agree- ment before the Turkish Court of Appeal, the court has disregarded the discussions on applicable law, and has granted its decision by merely focusing on the good faith principle. Conclusion The issue of authority, which arises upon the conclusion of an arbitration agreement on behalf of a third person by an agent, may trig- ger several discussions since the matter is not explicitly regulated by national and international provisions. From the perspective of Turkish law, the provisions on requirement of specific authority for the agent remain as an important pitfall of Turkish arbitration law, which should be revised as per international commercial practices.