Arbitration Agreement By Reference

All of these problems can be avoided or, at the very least, minimized by carefully designed and elaborated dispute settlement rules, while paying particular attention when such provisions are incorporated by reference. Arbitration experts should be consulted when such dispute settlement rules are envisaged, in order to ensure that the parties have a valid and binding arbitration clause, which is in line with recent legal developments. There are controversial opinions in Turkish legislation and in the legal comparison on arbitration clauses that are incorporated by reference. This is particularly evident in cases where there is no specific reference, but only a general reference to the standard contract that contains the arbitration clause. According to one of these opinions, consent to arbitration proceedings is not considered explicit if there is no direct or specific reference[3] to the arbitration clause, but only a general reference to the standard agreement or the general terms and conditions of sale, including the arbitration clause[4]. In view of the fact that the parties waive their right to apply to national courts by signing the arbitration agreement, the approval of the arbitration should be certain. General references to model contracts contain only provisions relating to substantive law; It is therefore necessary to stress the need for an explicit reference to the arbitration clause. In international trade practice, explicit reference to an arbitration clause should not be mandatory in international trade practice[5]. With regard to the notion of “prudent trader”, it is clear that the reference to a given text makes that text part of the main agreement and that the agreement of the text means that the person who accepts the content of the documents as a whole.

In the Dubai Court of Cassation case in 2012 (Real Estate Appeal 153 of 2011, issued on 19 February 2012), the Tribunal explained under what conditions an arbitration clause could be inserted by reference. . . .