NEWSLETTER-2020-metin

245 ARBITRATION LAW company is party to shall be made in Turkish. As there is no doubt that an agreement is also a “transaction,” it could be argued that such exclusion of arbitration agreements from the scope of Article 2 is con- trary to the Law 3 . Is the Mandatory Use of Turkish Applicable when the Arbitration Agreement is Incorporated by Reference? To Which Parties and to Which Texts is this Applicable? The second decision of the Court is dated 13.02.2020 and num- bered 2019/2389 E. and 2020/189 K 4 . The ruling reads as follows: “It is stated in the bill of lading dated 04.11.2017 that the freight shall be paid pursuant to the charter party da- ted 19.10.2017, and numbered 056. It is acknowledged by the respondent that the charter party dated 19.10.2017 is signed between the respondent and the insured. In the said charter party it states by reference that in the case of a ge - neral average, arbitration proceedings, seated in Niğde, shall be initiated and … the rules shall be applied. Pursu - ant to the theory of succession, an arbitration agreement agreed by the insured shall be binding upon the insurer , as well. However, both parties of the charter party are companies of Turkish origin. Pursuant to Article 1 of Law No. 805, “All types of companies and enterprises having Turkish origin, shall make all transactions, agreements, notifications, and keep records and ledgers within Turkey, in Turkish.” The use of Turkish in the agreements made in Turkey by Turkish companies is mandatory pursuant to Article 1 of Law No. 805, and the agreements that are in breach of the said Article are invalid, pursuant to Article 4 of the said law. Accordingly, for the arbitration provisions of the re-referred standard charter party to be applicable, there should be a valid reference. Although, both parties of the charter party dated 19.10.2017 are of Turkish origin, the charter party was not issued in Turkish and thus, it 3 Aküzüm , p. 3-4. 4 For the text of the decision, please see. https://www.lexpera.com.tr/ictihat/bolge- adliye-mahkemesi/istanbul-bam12-hd-e-2019-2389-k-2020-189-t-13-2-2020 (Access Date: 06.04.2020).