NEWSLETTER-2020-metin

239 ARBITRATION LAW As well, Article 18/A(18) of Law No. 6325 regulates an exemp- tion from mandatory mediation provisions if there is an arbitration agreement between the parties. According to this Article, the provi- sions on mandatory mediations shall not apply if the dispute is to be resolved through arbitration or another alternative dispute resolution method. In practice, the courts have applied the above-mentioned provi- sions, and a number of commercial lawsuits have been rejected on procedural grounds at the very beginning of the proceedings, since the mandatory mediation procedures had not been completed. The Lack of Jurisdiction of State Courts in the Presence of an Arbitration Agreement Pursuant to Articles 116(c) and 413 of the Code on Civil Proce- dures (“CCP”), in the presence of an arbitration agreement, and unless it is rendered invalid, the respondent may present it as a preliminary objection, and the courts shall reject the claim on procedural grounds due to the arbitration agreement in place, at that stage. Therefore, in principle, if there is an arbitration agreement between the parties, the dispute cannot be referred to the state courts. On the other hand, it is controversial as to whether the courts should determine the validity of the arbitration agreement when an ac- tion is brought before the courts 1 . Some scholars argue that the courts should review the validity of the arbitration agreement, in detail, and render its decision at the end of such review. An opposing view ar- gues that upon an objection to arbitration, a court’s review should be limited to a prima facie review, it should reject the case, and leave the actual review of the validity of the arbitration agreement to the arbitral tribunal. The latter view is based on Article 422 of the CCP and Article 7(H) of the International Arbitration Act. Pursuant to those Articles, the arbitral tribunals have the capacity to decide as to their own juris- 1 Regarding these discussions, please see. Öztürk, Selen : “The Objection of Arbi - tration and the Courts’ Degree of Review of the Arbitration Agreement ” , Erdem & Erdem Newsletter, February 2014 http://www.erdem-erdem.av.tr/publications/ law-post/the-objection-of-arbitration-and-the-courts-degree-of-review-of-the- arbitration-agreement/ (Access date: 27.03.2020).