Réglemement des litiges découlant des contrats financiers par arbitrage

The subject matter of financial contracts involves transactions carried out within financial markets. Disputes arising from financial transactions, which are frequently employed in contemporary practice, are resolved in various forums depending on the nature of the transaction. In this context, there has been a notable increase in the importance attached to financial arbitration, one of the alternative dispute resolution methods, as well as the number of applications. Financial arbitration is a distinct branch of arbitration with its own specific characteristics and needs, akin to construction arbitration, investment arbitration, sports arbitration, and insurance arbitration. The aim of this study is to ascertain the arbitrability of financial disputes and the necessity for financial arbitration under Turkish law. Furthermore, taking into account the unique features of this area, it aims to propose recommendations for the institutionalization of financial arbitration within the framework of Turkish law. In order to determine the characteristics of financial arbitration, which is necessary within the Turkish legal system, the nature of financial transactions was first examined. The financial transactions most commonly encountered in practice include bank loan agreements, syndication agreements, letters of credit, letters of guarantee, project finance agreements, securities, derivatives, and investment contracts. The common characteristics of these financial transactions are that they intersect multiple branches of law, occasionally engage regulations that transcend national boundaries, hold economic value, and are flexible, dynamic, confidential, and require specialized expertise. The procedural flexibility within arbitration, the parties' right to select the applicable substantive law, the impartial and expedited resolution of disputes by experts, and the finality and enforceability of arbitral awards form the hallmarks of financial arbitration, which were deduced from the characteristics of financial transactions. Moreover, it is significant that arbitrators have the authority to grant interim measures under certain conditions, that multi- party proceedings are feasible, that confidentiality is maintained throughout the proceedings, and that costs are kept to a minimum. In comparative law, arbitration institutions and rules specific to consumer financial arbitration exist. Institutions such as FINRA in the United States, FIN-NET within the European Union, and the FDRC in Hong Kong are examples of mandatory consumer financial arbitration bodies. Additionally, institutional arbitration centers such as SIAC, HKIAC, and CIETAC, though not exclusively consumer-focused, have specific rules for financial arbitration. P.R.I.M.E is an international arbitration institution dedicated exclusively to financial arbitration. Common features of these arbitration proceedings include expeditious timelines, the goal of effective dispute resolution, the binding and final nature of arbitral awards for the parties, and the aim of establishing financial jurisprudence. In Turkish law, various mechanisms exist for the resolution of disputes arising from financial transactions. These mechanisms are classified separately for money market and capital market transactions. Concerning money market transactions, the authorities to which applications can be made under Turkish law include the consumer relations coordination officer, the individual customer arbitration committee, consumer arbitration committees, mediation, and the courts. For capital market transactions, forums include the Board of Directors of the Stock Exchange, arbitration before the Turkish Capital Markets Association, consumer arbitration committees, mediation, or courts. The criteria for applying to these forums vary based on the transaction's amount, nature, and the parties involved. The alternative dispute resolution methods for financial disputes in Turkish law predominantly involve administrative procedures. Moreover, these methods do not result in final and binding decisions, which fails to address the needs of practice adequately. Therefore, these mechanisms cannot be deemed arbitration proceedings in the true sense. The lack of alternative dispute resolution mechanisms for financial disputes and the insufficiency in protecting financial consumers has been highlighted in the Tenth, Eleventh, and Twelfth Development Plans, as well as the Medium- Long Term Program 2024-26. Since arbitration constitutes a legal procedure, the arbitrability of remedies under Turkish enforcement and bankruptcy law is of particular significance. In this regard, the arbitrability of the following matters has been examined: the claim for enforcement by general attachment, the action for the annulment of objection, the action for the removal of objection, the action for release from debt, the action for a negative declaratory judgment, the restitution action, enforcement of bankruptcy, bankruptcy lawsuits, and the action for objection to the order of ranking. Remedies that lie outside the domain of pure enforcement and bankruptcy law are deemed arbitrable under Turkish law. In loan agreements, which form the subject matter of this study, financial parties exhibit a reserved approach to arbitration for several reasons. These reasons include the belief that confidentiality is less critical in loan agreements than in other types of transactions, trust in the expertise of English and New York courts, the characterization of loan agreements as straightforward transactions, and the ease of liquidating loan securities, all of which encourage the preference for judicial resolution. However, many of these views no longer hold valid today. Where financial contracts are subject to arbitration, the extension of the arbitration agreement to third parties becomes a pertinent issue, as discussed in comparative law and Turkish legal doctrine. Under certain conditions, the extension of an arbitration agreement to third parties is possible under Turkish law. Syndication agreements, project finance agreements, and letters of credit often involve multi-party proceedings. The fact that arbitration agreements bind only the parties thereto gives rise to complications in multi-party disputes in arbitration. Under certain conditions, it is possible to resolve multiple interconnected disputes within a single arbitration proceeding. The determination of the right to pursue arbitration in the event of the assignment of a letter of guarantee is a subject of debate within legal doctrine. If the assignment carries the intention to arbitrate, the right of the assignee to initiate arbitration remains intact. Furthermore, in the case of letters of guarantee, the role of interim measures, which are frequently encountered in practice, has been examined. Although arbitrators possess the authority to issue interim measures, they lack the power to issue binding decisions against non-signatories to the arbitration agreement, such as respondents or banks. In comparative law, the arbitrability of securities in capital market transactions was historically not recognized for extended periods due to certain considerations. However, this stance has shifted in recent times, driven by the evolving needs of the parties and the growing complexity of financial transactions. Securities transactions are now deemed arbitrable both internationally and within Turkish law. As a general rule, money market and capital market transactions are considered arbitrable under Turkish law. Remedies available under Turkish enforcement and bankruptcy law may also be submitted to arbitration, subject to certain exceptions. Nevertheless, an effective financial arbitration framework is yet to be established under Turkish law. The dispute resolution mechanisms for money market and capital market disputes in Turkish law are intricate, optional, and underutilized. In order to foster the recourse of financial parties to arbitration, it would be prudent to conduct arbitration proceedings under a unified framework and to vest authority in the Istanbul Arbitration Centre (ISTAC), a neutral, independent, specialized, and institutional arbitration body. The structuring of financial arbitration under the umbrella of a specialized institution is crucial for facilitating access to arbitration, ensuring the efficiency of proceedings, and fostering the development of financial jurisprudence. In Turkish law, the information asymmetry inherent in financial consumer transactions necessitates the protection of consumers, which may be realized through mandatory arbitration. Under the Consumer Protection Law and the Regulation on Unfair Terms in Consumer Contracts, the consumer's recourse to an arbitrator, as prescribed by legal regulations, is recognized within the legislative framework. The arbitrator designated within the legislation or legal provisions is the institutional arbitration center, namely the Istanbul Arbitration Centre (ISTAC). It would be appropriate to grant ISTAC authority in this regard, consistent with the legislator's intent. In non-consumer arbitration settings, it would be advisable for ISTAC to develop specific rules for financial arbitration, wherein expedited proceedings should be envisaged, akin to the fast-track arbitration procedure. Moreover, the expertise required for financial arbitration could be secured by selecting arbitrators from a specialized panel, which ISTAC would maintain. The overarching objectives should include confidentiality, cost-effectiveness, procedural efficiency, and the creation of financial jurisprudence. Additionally, the rules should explicitly provide for multi-party proceedings and authorize arbitrators to issue summary awards, ex parte decisions, and interim measures.