ERDEM-NEWSLETTER-2018-metin

158 NEWSLETTER 2018 contract executed between the parties and will not give further factual details. Briefly, the dispute arises from a contract for licensing and distribution of certain products in Turkey, signed between a Turkish party and a Swiss company, and was signed in English. The contract included an arbitration clause, which was drafted only in English. The Decision The Swiss party initiated a lawsuit before the Turkish courts for a declaration of the rightfulness of its termination of the contract due to breaches of the Turkish party, and latter then justly filed a jurisdiction- al objection. The Turkish Commercial Court accepted this objection. However, the Swiss party appealed the decision of the Commercial Court which brings us to the decision of the Court of Cassation. The Court of Cassation ruled that Law No. 805 should have been consid- ered in determining the validity of the arbitration agreement when de- ciding on the rightfulness of the jurisdictional objection and remanded the file to the lower court 3 . The Commercial Court then re-examined the case, and rendered a decision on the merits of the case, as well. The Commercial Court decided that the Turkish party should not be allowed to base its jurisdictional objection on an arbitration agreement drafted in English. The decision was appealed again by the Turkish party who alleged that Law No. 805 was not applicable to agreements where only one of the parties was Turkish. However, this allegation was not accepted by the Court of Cassation. On 26 September 2017, the Court of Cassation upheld the Commercial Court’s decision 4 . Application of Law No. 805 The decision of the Court of Cassation makes a passing mention of Law No. 805, which reads as follows: 3 11th Civil Chamber of the Court of Cassation decision, 4.03.2013, No: 2012/4088 E. 2013/3972 K. 4 11th Civil Chamber of the Court of Cassation decision, 26.9.2017, No: 2016/5836 E. 2017/4720 K..