NEWSLETTER-2020-metin

246 NEWSLETTER 2020 is invalid. In this case, the decision of the court of first instance shall be reversed since the arbitration objection should have been rejected, and the proceedings should have resumed.” In this decision, a couple of important points on arbitration agree- ments should be highlighted. Firstly, the court accepts that an arbitra- tion agreement should be incorporated by reference to the charter party in the bill of lading 5 . Then, it is stated that the insurer is also bound by the arbitration agreement, by way of succession 6 . According to the court, there is no doubt as to the mandatory nature of the use of Turkish for the arbitration agreement, pursuant to Article 1 of Law No. 805. Secondly, the court sees the sanction under Article 4 of Law No. 805 as invalidity, which reads, “Shall be disregarded to the advantage of the relying party.” The abovementioned points were already established in the previ- ous decisions of the Turkish courts. However, a couple of points in the decision entails new discussions on this issue. Firstly, the court states that the mandatory use of Turkish would apply to the arbitration agreements incorporated by way of reference. Accordingly, Turkish should be used in the text that contains the arbitration agreement. As seen in the decision, the focus was on the language of the charter party, not on the language of the bill of lading. When it is considered that English is generally used in standard charter parties, then the risk of invalidity for all marine transportation agree- ments between two Turkish parties arises. The last point to be examined in the decision is the parties that are regarded for the application of Law No. 805. The court considered the parties of the arbitration agreement as the parties who were the initial parties to the charter party, but not the insurer who became a party 5 Işık, Fatih : “Arbitration Clauses Incorporated by Reference”, Erdem & Erdem Newsletter, June, 2015. http://www.erdem-erdem.av.tr/publications/law-post/ arbitration-clauses-incorporated-by-reference/ (Access Date: 06.04.2020) 6 Öner, Duygu : “Extension of the Arbitration Agreement to the Insurer in terms of Subrogation”, Erdem & Erdem Newsletter, July, 2018. http://www.erdem -erdem. av.tr/publications/newsletter/extension-of-the-arbitration-agreement-to-the-in- surer-in-terms-of-subrogation/ (Access Date: 06.04.2020)