NEWSLETTER-2019-metin

131 ARBITRATION LAW “However, an arbitration agreement or an arbitration clause in a contract between shareholders is invalid. Arbitration is valid only for the disputes which are subject to the will of the parties; in other words, for disputes that the defendant and the claimant can resolve the issue by agreement without the need for a court decision. However, it is not possible to resolve a dispute regarding the dissolution of a joint stock company through an agreement between the shareholders. In addition, the provisions that authorize the commercial court of first instance in the place of the company’s registered office in Articles 530 and 532 of TCC numbered 6102 do not comply with the arbitration concept.” 5 In my opinion, this decision of the Court of Cassation is incorrect, and cases concerning the dissolution of the company are arbitrable. My opinion is based on the fact that these disputes are subject to the will of the parties. The shareholders may decide on dissolution of the company in a general assembly meeting; therefore, dissolution depends on the will of the parties. The shareholding relationship is basically a contractual relationship, and again, depends on the will of the parties. Since arbitrators can make declaratory decisions, they can also determine whether the reasons of dissolution have occurred or not. The power granted to the courts in Articles 530 and 531 of the TCC may also be exercised by the arbitrators. There is no provision in the TCC preventing this. The jurisdiction of the court is not absolute. In addition, the arbitrators can also make an order for injunctive relief. As a matter of fact, the determination of the actual value as per Article 531 of the TCC is both easier and faster through arbitration. The argument against the arbitrability of disputes concerning dissolution of companies is based on the following assertions: The enforceability of decisions that are not final within the context of law of persons, and the lack of an appeal procedure against an arbitral award. These are not valid arguments. Yet even though there is no appeal in arbitration, awards can be set aside. The arbitral award is finalized only after the set-aside action is concluded, or the time for filing a lawsuit has expired. When we look at comparative law, it is observed that in France, Belgium, and Switzerland, the dissolution of companies is arbitrable. 5 11. CC, E. 2014/141, K. 2014/6951, 09.04.2014.