Browsing by Subject "Arbitration"
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Item Open Access Arbitrability of competition disputes(Bilkent University, 2018-04) Bolatoğlu, HilmiToday, arbitration is seen as a neutral and effective solution to disputes in the rapidly expanding international trade and is favored much more than national courts. The fact that the fast-growing world trade has brought competitive economies to forefront, causes the countries that want greater share from international trade attach greater value to the competition law. Since both the arbitration and the competition law are rapidly developing in the globalizing world, an inevitable common playground for international trade has emerged. This study focuses particularly on the arbitrability of competition disputes, in correlation of competition law and arbitration law. Starting with the non-arbitrability doctrine, the first section discusses the general legal framework for the concept of arbitrability. In the second section, arbitrability of competition disputes is analyzed in terms of comparative law. Third section focuses mainly on the Turkish Law. Legal provisions that regulate arbitrability in Turkish law are interpreted and relevant judicial decisions are examined chronologically. Fourth section deals with the procedural and substantial problems of determining arbitrability of competition disputes in arbitral and judicial proceedings. In this way, the theoretical and practical framework concerning the arbitrability of competition disputes in Turkey will be tried to be established in our work by utilising the comparative law.Item Open Access Civil liability of the arbitrators(Bilkent University, 2018-01) Konuralp, Orhan EmreThis study examines the legal basis, scope and consequences of the civil liability of arbitrators, who constitute one of the essential elements of arbitration, which is a frequent dispute resolution method. For this purpose, the legal basis of the relationship between the arbitrators and the parties to the dispute is first examined. Later on, the legal nature of the arbitration agreement, which constitutes the basis of the contractual relationship, is examined and the rights and obligations of the parties arising from this contract were handled separately. Finally, it is discussed how the arbitrators' civil liability is covered by law and whether these regulations are restrictive. In addition, the civil liability of the arbitrators is compared with the civil liability of the judges and it is asked whether the arbitrators have an immunity from civil liability. The criminal liability of arbitrators is also taken into consideration, as far as it is related with civil liability.Item Open Access Hakemlerin sır saklama yükümlülüğünün suçu bildirmeme suçu ile ilişkisi*(Legal Yayıncılık A.Ş, 2017) Konuralp, Orhan EmreTahkimin temel prensiplerinden biri olan gizlilik ilkesinin bazı istisnaları bulunmaktadır. Bu çalışmada, hakemlerin tahkim faaliyeti kapsamında bir suçu öğrenmeleri hâlinde, bu suçu yetkili makamlara bildirme yükümlülüklerinin olup olmadığı incelenecektir. Bu kapsamda sır saklama yükümlülüğünün hukukî temeli ve hakemlerin kamu görevlisi niteliği ele alınmaya çalışılacaktır.Item Open Access Implementing equal division with an ultimatum threat(Springer, 2014) Cetemen, E. D.; Karagözoğlu, E.We modify the payment rule of the standard divide the dollar (DD) game by introducing a second stage and thereby resolve the multiplicity problem and implement equal division of the dollar in equilibrium. In the standard DD game, if the sum of players' demands is less than or equal to a dollar, each player receives what he demanded; if the sum of demands is greater than a dollar, all players receive zero. We modify this second part, which involves a harsh punishment. In the modified game , if the demands are incompatible, then players have one more chance. In particular, they play an ultimatum game to avoid the excess. In the two-player version of this game, there is a unique subgame perfect Nash equilibrium in which players demand (and receive) an equal share of the dollar. We also provide an -player extension of our mechanism. Finally, the mechanism we propose eliminates not only all pure strategy equilibria involving unequal divisions of the dollar, but also all equilibria where players mix over different demands in the first stage.Item Open Access International commercial arbitration as an alternative dispute solving mechanism and its role in the Turkish judiciary system(Bilkent University, 2006) Öncel, SinanGlobalization has been leading to enormous changes in the world order and economy. Global market economy needs a legal system to define and protect the rights of both national and international investors against unjust competition and jurisdiction.As one of the main pillar of globalization, free movement of capital and security of capital is vital for the international investors. Legal aspect of securitization of capital is very significant especially when a dispute arise between foreign investors and state due to mistrust to local courts and complexity of the legal system. Hence, international commercial arbitration became an alternative dispute settlement mechanism. In this study, after introducing milestones for the development of international commercial arbitration in 20th century, main features and international arbitration institutions and their rules are focused to demonstrate international structure and arbitration models. On the basis of international dimension of the issue, the role and function of international commercial arbitration in Turkish Judiciary System is elaborated through focusing on Constitutional amendments, laws and legal interpretations. While concentrating on Turkish legal system, concession agreements will mainly stressed through some cases. In this study, concept of public interest and debate on “foreign element” are also covered.Item Open Access Setting aside arbitral awards for contradicting public policy according to the Turkish international arbitration act(Walter de Gruyter GmbH, 2021-06-28) Bayata Canyas, AslıThis study analyses the setting aside of arbitral awards for contradicting public policy according to the Turkish International Arbitration Act. In a setting aside action, the arbitral award is not scrutinized on its merits; rather, only certain grounds are taken into consideration. One ground that judges evaluate on their own motion is being against public policy. We believe that a more international public policy understanding that is in harmony with the needs and requirements of international arbitration should be adopted.Item Open Access Use of AI-based technologies in ınternational commercial arbitration(Queen's University Belfast * School of Law, 2021-06-30) Bayraktaroğlu-Özçelik, Gülüm; Özçelik, BarışThis paper deals with the involvement of Artificial Intelligence (AI) based technologies in international commercial arbitration. Specifically, this concerns both their assistance in the arbitral processes and the challenging question of replacement of human arbitrators with AI-arbitrators. Regarding the second question, the current normative framework on international commercial arbitration, notably the provisions of UNCITRAL Model Law on International Commercial Arbitration and the New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Awards on the requirements as to arbitrators, the arbitral tribunal and public policy (ordre public) is analysed. It is submitted that depending on the law of the requested State, public policy may act as an important ground to reject the recognition or enforcement of the arbitral award if given by AI-arbitrators with differing reasons. For instance, the award is not given by natural persons, or it may be that the impartiality and independence of AI-arbitrators is questioned because of data-drivenness of AI, or that the arbitral award lacks sufficient reasoning. It can be argued that even where it is accepted that other provisions of the New York Convention can be interpreted, and possibly be enlarged, to allow the use of AI technologies, public policy requirements might still act as an important barrier for the recognition and enforcement of arbitral awards given by AI-arbitrators. Although future relationship of AI and international commercial arbitration is not known, we believe that if assistance of AI to judicial processes in general, and to arbitral process in particular, proves to contribute by lessening the workload, which would speed up the legal process, minimizing the costs and the risks of human mind efficiently. As a result, this could establish a demand for a new regulatory framework for AI-arbitrators to replace human arbitrators. An important consideration in this regard would be the willingness of the parties to include AI systems in the resolution of their dispute by arbitration. At that point in time the question shall arise on whether this can be achieved by the amendment of the current instruments or their replacement with new ones. We believe that UNCITRAL Model Law may be amended to adjust itself to new technologies, as was the case in 2006 to conform the practices of international trade. The New York Convention is resistant to change, proposing any such amendment may not be a realistic option. Alternatively, the adoption of soft-law instruments (such as UNCITRAL recommendations on the application of the New York Convention or amendments on the UNCITRAL Secretariat Guide on the Convention) may rather be preferred to adjust the Convention to the use of new technologies.