Arbitration of Corporate Law Disputes in Joint Stock Companies under Turkish Law: A Comparative Analysis
European Company and Financial Law Review 4/2019
34 Pages Posted: 3 Nov 2018 Last revised: 25 Jun 2019
Date Written: September 27, 2018
This study addresses the arbitrability of corporate law disputes and the validity of arbitration clauses stipulated in the articles of association (AoA) of joint stock companies, and compares Turkish law with German and Swiss jurisdictions in particular. While corporate law disputes are considered arbitrable, disputes concerning invalidity of corporate decisions and actions for dissolution are heavily debated. The paper argues that both types of disputes are arbitrable, albeit judicial dissolution requests accommodate practical hurdles. It is also argued that arbitral awards should be granted the erga omnes effect, as long as the interested third parties are provided with the necessary procedural protection. Furthermore, arbitration clauses can be validly stipulated in the AoA of privately held joint stock companies. However, the binding effect of the arbitration clause in question depends on its legal nature, namely, korporative or formell. Addressing this issue, the paper proposes to adopt a two-step test. Finally, it suggests practicable legislative recommendations and a model arbitration clause in order to enable and facilitate arbitration in corporate law disputes.
Keywords: Intra-Corporate Disputes, Arbitration, Arbitration of Corporate Disputes, Articles of Association, Comparative Law
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