172 NEWSLETTER 2021 “(4) The articles of association may stipulate that corporate law disputes will be resolved by an arbitral tribunal seated in Turkey. Unless the articles of association provide otherwise, the company, its bodies, members of the bodies and shareholders are bound by the arbitration clause. Arbitration is subject to the provisions of the eleventh Part of Civil Procedure Law numbered 6100 and dated 12.01.2011. International Arbitration Law numbered 4686 and dated 21.06.2001 is not applicable. The articles of association may regulate the arbitration procedure by referring to a specific arbitration rule. The arbitration clause to be included in the articles of association also requires that persons who may be directly affected by the legal consequences of the arbitral award are informed about the initiation and conclusion of the proceedings, and that they can participate in the constitution of the arbitral tribunal and in the proceedings as interveners.” Considering that the company’s seat of corporation is in Turkey and that Turkish law should be applied, domestic arbitration which is governed by the Civil Procedure Law should be regulated in the TCC as it is in Switzerland. In addition, it would be useful to specify in the TCC that the arbitration rules may be determined by referring to arbitration rules of institutional arbitration centers. In addition to the new paragraph to be added to TCC art. 339, a new paragraph should be added to TCC art. 421/3 requiring an affirmative vote of shareholders owning shares constituting at least seventy-five percent of the capital for the amendment of the articles of association. Furthermore, adding a new paragraph to TCC art. 354/1 can ensure that the arbitration clause benefits from the positive (informative) function of registration. Regarding limited companies, the arbitration clause can be listed among the binding provisions of the articles of association in TCC art. 577/1. The qualified majority required for the important decisions listed in TCC art. 621/1 can also be utilized for adding arbitration clause to the articles of association. Finally, by adding a new paragraph to TCC art. 587/1, the arbitration clause can benefit from the positive (informative) function of registration for these companies as well.
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