The prohibition of révision au fond in the context of the review of arbitral awards for compliance with the applicable substantive law

The present study examines the prohibition of révision au fond, which signifies the absolute prohibition of a court's substantive review of arbitration awards in annulment and enforcement proceedings, and it examines whether it is possible to review instances of violations of the applicable substantive law notwithstanding this prohibition. Conducted within the framework of Turkish law, this study also draws upon doctrines and judicial decisions from comparative law. The initial objective of this study is to establish the theoretical and philosophical foundations of the prohibition of révision au fond, a concept that has not been extensively examined in the context of Turkish law. To address this gap, the study examined the concept of révision au fond, the evolution of its review mechanism, and its subject matter. Accordingly, the concept of the prohibition of révision au fond arose in France in the context of reviewing the enforcement of foreign court decisions, and it prohibits a decision from being substantively reviewed. Once the nature of the prohibition of révision au fond has been explained, the general characteristics of annulment and enforcement proceedings concerning the review of arbitration awards by the court were examined. Accordingly, the review in these proceedings is conducted on the basis of grounds for annulment and obstacles to enforcement that are quite similar. These limited grounds relate primarily to procedural and formal matters and none of them allows for a review of the substance of the award. On the other hand, the principle of the prohibition of révision au fond has been accepted in the review of arbitration awards. From the perspective of the theoretical dimension of the prohibition of révision au fond, the study finally examines the reasons for accepting this prohibition in the review of arbitration awards. As a result of this examination, it was determined that the binding force and the res judicata effect – features that are intrinsically linked to the judicial character of arbitration awards – account for the prohibition of their substantive review. Furthermore, it was determined that, as a matter of state interest, there is no particular interest in an arbitration award in the event of an erroneous application of the law, and that annulment and enforcement review merely involves determining whether the arbitration award is "compatible" with the legal order of the forum state. Both findings substantiate the justification for prohibiting substantive review of arbitration awards. The study proceeded to examine the practical implications of the prohibition on révision au fond, as established in the theoretical foundations. In this section, the general features of the "control" system – adopted in annulment and enforcement proceedings in lieu of the "révision" system – were first analyzed. Within the framework of the control system, arbitration awards are subjected to review based on specific grounds, and the presence of these grounds is determined by a comprehensive evaluation of the award, obligatory in nature and pertinent to the review. However, it should be noted that this process does not enable the assessment of the accuracy of the award or the correct application of the law. To provide a more concrete illustration of the review process within the control system, an individual examination was conducted for each of the various review grounds. Following a thorough analysis of the control system, the study examined whether certain cases that could be considered violations of the applicable substantive law might be reviewed despite the prohibition of révision au fond, which precludes the review of the arbitrator's substantive legal assessment. It was concluded that if an arbitrator applies a law different from that intended by the parties, such a deviation constitutes an act of excess of authority, whereas if the parties have not made a choice of law and the arbitrator determines the applicable substantive law, this does not constitute a ground for annulment or an obstacle to enforcement. In instances of erroneous application of the law, as a general rule, no review shall be conducted pursuant to the prohibition of révision au fond. However, in exceptional cases, a deliberate error by the arbitrator in the application of the law is regarded as an excess of authority in some countries. Following this examination, the study analyzed the various approaches to the review of violations of the applicable substantive law in the context of reviewing arbitration awards. In this context, the situations in national legal systems that allow for substantive review were examined. Furthermore, the study examined the possibility of the parties expanding the scope of judicial review with regard to violations of the applicable substantive law in arbitration awards by agreement. It was concluded that it is not possible for the parties to agree to broaden the scope of judicial review of arbitration awards.