ERDEM-NEWSLETTER-2018-metin

164 NEWSLETTER 2018 tion clause to the insurer was discussed. In the related dispute, the defendant carrier party propounded on the arbitration clause in the bill of lading, and submitted a jurisdictional objection considering arbitra- tion. The Court found that there was no clear, definite or unfaltering arbitration clause in the bill of lading, and that there was no reference to an explicit and definite date to the charter-party. Thus, the Court held that the jurisdictional objection could not be accepted, and the related part of the decision was approved by the Court of Cassation 10 . The above-mentioned jurisprudence of the Court of Cassation considered the arbitration clause to be valid between the insured and damaging party, to be within the scope of the succession, and that it binds the insurer 11 . Although the Court of Cassation decisions render that the insurer is bound by the arbitration clause in the carriage agreement due to principle of subrogation, it is criticized in the doctrine that the issue as to whether the insurer has the intention to elect arbitration with the damaging party, or whether the damaging party intends to elect arbitration with the insurer was not thoroughly examined. According to this view, the will to apply arbitration between the parties must explicitly and without hesitation be revealed by the parties. In the ab- sence of such will, it is expressed that the extension of the arbitration agreement to the insurer is not possible only due to the principle of subrogation 12 . Conclusion According to the principle of subrogation, the rights of the insured against the third party shall be transferred to the insurer through the payment of the insurance indemnity, and by taking into consideration the proportion of the payment. In the event that there is an arbitration agreement between the contractual relationship between the insured and the damaging party, the issue as to whether the said arbitration agreement shall be valid and binding for the insurer comes to the fore. 10 Decision of the 11th Civil Chamber of the Court of Cassation, 19.11.2014, No. 2013/15039 E. 2014/17925 K. 11 Esen, p. 198. 12 Esen, p. 201-202.