ERDEM-NEWSLETTER-2018-metin

161 ARBITRATION LAW The extension of the arbitration agreement to third parties can be described as an extension of the scope of the arbitration agreement so as to include third parties who are not parties to this agreement, and that these persons’ participation in the adjudication as claimant or respondent 2 . On the one hand, inclusion of third parties in the lawsuit through an extension in certain cases is considered to be fair but, on the other hand, the doctrine considers that an extension is an issue to which arbitrators and courts approach cautiously 3 . Subrogation of the Insurer One of the cases in which an arbitration agreement is extended to third parties is through subrogation. Subrogation is generally defined as the replacement of someone by another, as are the inheritance of one’s rights by another. The subrogation of the insurer is the legal transfer of the receivable for compensation, considering the amount of the paid insurance indemnity that the insured is entitled to against a third party, for any legal reason for damages that arise upon realization of the risk, to the insurer 4 . Under Turkish Law, subrogation of the insurer is stipulated under Article 1472 of the Turkish Commercial Code. Pursuant to the said provision, the insurer shall succeed the insured upon payment of the insurance indemnity that derives from the realization of the risk within the scope of the insurance. If the insured has the right to sue third parties who are liable for the loss incurred, this right shall pass to the insurer up to the amount it has paid. In this regard, the subject of the succession is the right to claim that the insured is entitled against the third party. This right of the insured against the third party shall be transferred to the insurer upon the payment of the insurance indem- nity, and taking into consideration the proportion of the amount paid. 2 Köşgeroğlu, Şit, Banu, Yabancı Hakem Kararlarının Üçüncü Kişilere Karşı Teşmili, Gazi Üniversitesi Hukuk Fakültesi Dergisi C. XV, Y. 2011, No. 3, p. 5. 3 Esen, Emre, Uluslararası Ticari Tahkimde TahkimAnlaşmasının Üçüncü Kişilere Teşmili, İstanbul, 2008, p. 85 vd.; Köşgeroğlu, p. 6. 4 Omağ, Merih Kemal, Türk Hukukunda Sigortacının Kanuni Halefiyeti, Istanbul 2001, p. 35.