NEWSLETTER-2020-metin

244 NEWSLETTER 2020 K 2 . In the decision, the Court focused on the difference in the word- ing of the first and second articles of Law No. 805, and stated that if one the parties is not Turkish, then it is not mandatory to use Turkish in the arbitration agreement. According to the Court, the mandatory use of Turkish for foreigners is regulated under Article 2, and the said article does not list “agreements” as opposed to Article 1. Therefore, a non-Turkish arbitration agreement is valid if one of the parties is foreign, thus the arbitration objection raised by the defendant is to be accepted by the court of first instance. The relevant part of the decision reads as follows: “On the other hand, the Claimant bases its argu - ments on Article 1 of Law No. 805 and claims that the arbitration agreement in a foreign language is invalid. Pursuant to Article 1 of Law No. 805, “All types of com - panies and enterprises of Turkish origin shall make all transactions, agreements, notifications, and keep records and ledgers within Turkey, in Turkish.” Pursuant to Article 2 of the said Law, for foreign companies and enterprises , this requirement is for notifications, transactions, and correspondence with Turkish companies, and documents and ledgers that are to be presented before state agencies. In the case at hand, as Article 1 of Law No. 805 is not applicable, the Claimant’s grounds for appeal that have not been brought before the court of first instance shall be rejected.” The Court adopted a pro-arbitration approach since the decision narrows the scope of application of a very old Law, which is not ap- propriate for arbitrations. Through this decision, the mandatory use of Turkish in arbitration agreements is limited for the cases in which both of the parties are Turkish. Although the approach is positive, whether the application of the Law is accurate remains disputed. The second article explicitly regulates that all “transactions” of which a foreign 2 For the text of the decision, please see. https://www.lexpera.com.tr/ictihat/bolge- adliye-mahkemesi/istanbul-bam12-hd-e-2020-19-k-2020-184-t-13-2-2020 (Ac- cess date: 06.04.2020). For the discussions on the decision, please see. Aküzüm, Dural : “Karar İncelemesi: 805 Sayılı Kanun & Tahkim Dilinin Türkçe Olması Zorunluluğu”. For the article please see. https://www.gedik.edu.tr/wp-content/ uploads/ural-akuzum-yazisi.pdf (Access date: 06.04.2020).