Turkish International Arbitration Law (“Turkish IAL”) empowers arbitrators to issue “precautionary injunctions” and “precautionary attachments”. These measures do not require to be “in respect of subject matter of the dispute”, which is in line with the Art 17 of the UNCITRAL Model Law.
“Preservation of evidence” is not included as one of the interim measures that may be issued by the arbitrators under the Turkish IAL. I am of the view that this is an error rather than a conscious preference of the Turkish lawmaker; thus, it must be accepted in Turkish international arbitration practice that the arbitrators have the power to issue interim measure for “preservation of evidence”.
However, such power does not extend to the issuance of interim measures, which binds third parties, and also interim measures which should be enforced by the state. In light of this principle, arbitrator’s powers on issuing “precautionary attachments” is highly criticised in Turkey; because a “precautionary attachment” cannot be enforced by a party voluntarily, but requires state’s intervention.
Turkish IAL is silent in respect of conditions to issue interim measures. In this respect, the conditions that are established in international arbitration practice should be taken into account. If it is accepted that arbitrators may issue a “precautionary attachment” in Turkey, then, the specific conditions set out in Turkish Code Enforcement and Bankruptcy should also be taken into account.
Turkish IAL provides parallel jurisdiction of the courts and arbitrators in respect of the issuance of interim measures. This provision does not stipulate any priority either to courts or to arbitrators.
Turkish IAL also provides that one of the parties may apply to the court for enforcement of interim measures issued by the arbitrators. In this connection, it should be possible for the courts to modify the interim measures issued by the arbitrators that are not eligible for enforcement under Turkish enforcement law. In principle, arbitrators and the courts should have a right to modify or revoke interim measures that they issued.
Turkish IAL is silent on ex parte (issued in the absence of the counter party) interim measures. Considering the approach taken in the UNCITRAL Model Law in this respect (i.e., “no ex parte interim measures; but ex parte preliminary orders”) it should not be accepted that ex parte interim measures can be issued by the arbitrators without a clear authorization within the Turkish IAL. On the other hand, in respect of lex feranda (future law), the Turkish IAL should be amended taking UNCITRAL Model Law as the basis in respect of ex parte interim measures/preliminary orders.
Publication Date:16 December 2016