AŞAMALI TAHKİM ANLAŞMALARI

Abstract

Dispute resolution provisions stipulating the exhaustion of amicable settlement such as negotiation and/or ADR methods before resorting to arbitration proceedings or state courts are included in both investment and commercial arbitration. In investment arbitration, the host state courts may be stipulated previous or the final stage together with arbitration. When arbitration is envisaged as a final step, they are called as multi-tiered arbitration agreements in commercial arbitration and the pre-arbitration steps does not affect the validity of the arbitration agreement. However, important problems arise if the provisions containing these steps are not carefully drafted. It is of great importance to interpret parties’ intention whether the nature of steps is compulsory or voluntary. The evaluation regarding to the nature of dispute settlement methods affects the decision of the arbitral tribunal if the arbitration procedure is initiated without exhaustion of the previous steps. This may be a decision of lack of jurisdiction or a decision that the request for arbitration is inadmissible. Furthermore, after the arbitral award is rendered, not exhaustion of previous steps may lead to the setting aside of the arbitral award, and in the case of foreign arbitral award it may result in the rejection of its enforcement.