ERDEM-NEWSLETTER-2018-metin

162 NEWSLETTER 2018 For this reason, the subrogation of the insurer is characterized as a legal assignment 5 . The Situation under Turkish Law The extension of the arbitration agreement to the insurer becomes an issue when there is an arbitration clause in the contract between the insured and the person who has caused the damages. In this case, it is necessary to determine whether the insurer may lean upon the arbitra- tion agreement concluded between the insured and the person who caused the damages, and whether the person who caused the damages is obliged to apply to arbitration with the insurer 6 . The issue with regard to the extension of the arbitration agree- ment to the insurer often comes to the fore in disputes arising from carriage contracts due to damage of the insured goods. In this regard, the Court of Cassation assesses the issue as to the extension of the arbitration agreement to the insurer in many decisions, while consider- ing the extension of the arbitration agreement in the carriage contract and bill of lading to the consignee. It is held in one of the decisions of the General Assembly of the Civil Chambers of the Court of Cassation (“GACC”) regarding this is- sue that the arbitration clause in the bill of lading between the insured and the damaging party shall be extended to the insurer due to the principle of subrogation 7 . The dispute derived from goods that were damaged during sea carriage. In this regard, the insurance company that made payment to the insured regarding the damages that occurred to the goods, filed a lawsuit against the carrier regarding damages; whereas, the carrier requested the court to reject the claim based on the arbitration clause under the carriage agreement concluded between the shipper and the carrier. The GACC, firstly, elaborated upon whether the arbitration clause in the bill of lading shall be extended to the third party consignee within the scope of the carriage relationship. Within this scope, the GACC held that the bill of lading shall be taken into ac- 5 Omağ, p. 66. 6 Esen , p. 195. 7 Decision of the General Assembly of the Civil Chambers of the Court of Cassa- tion, 1.2.1995, No. 1994/11-765 E. 1995/39 K.