Arbitrator agreement in accordance with Code of Civil Procedure

Arbitration is the most important alternative dispute resolution method that is similar to the court proceedings. Arbitration is an alternative dispute resolution method that enables existing or future disputes between the parties to be solved through independent and expert persons that are determined by the will of the parties. In comparison to state courts, arbitration proceedings, which allows the settlement of disputes with less time and expense, have become even more important, especially with the increase of international trade. Arbitration proceedings, which have existed in different country regulations and practices for many years, have only been regulated in our country in the International Arbitration Act no. 4686 adopted in the year 2001 and in the Code of Civil Procedure no. 6100. Arbitration, as it is a judicial activity, is essentially the subject of procedural law. As a matter of fact, the arbitration in our country's doctrine is generally evaluated in procedural law and has little place in the field of substantive- law. However, in the arbitration process that begins with the selection of the arbitrators responsible for the execution of the proceedings, the legal relationship between the parties applying for arbitration and the arbitrators is directly a matter of substantive law. This legal relationship is determined by an independent contract, subject to the rules of private law. This contract is called the arbitrator agreement. Accordingly, arbitration law includes an arbitration agreement as well as an arbitrator agreement. The arbitrator agreement is closely related to but independent from the arbitration agreement and proceedings. By the consensus in the doctrine, it is accepted that the arbitrator agreement is a contract with separate provisions and consequences. With the arbitration agreement, the parties agree to settle any disputes between themselves that are present or may arise in the future through arbitrators. However, with the beginning of the situation which obliges the parties to apply to arbitration, the arbitrator agreement, which will be established between the parties and the arbitrators, becomes initiated. In practice, there is generally no written agreement between the parties applying to the arbitration proceedings and the arbitrators. Issues such as the duties of the arbitrators, the salaries they will be entitled to, and their powers are determined by the certificate of incumbency issued in the legislation. However, the rights and obligations as well as the responsibilities of the parties and the arbitrators are regulated neither in the arbitration agreement nor in the certificate of incumbency. In order to determine such matters clearly and with the free will of the parties, an arbitrator agreement is required. Arbitrator agreement is an important legal issue, which is just as important as the arbitration agreement, its proceedings and the relevant rules of procedure. In spite this, it has been subject to very few studies within the doctrine. The purpose of this study is to examine in detail the arbitrator agreement in which the legal relationship between the parties of the arbitration agreement and the arbitrator or arbitrators tasked with conducting the proceedings. Due to the scope of arbitration law being very broad, especially in the scope of international arbitration and institutional arbitration, this study has been limited to Code of Civil Procedure no. 6100 and the provisions of ad-hoc arbitration and the arbitrator agreement were examined mainly within the scope of national arbitration. However, institutional arbitration and international arbitration have been mentioned from time to time in parallel with the International Arbitration Law and within the framework of the rules of the international arbitration institutions. For this purpose, within the scope of national law, firstly the definition and elements of the arbitrator agreement and the determination of its place in the substantive law have been explained. The legal nature of the arbitrator agreement is controversial as it is not explicitly regulated in procedural or substantive law. In this context, with the acceptance of the opinion that the arbitrator agreement is a private law contract subject to substantive law, the legal nature of the agreement within the framework of law of obligations and its relationship with other contracts were examined. Afterwards, in parallel with the parties of the arbitrator agreement and the regulations of the procedural law, the establishment of the agreement and the selection of the arbitrator or arbitral tribunal were discussed. In the next part of our study, the mutual obligations and rights of the parties to the arbitration agreement (the parties to the dispute) and the selected arbitrator or members of the arbitral tribunal were examined. Finally, issues such as the termination of the arbitrator agreement, the legal liability of the arbitrators and the recusation of arbitrators were examined. As a result of all these investigations, the arbitrator agreement between the parties to the dispute and the arbitrators was evaluated, from its establishment and until its termination, under national substantive law.