1. Introduction
Although arbitration proceedings are essentially a type of trial that results faster compared to judicial jurisdiction. However, the application and conclusion in arbitration proceedings again cover a certain period of time. During this period, in the dispute subject to arbitration, the party with the possibility of being found unjust in the judgment can dispose of the assets in their possession and prevent the creditor from collecting their debt. In order to protect the arbitration creditor from malicious acts and to ensure their rights, it is necessary to apply interim legal protection measures during the arbitration proceedings.
2. Interim Legal Protection Measures: Precautionary Measures and Precautionary Attachment
2.1. Precautionary measure is defined as a security measure applied in cases where the acquisition of the right will be significantly complicated or completely impossible due to a change that may occur in the current situation, or when there is a concern that a disadvantage or serious harm may arise due to delay, as stated in Article 389 of the Law on Civil Procedure No. 6100.
It is one of the temporary legal protections sought to eliminate the disadvantages arising from the prolongation of the lawsuit and to provide temporary legal protection, in order to ensure the acquisition of the subject matter of the lawsuit if the plaintiff wins the case.
2.2. Precautionary attachment, on the other hand, is regulated in Article 257 of the Enforcement and Bankruptcy Law and means the temporary seizure of the assets of the debtor to ensure the payment of a monetary debt only, and aims to prevent the debtor from hiding their assets.
In conclusion, the interim legal protection decision aims to prevent changes in the debtor’s assets, prevent the creditor from suffering damages or losses during the trial, and thus facilitate the implementation of arbitration and court decisions.
3. Procedure for Granting Interim Legal Protection Orders in Arbitration Proceedings
3.1. Article 6 of the International Arbitration Law, which is one of the basic regulations regarding arbitration, and Article 414 of the Law on Civil Procedure stipulate that the arbitrator or arbitral tribunal may grant interim legal protection during the arbitration proceedings unless otherwise agreed by the parties, and courts are also authorized to grant such orders.
3.2. In Article 414/3 of the Law on Civil Procedure, which includes the disputes without a foreign element and where the place of arbitration is determined as Turkey, the legislator clearly gave the arbitrators the power to grant interim legal protection orders. However, the law only allows courts to grant interim legal protection orders in certain cases. In principle, parties can apply to the courts for interim legal protection during the arbitration proceedings by relying on the permission of the arbitrators or the written agreement of the parties.
4. Implementation, Validity, and Statutory Deadlines for Interim Legal Protection Orders
The provisions of Article 6/5 of the International Arbitration Law and Article 414/4 of the Law on Civil Procedure contain similar arrangements with regard to the validity period of precautionary measures and precautionary attachment. According to these regulations, the precautionary measure or attachment will cease to be valid when the arbitration is finalized, meaning when the decision of the arbitrator or arbitral tribunal is enforceable or when the claim is rejected.
Regarding the precautionary measures or attachment obtained from Turkish courts before the arbitration proceedings, Article 10/A(2) of the International Arbitration Law stipulates that the arbitration must be initiated within thirty days from the date of the decision. Considering the nature of international arbitration proceedings, the two-week deadline set forth in Article 397 of the Law on Civil Procedure and the seven-day deadline in Article 264 of the Enforcement and Bankruptcy Law are extended to thirty days.
It should be emphasized that initiating the arbitration proceedings within thirty days alone will not be sufficient to maintain the validity of the precautionary measure or attachment obtained from Turkish courts. The party requesting the precautionary measure or attachment is obliged to provide the document proving that the arbitration has been initiated to the enforcement office responsible for executing the decision or attachment. Otherwise, even if the lawsuit is initiated within thirty days, the measures will be automatically lifted according to Article 397/1 of the Law on Civil Procedure.
İlknur Kapucu, Attorney at Law
