Assoc. Prof. Dr. Işık Önay (Koç University): Interpretation of the Scope of International Commercial Arbitration Agreements: A Comparison of Swiss and Turkish Case Law

About the Speaker:
Işık Önay is an associate professor of civil law, currently working as an assistant professor at Koç University Law School, Istanbul. He holds an LLB from Koç University and obtained an LLM degree from Queen Mary University of London with this thesis titled "Regulating Webcasting" and a PhD from Istanbul University with this thesis "Novation". He became an associate professor of civil law with the monograph "The Concepts of Surrogate Benefit and Surrogation in Civil Law". Işık Önay is the coordinator for the LLM program in Private Law at Koç University and a board member of Nüsret – Semahat Arsel International Business Law Implementation and Research Center (NASAMER). He is a member of international institutions such as European Law Institute (ELI), Freunde des Hamburger Max-Planck-Inst. für ausländisches und internationales Privatrecht e.V. and Jean Monnet Scholars Association. His research focuses on contract law, tort law, inheritance law, family law and property law.

About the Topic:

Determining the extent to which parties have agreed to submit their disputes to arbitration is a matter of contract interpretation. It is very rare that an international arbitration convention or national legislation on international arbitration provides specific rules pertaining to interpretation of the scope of arbitration agreements. Therefore, general rules of contract interpretation are usually used as a starting point to construe the scope of international commercial arbitration agreements. Developing specific principles for interpretation is left to courts and arbitral tribunals. This paper focuses on the practice of courts regarding this matter in two countries, i.e., Switzerland and Turkey. The paper firstly provides an overview of the general principles adopted by the courts in the two countries. Then case law in both countries is compared and contrasted with regard to selected scenarios frequently occurring in practice. The comparison of case law reveals how courts’ differing approaches to arbitration can make a difference in practice, even where very similar rules are applied. The comparison confirms the reputation of Swiss courts for adopting a pro-arbitration approach. Turkish courts, on the other hand, seem to be more reluctant in construing the scope of international commercial arbitration agreements broadly. This paper argues that the current practice in Turkey does not reflect the legislator’s intent and courts should change their practice and adopt a more liberal approach in line with contemporary trends in international commercial arbitration practice.

About the Seminar Series:

The seminar series “Current Research on Turkish Law” regularly invites outstanding scholars and practitioners working on different topics of Turkish private law to present and discuss their findings. The seminar series particularly aims to create a platform where both international researchers interested in Turkish law and Turkish researchers working on comparative law can come together and exchange scholarly ideas.

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