NEWSLETTER-2019-metin

175 ARBITRATION LAW have opted out from all possible remedies that states offer under their jurisdictional powers? There is no explicit provision under Law No. 2004, former Code of Civil Procedure, Code of Civil Procedure in effect, and International Arbitration Act (“IAA”) as to how an arbitration agreement might af- fect the execution proceedings, particularly an execution proceeding without judgment, which is a proceeding exclusive to the Turkish and Swiss legal systems 2 . There is also no unified opinion amongst schol- ars and chambers of the Court of Cassation. The scholars who suggest that arbitral tribunals are not entitled to hear an action for annulment of objection base their opinions on the following: • Action for annulment of objection is a declaratory judgment 3 concerning enforcement law, and its purpose is to solely repeal the objection and continue with the execution pro- ceedings. Therefore, this action cannot be heard before an arbitral tribunal. • It is not logical to assume that the arbitrators can render final decisions, which are binding on the execution offices, where it is explicitly stipulated under Article 6/2 of the IAA that the arbitrators cannot bind the execution offices with their provisional attachment decisions 4 . • When the parties agree upon resolving their disputes before an arbitral tribunal by excluding the state involving, it should not just exclude the courts, but should exclude state’s judicial organization in general. Execution offices are also part of the state’s judicial organization and thus, initiating an execution 2 Yılmaz , Ejder: Tahkimde İtirazın İptali Davası ve Tahkime Elverişlilik Kuralı, p. 540, referring to Kuru, Baki : Hukuk Muhakemeleri Usulü, V. 6, Istanbul 2001, p. 5981, fn. 91. 3 Çağa , Tahir : Ödeme Emrine İtirazın İptaline Dair, Batider 1976/VIII/3, p. 21-31; Muşul, Timuçin : İcra ve İflas Hukuku Esasları, 5. ed., Ankara 2015, p. 254. 4 Yeşilırmak, Ali : Geçerli Bir Tahkim Anlaşmasının Varlığına Rağmen Genel Haciz Yoluyla Takip Yapılabilir mi? , Türkiye Barolar Birliği Dergisi, 2011 (96), p. 219.