Litigation and Alternative Dispute Resolution


Author: Melissa Balikci

Introduction

It is essential that all arbitrators are and remain, independent and impartial throughout the arbitration. Almost all institutional rules contain a provision requiring arbitrators to be impartial and independent. Examples include Article 14 of the ICC Rules where "lack of impartiality or independence" is a ground for challenging the arbitrators and Article 10 of the LCIA Rules and Article 12 of the UNCITRAL Arbitration Rules where "justifiable doubts as to the arbitrator's impartiality or independence" is foreseen as a valid ground for challenge. Other grounds for challenge include arbitrators acting contrary to the arbitration agreement and the arbitrator's qualifications.

Read more: Challenging Arbitrators and LCIA Challenge Decisions


Author: Prof. Dr. H. Ercument Erdem

State courts have very important functions concerning arbitration proceedings. These functions may aim to provide assistance to arbitration proceedings, such as collection of evidence through state courts, which would support the functions of the tribunal, or functions aimed at supervision of arbitration proceedings, such as set-aside actions. The legal provisions regulating these functions play an important role in the determinatiaon of whether a particular state has an arbitration-friendly legislation.

Important amendments pertaining to the proceedings to be conducted by Turkish courts related to arbitration proceedings have been introduced through Law numbered 7101 on Amendment of the Enforcement and Bankruptcy Law and Certain Laws1 (“Law”). Accordingly, the provisions regulating domestic and international arbitrations have been harmonized. Additionally, provisions reflecting current international arbitration practices have been adopted. The amendments introduced through the Law shall be analyzed in this article.

Read more: Amendments Introduced through Law No. 7101 on Arbitration Proceedings


Limitation Act (NSW)

The Limitation Act 1969 (NSW) (the Act) governs the length of time after which actions to recover debts can no longer be commenced. Where the period has expired the debt is referred to as ‘statute-barred’.

There are many different types of contracts under which debts may arise. They include fixed term loans (such as personal loans), credit card contracts, home loans and contracts for the purchase of goods such as hire-purchase agreements.  The type of contract under which the debt arises is critical in determining whether a 6 year or a 12 year limitation period applies.

Unsecured vs secured debts

Agreements to loan money or provide credit often include an arrangement whereby the lender can realise property of the borrower if the borrower defaults on their obligations. This property is knows as security, and the debt will be classed as a secured debt. A mortgage is a common form of security. Where the debt is unsecured, a claim to recover the debt must be commenced within 6 years from the date that debt first became due (section 14 of the Act), which will usually be the date the borrower defaulted.

Read more: Is my claim for the debt statute-barred?


Important steps have been taken in the resolution of disputes through arbitration in Turkey, in order to incentivize parties to include arbitration clauses into their agreements. Especially with the establishment of the Istanbul Arbitration Centre ("ISTAC"), parties have been informed on the resolution of disputes through arbitration, and have been encouraged to include arbitration clauses into the agreements they conclude. Within this context, new laws and regulations have been adopted in order to facilitate the inclusion of arbitration clauses by public authorities and institutions.

A current development in arbitration, pertaining to the possibility to include an arbitration clause in agreements concluded under Public Procurement Contracts Law numbered 47351, is analyzed in this article.

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Author: Tilbe Birengel

Introduction
Cost allocation in international arbitration is a significant concern for the parties of the dispute, as well as a debated topic among the practitioners and the scholars. The costs associated with arbitration may be grouped as procedural and parties' costs1. While procedural costs may be illustrated as fees and expenses of the arbitrators, in addition to the administrative expenses of the arbitration institution, the party costs consist of fees and expenses incurred due to a party's presentation of its case before the arbitral tribunal2.
The Methods for Allocation of Costs
In terms of cost allocation, international arbitration practice has broad flexibility. There is no uniform approach towards the division of costs among the parties of the dispute; hence, the discretion of arbitral tribunals is remarkably divergent in this field. Although this variance appears to create obscurity in costs allocation at first glance, there are three approaches that are commonly used by the practitioners, which are: the Costs Follow the Event; the Apportionment of Costs and the American Rule.

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