Ercüment Erdem Prof. Dr. H. Ercument Erdem

Interaction between State Courts and Arbitral Tribunals in Taking of Evidence and Document Production

December 2019

Introduction

Taking of evidence and document production is one of the most debatable subjects in international commercial arbitration due to different legal and cultural backgrounds of the parties and their legal counsels. Since the chances of success mainly depend on whether or not a party can prove its case, it is crucial for the parties to choose the best procedure for their dispute.

When it comes to determining the procedure, the parties may choose common law or civil law jurisdictions depending on the nature of their disputes, they may draft their own arbitration procedure, or they may refer to internationally accepted rules. If the parties fail to determine such agreement, the applicable procedure will be determined as per the laws of the seat of arbitration.

Taking of Evidence and Production of Documents in International Commercial Arbitration in Turkey

The Turkish International Arbitration Law (“TIAL”) is the applicable law in Turkey setting forth the principles and procedures concerning international commercial arbitrations. The TIAL shall be applicable, only if; (i) the dispute has a foreign element and Turkey is the seat of arbitration, or (ii) the parties agreed on the TIAL as the governing law of arbitration.

Article 8 of the TIAL provides for the following with regard to the determination of procedural rules: (i) parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings; (ii) parties may make reference to any law in the determination of such procedure; (iii) parties may make reference to international (IBA Rules or Prague Rules) or institutional (ICC Rules, ITOTAM Rules, ISTAC Rules, etc.) arbitration rules; (iv) procedure agreed upon by the parties is subject to the mandatory provisions of the TIAL; (v) if there is no such agreement between the parties, an arbitral tribunal shall conduct the proceedings in accordance with the provisions of the TIAL; and (vi) parties shall have the same rights and powers, meaning that each party shall be accorded full opportunity to assert their petitions and defenses.

Most Commonly Used Procedural Rules and Their Approach on Seeking Court Assistance

Almost all institutional arbitration rules regulate procedural rules as to evidence. Only a few of them, however, refer to court assistance in terms of taking evidence.

For instance, Article 25 of the ICC Rules provides that the arbitral tribunal shall proceed within as short a time as possible to establish the facts of the case by all appropriate means, and at any time during the proceedings, the arbitral tribunal may summon any party to provide additional evidence.

Likewise, Article 29 of the ISTAC Rules also states that the arbitral tribunal shall consult all means it deems to be appropriate in order to establish the facts of the case, and the arbitral tribunal may request the parties to submit any additional information and documents during the course of the proceedings.

As to court assistance, the ITOTAM Rules are one of the few that explicitly mentions such interaction. Articles 26 through 30 of the ITOTAM Rules state that the arbitral tribunal may ask the parties to submit their evidence, hear witnesses, conduct discovery and appoint experts. As per Article 30, the parties may also apply to any competent judicial authority for interim or conservatory measures before the file is transmitted to the arbitral tribunal or, in certain circumstances, after receipt of the file by the arbitral tribunal.

Article 27 of the UNCITRAL Rules (2006) also adopts a similar approach by providing that the arbitral tribunal, or a party with the approval of the arbitral tribunal, may request from a competent court of state assistance in taking of evidence. The court may execute the request within its competence and according to its rules on taking evidence.

TIAL’s Approach on Seeking Assistance from a Competent Court for Taking of Evidence

Similar to the ITOTAM Rules and UNCITRAL Rules, the TIAL also regulates the assistance of the court in taking of evidence and production of documents. The TIAL provides for two different options through which to seek assistance from a competent court; (i) for interim measures of protection and interim attachments (Article 6), and (ii) for taking of evidence and production of documents (Article 12/B).

Interim Measures of Protection and Interim Attachments (Article 6)

According to Article 6, “If a party does not comply with the arbitral tribunal’s interim measure or attachment, the other party may request the assistance of the competent court for taking of an interim measure of protection or an interim attachment.”

One should keep in mind that under the TIAL, even if the arbitral tribunal has the power to decide on interim measures or interim attachments for the parties, the arbitral tribunal is not entitled to grant interim measures or interim attachments that are required to be enforced through execution offices, or to be executed through other official authorities, or which bind third parties.

Therefore, under the TIAL, the parties' right to request interim measures of protection or interim attachments to a court in accordance with the Code of Civil Procedure (“CCP”) is always reserved. According to Article 393(1) of the CCP, the party who sought the interim measure must demand the execution of such measure from the relevant enforcement office, or from the court itself, within one week from the decision date. Otherwise, the interim measure shall be deemed revoked.

It is also important to understand the approach the Court of Cassation has adopted for the application of the TIAL and CCP for taking interim measures of protection or interim attachments.

In one of its decisions, the 6th Chamber of Court of Cassation held that it is possible to seek interim measures from a competent court even if the arbitration award has not yet been enforced. According to the Court, the TIAL gives the opportunity to request, from a competent court, that interim measures be taken before and during the arbitral proceedings and, thus, it should also be possible to seek the court’s assistance after the arbitral proceedings in the same manner. The lack of such an enforcement decision alone does not constitute a legal barrier to request interim measures[1].

As to the extent of interim measures, the 2nd Chamber of Court of Cassation reversed the judgment of the court of first instance on the grounds that it is possible to decide on interim measures only concerning the subject of the dispute. The Court of Cassation held that it is incorrect to take interim measures on a property of the defendant, if such property is not the subject of the main dispute[2].

Taking of Evidence and Production of Documents (Article 12/B)

As per Article12/B, “The parties shall provide their evidence within the term that is determined by the arbitrators. The arbitral tribunal may request from the competent court of first instance assistance in taking of evidence. In such case, the provisions of the Code of Civil Procedure shall be applicable.”

Under this Article, if the arbitral tribunal needs assistance in taking of evidence and in production of documents, it may request from the national courts to issue an order to that effect. In such case, the applicable law will no longer be the TIAL, but rather the CCP. However, obtaining documents from the parties to the arbitration or from third parties might propose a challenge under the CCP.

Under the CCP, Turkish courts do not have the power to force the parties to submit evidence or produce documents against their will[3]. According to Article 220(3) of the CCP, if a party fails to comply, without showing cause for its non-compliance with a court decision ordering the same party to submit evidence or to produce a document within a prescribed time, the court shall have the discretion to assume the other party’s statement concerning the content of the evidence to be true and accurate. This provision creates the same adverse effect that the IBA Rules impose on the party who fails to produce evidence.

The decisions upheld by the Court of Cassation are very clear about the application of Article 220(3) of the CCP. In one of its decisions, the 22nd Chamber of the Court of Cassation reversed the decision of the trial court due to the fact that the trial court failed to apply Article 220(3). The 22nd Chamber, in its decision, did not give the trial court the discretion to decide whether or not it should apply Article 220(3), but rather decided that it must do so unless it is considered to be inadequate inspection or against due process[4].

The 15th Chamber of Court of Cassation also held, in one of its decisions, that if one of the parties restrains the court to compare and assess all of the relevant evidence that is required for the parties to prove certain facts by not making them available without cause, then it will be deemed as if the non-complying party accepted the evidence submitted by the other party[5].

Consequences of Non-Compliance of a Court Order

There are both civil and criminal consequences for non-compliance of a court order under Turkish law.

On July 11, 2018, the Constitutional Court repealed Article 398 of the CCP that provided disciplinary imprisonment from 6 to 12 months for persons who did not respect a court-ordered interim measure[6]. In other words, starting from November 20, 2019, Article 398 will no longer be applicable and, thus, there will be a legal loophole for non-compliance in the CCP.

When a party does not abide by a court decision, it is always possible to seek assistance from execution officers who have the power to enforce court orders as a civil law remedy. If the execution officer, however, fails to honor a court order, a criminal action may be initiated on the grounds of neglecting official duty or misconduct under Article 257 of the Turkish Criminal Code.

As to taking of evidence and production of documents, the court is entitled to make certain inferences on the actions of the non-complying party. In other words, if one of the parties fails to submit the evidence or documents so ordered by the court, then it shall be deemed as if the documents would have an adverse effect on the non-complying party.

In addition to the above, as per Article 221 of the CCP, third parties are obliged to produce a court-ordered document, and therefore, if a third party fails to produce such document, then the court shall request a third party’s witness testimony concerning the document. If the third party also fails to testify, accordingly, then the court may impose a disciplinary fine on the non-complying third party.

Conclusion

Due to the consensual nature of international arbitration and the principle of party autonomy, parties to arbitrations have the freedom to determine the arbitration procedure to be applied to their dispute. If the parties fail to determine such agreement, the applicable procedure will be determined as per the procedural laws of the seat of arbitration. The TIAL is the applicable law concerning international commercial arbitration where a dispute has a foreign element and the place of arbitration is determined to be in Turkey, or the parties opt for its application to their dispute.

The TIAL provides for court assistance in two different scenarios: (i) for interim measures of protection and interim attachments and (ii) for taking of evidence and production of documents. Pursuant to the TIAL, with respect to both scenarios, the national court will apply the CCP as the applicable law. Under the CCP, however, the courts do not have the power to force the parties to submit evidence nor to produce documents against their will. If the party fails to provide such evidence despite a court order, Turkish law provides different remedies that can be sought, such as; the evidence being considered to have an adverse effect as is the case with the IBA Rules; disciplinary fine on the non-complying third party; seeking assistance from execution officers who have the power to enforce court orders; and -if the execution officer fails to proceed accordingly- initiating a criminal action against the officer on the grounds of neglecting official duties or misconduct.

[1] 6. HD, E. 2014/3906, K. 2014/4941, 14.04.2014.

[2] 2. HD, E. 2016/14961, K. 2017/129, 10.01.2017.

[3] Gökyayla, Cemile Demir: Milletlerarası Tahkimde Belge İbrazı, İstanbul 2014, p. 201.

[4] 22. HD, E. 2017/17243, K. 2018/23664, 06.11.2018.

[5] 15. HD, E. 2018/2696, K. 2018/3431, 09.09.2018.

[6] Constitutional Court, E. 2018/1, K. 2018/83, 11.7.2018.