COMMUNIQUÉ SUR LES FRAIS D'ARBITRAGE EN TURQUIE

Communiqué sur les frais d'arbitrage en Turquie (08.03.2016)

A Communiqué About International Arbitration Fees (hereafter referred as “Communiqué”) was published in the official gazette number 29647 by the Ministry of Justice on the 8th of March 2016.

The Communiqué regulates the fees regarding all the works and proceedings the sole arbitrator or the arbitrator committee realised within the period between the opening and the final decision of the arbitration case[1]. The fees hereabove, are entitled once the functions of the arbitrator has ended.[2]

According to the Communiqué, which will come into force on the 15th of March 2016, the fee tariff of the arbitrators is listed as below[3] ;

Chart-1: The fee tariff of arbitrators (if the Arbitration has been executed by an arbitrator committee, the fee is shared between the arbitrators, in this regard the head of the committee is entitled to a share 10% higher than the other shares.[4])

The provisions of the Communiqué regarding the fees are only applicable under a certain amount of conditions numbered hereunder[5] ;

•  The fee should have not been decided between the parties and the arbitrator or the arbitrators’ committee,

• No provision shall be stated about the determination of the fee in the Arbitration Agreement between the parties,
• No mention shall be referring to customs or principles of an institutional arbitration in the Arbitration Agreement between the parties.

Otherwise the applicable fee will not be the fee stated in the Communiqué.

Furthermore, the fees described by the Communiqué are also not applicable when the arbitrating duty has not been fulfilled, or in case of the withdrawal of the arbitrator[6]. If the arbitrator is incompetent and decides of his/her incompetency concerning the case, the arbitrator is only paid ¼ of the fee[7].

In addition, if the claim petition is not given on time by the plaintiff or it is not given properly in consistence with the International Arbitration Code, the arbitrator may withdraw from the case leaning into these reasons. In such a situation the arbitrator is only paid ¼ of the fee.

In case the process ends because of reasons such as the agreement of the parties, a final decision, the withdrawal of the case by the plaintiff, the discretion of the sole arbitrator or arbitrators as the case is impossible or no more required, the rejection of the extension of the case by the tribunal or the deposit of the court expenses are not paid and it is required that in these cases an extra time should be granted, the total fee would be paid if such reason occurs after the extra time is granted while half of the total fee would be paid if such reason occurs before the extra time is granted[8].

The identical procedure is enforced in the case of devoid of essence or withdrawal of the lawsuit [9].

If the decision is only partial, the fee is determined according to the value of the targeted part. If the decision becomes a final judgment afterwards, the fee is applied fully[10].

Article 10/B of the International Arbitration Code states that, unless otherwise is agreed between the arbitrators and the parties, the arbitration award should be given within a year from the beginning of the process. Therefore, if the fee tariff, changes within the year mentioned here above, the fee that will be applicable is the fee which is in force when the award is given.

To summarize, the fee tariff that will be paid to arbitrators, the conditions and the exceptions of the appliance and the calculation are regulated and declared by the Communiqué on the 8th March 2016.

[1] Communiqué Article 2.

[2] Communiqué Article 8.

[3] Communiqué Article 11.

[4] Communiqué Article 3.

[5] Communiqué Article 1.

[6] Communiqué Article  4/1

[7] Communiqué Article 4/2

[8] Communiqué Article 4/3

[9] Communiqué Article 5

[10] Communiqué Article 6