Arbitrability in terms of the Code of Civil Procedure

Arbitration is a trial that has been applied from the past to the present. However, not every dispute can be resolved by arbitration. In order for a dispute to be resolved through arbitration, that dispute must be arbitrable. There are regulations on arbitrability in our country, in foreign legal systems, in international arbitration. The regulation in internal arbitration regarding this is Article 408 of the HMK. According to this article, disputes arising from rights in rem in immovables and disputes that are not within the parties' disposal are not arbitrable. In addition, in line with the doctrine and the opinions of the Supreme Court, violation of public order is also accepted as an obstacle to arbitrability. This situation narrows the scope of disputes that can be resolved through arbitration. Therefore, it is necessary to make a distinction between public order and arbitrability. On the other hand, the fact that a dispute is suitable for mediation but not arbitration is an issue that needs to be focused on. At various stages of the proceedings, it is controversial whether the non-arbitrability will be taken into account ex officio or brought forward by the parties in the court or the arbitrator. On the other hand, different opinions have also been put forward on how the court or arbitrators will conduct the non-arbitrability examination.