In judicial proceedings, parties prefer arbitration because it is often faster than state courts. However, arbitration proceedings also require a certain period of time to reach a final arbitral decision. During this period, interim protection measures are needed to ensure that the proceedings achieve the desired goal and to guarantee the rights to be obtained as a result of the proceedings. In case of the protection of monetary receivables, a precautionary attachment is decided, and in case of the protection of rights other than money, a precautionary injunction is decided.
Pursuant to Article 414 of the Code of Civil Procedure (CCP) applicable to national arbitration, unless otherwise agreed, during the arbitration proceedings, the arbitrator or the arbitral tribunal may, at the request of a party, determine an interim injunction. The same regulation on the authority of arbitrators to decide on interim injunctions provision is made in Article 6 of the International Arbitration Law (IAA) applicable to disputes involving a foreign factor.
However, there are significant differences between the ICC and the CCP as to whether an interim protection order can be requested from state courts in cases where there is an arbitration agreement. The CCP significantly limits the power of state courts to issue interim protection decisions.
While the ICC does not authorize arbitrators to amend or cancel an injunction granted by the court, Article 414(5) of the CCP provides that the injunctions decided by the state courts may be amended or canceled by the arbitrator or arbitral tribunal.
The Supreme Court Decided That The Interim Injunction Decided By The Turkish Courts Before The Commencement Of The Arbitration Proceedings Under The International Arbitration Law Can Be Cancelled By The Court After The Commencement Of The Arbitration Proceedings
Pursuant to Article 6 of the International Arbitration Law (IAA), whether or not the seat of arbitration is in Turkey, the parties may obtain an interim injunction from Turkish courts. After the arbitral tribunal is appointed, should the amendment or cancellation of the injunction be requested from the arbitral tribunal or from the Turkish court that decided the injunction? In other words, can an interim injunction decision from a Turkish court be amended or cancelled by the arbitral tribunal?
Article 6 of the IAA does not include this issue. In national arbitrations not regulated by the IAA, pursuant to Article 414(5) of the Code of Civil Procedure (CCP), an injunction obtained from the court may be amended or cancelled by the arbitral tribunal once the arbitral tribunal has been appointed. In 2017, the Istanbul 15th Regional Court of Justice decided that an injunction decided by the Turkish courts can be cancelled by the arbitral tribunal in arbitrations under the IAA. The Istanbul 45th Regional Court of Justice decided in 2021 that Article 414(5) of the CCP cannot be applied by way of analogy to arbitrations under the IAA and that the injunction decided by the Turkish courts cannot be amended or cancelled by the arbitral tribunal.
The difference in jurisprudence between the decisions of the Istanbul 15th and 45 Regional Courts of Justice was resolved by the 6th Civil Chamber of the Supreme Court.
The Supreme Court stated in its decision that the regulation on interim legal protection measures for disputes subject to international arbitration is regulated in Article 6 of the IAA, and for disputes subject to national arbitration, it is regulated in detail in Article 414 of the CCP, but there are significant differences between these regulations. According to the Supreme Court, while Article 414 of the CCP authorizes the arbitral tribunal to amend and cancel the interim legal protection measures decided by the courts, the fact that the IAA does not include this authority for arbitrators and that no law amendment to the IAA following the CCP shows that the legislator has made a conscious choice. When the letter of Article 6 of the IAA and the reasoning of the Article are evaluated together, it is understood that the arbitral tribunal does not have the authority to amend or cancel the injunction decided by the court. In this regard, it does not matter whether the interim injunction is decided before or after the arbitration proceedings commence.
As a result of all these reasons, the 6th Civil Chamber of the Supreme Court decided that, despite the existence of an arbitration agreement, an interim injunction may be requested from the Turkish courts in relation to a dispute involving a foreign factor, as well as the objection to the interim injunction decisions decided by the Turkish courts may be decided by the Turkish courts.
By Cemile Demir Gökyayla, Partner, Beyza Sila Sürmeli, Trainee, KP Law
