Arbitrability Objections in Enforcing Foreign Arbitral Awards in Turkiye

A Turkish court can refuse to enforce a foreign arbitral award if the dispute it resolves is not capable of settlement by arbitration under Turkish law, regardless of whether arbitration was valid and available under the law governing the arbitration agreement itself. This objection can be raised by the court on its own motion and does not depend on the debtor proving any procedural defect in the arbitration.

Arbitrability concerns which categories of disputes a legal system permits to be resolved through arbitration rather than through its own courts. Even where two parties validly agreed to arbitrate and the arbitration proceeded correctly, Türkiye can still decline to give effect to the resulting award if the subject matter is one that Turkish law reserves exclusively to litigation, most commonly matters considered to touch the public interest or matters over which parties cannot freely dispose of their rights.

Article V(2)(a) of the New York Convention allows the competent authority of the country where enforcement is sought to refuse enforcement if the subject matter of the dispute is not capable of settlement by arbitration under the law of that country. Articles 60 to 63 of Law No. 5718 on Private International Law and International Civil Procedure (MOHUK), which govern recognition and enforcement of foreign arbitral awards in Türkiye, incorporate this same principle, allowing Turkish courts to examine arbitrability as part of their review, independent of any objection raised by the parties.

Turkish courts examining arbitrability generally focus on whether the dispute concerns rights the parties could have freely settled between themselves, a standard long used in Turkish arbitration law more broadly. Ordinary commercial and contractual disputes between private parties are routinely treated as arbitrable, while certain matters connected to real property registration, matters involving mandatory regulatory oversight, or disputes considered to affect the public interest have been treated more cautiously.

There is ongoing debate in Turkish legal literature about the precise boundary of non-arbitrable matters, particularly as commercial disputes increasingly touch on regulated sectors or involve state-related counterparties. Some commentators argue for a narrow reading of non-arbitrability limited to matters genuinely outside private disposition, while others caution that Turkish courts should retain flexibility to protect matters of clear public interest from being resolved outside the domestic court system.

A debtor raising an arbitrability objection should identify precisely why the underlying dispute falls outside the category of matters the parties could freely settle between themselves under Turkish law, rather than making a general assertion that arbitration was inappropriate. Because the court can also consider this issue independently, claimants should anticipate and address arbitrability in their enforcement petition, particularly in sectors with any regulatory dimension.

The objection is raised within the enforcement proceedings themselves, following the general procedural deadlines for submitting a defence under Turkish civil procedure, though because a Turkish court can consider arbitrability on its own initiative, it may also be examined even without a formal objection from the debtor.

The competent Turkish civil court of first instance handling the enforcement action for the foreign arbitral award examines arbitrability as part of its review of the statutory grounds for refusal under the New York Convention framework as applied through Turkish law.

Relevant material includes the arbitration agreement, the award itself, documentation describing the nature of the underlying dispute, and, where relevant, evidence or legal argument addressing why the subject matter is or is not one the parties could freely dispose of under Turkish law.

Parties sometimes assume that because arbitration was valid and enforceable where it took place, Türkiye must automatically recognise the result; arbitrability is assessed independently under Turkish standards. Others mistakenly believe that any dispute involving a regulated industry is automatically non-arbitrable, when in practice the analysis depends on whether the specific matter decided involved rights the parties could freely settle.

Where a dispute touches on a regulated sector or a matter with any public interest dimension, it is worth assessing the arbitrability question carefully before relying solely on arbitration as the enforcement route, and addressing it proactively in the Turkish enforcement petition rather than waiting for it to be raised as an objection.