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Author Topic: BAR ASSOCIATION ARBITRATION BOARD REGULATIONS OF BAR ASSOCIATIONS OF TURKEY  (Read 5947 times)

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BAR ASSOCIATION ARBITRATION BOARD REGULATIONS (*)
OF THE UNION OF BAR ASSOCIATIONS OF TURKEY


PART ONE
Purpose, Scope, And Basis

Purpose and Scope
Article 1 – These Regulations have been prepared for the purpose of prescribing the provisions governing the election of the attorney members, the duties, powers, method of operation, the rejection or withdrawal of the members, and the fees to be paid to the chairman and the members of the bar arbitration board to be established in the district of a bar association.

Legal basis
Article 2 – These Regulations have been prepared in accordance with Article 167 of the Attorneyship Law, number 1136, dated 19 March 1969.




PART TWO
General Provisions

Composition, Duties, And Powers

Composition of the arbitration board
Article 3 – The arbitration board will be composed of the senior civil judge of first instance in the jurisdictional area where the bar association is located and two attorney members to be elected by the board of directors of the bar association. The civil judge of first instance will be the chairperson of the arbitration board.
The attorney members of the arbitration board must possess the qualifications and must not be impeded by the conditions precluding eligibility for membership on the board of directors as stated in the first and second paragraphs of Article 90 of the Attorneyship Law, number 1136, dated 19 March 1969.
 Those serving as president or as members on the boards of directors, the disciplinary boards, and the boards of audit of the Union of Bar Associations of Turkey or bar associations may not be members on the arbitration board. However, if no members are available for appointment to the arbitration board, appointments may be made to the arbitration board from among those serving in the entities of the bar association.
When a member of the arbitration board is elected to any of the positions mentioned above, he/she must choose between the two positions.
If the member does not exercise his/her right to choose within ten days after his/her election, his/her membership on the arbitration board will be terminated automatically.
In the event of an attorney membership post on the arbitration board being vacated for any reason, the board of directors of the bar association will elect a new member within ten days to replace the former member.
An adequate number of alternate members, not to be fewer than two depending on the workload of the arbitration board, will be elected by the board of directors of the bar association together with the regular members, to step in as replacements in the event of a member’s temporary incapacitation from actively or legally discharging his/her duties or inability to discharge his/her duties properly and in a timely manner for such reasons as rejection, withdrawal, or medical condition. The conditions for eligibility and the terms of duty of the regular members will also be applicable to the alternate members.
The term of duty for an elected member will be three years. Regular and alternate members whose term has expired may be reelected. In the event of a vacancy in any of the posts of the regular or alternate members, the replacing member will serve out the term of the former.

Clerical office of the arbitration board
Article 4 – An adequately staffed clerical office to keep track of the actions of the arbitration board and conduct the required correspondence will be established in every bar association.
Ten percent of the fees due to the arbitration board will be marked as revenue to the bar association to offset the expenditures and other costs of the clerical office.

Duty of the arbitration board
Article 5 – The duty of the arbitration board is to resolve the following disputes and, in cases where an attorneyship fee has not been agreed, to examine the disputes over fees and to determine the fee:
a) All kinds of disputes arising in connection with the attorneyship contracts and attorneyship fees stated in Article 167 of the Attorneyship Law, number 1136, dated 19 March 1969.
b) All kinds of disputes arising between attorneys sharing the same office as stated in Subparagraph B/b of Article 44 of the Attorneyship Law, number 1136, dated 19 March 1969.
c) All kinds of disputes arising between the partners to an attorney partnership and in connection with the partnership.
d) Disputes to arise with third parties over price in the transfer and succession of shares in a partnership.

The arbitration board having jurisdiction
Article 6 – The board authorized to resolve the disputes covered by the present Regulations will be the arbitration board of the bar association where the disputed legal services are rendered.
However,
a- In the event the legal services have been rendered in the districts of more than one bar association,
1) If one of the disputed legal services have been rendered in the district of the bar association the attorney is enrolled with, the arbitration board having jurisdiction over the district of the bar association the attorney is enrolled with will have authority as far as the other legal services are concerned.
2) In cases other than the above, the arbitration board having jurisdiction over the district of the bar association where any of the disputed legal services have been rendered will have authority as far as the other disputed legal services are concerned.
b- In disputes arising from “disagreements between attorneys working together, or between attorneys in partnership in connection with their mutual affairs with one another, the affairs of the partnership, or affairs with third parties regarding price in the transfer and succession of partnership shares” as stated in Article 44 of the Attorneyship Law, number 1136, dated 19 March 1969, and the disputes defined in Subparagraph B/b of the same Article, the board authorized to resolve the dispute will be the arbitration board in the place where the attorney partnership is registered.

Arbitration fee
Article 7 – The arbitration fee will be the fee indicated in the Attorneyship Fee Tariff in effect as of the date the suit is considered to have been filed with the arbitration board.
The arbitration fee will be paid in half in the event the dispute ceases to exist before the commencement of investigation due to abatement of action, waiver of claim, acceptance, and settlement out of court; and paid in full if the dispute ceases to exist after the commencement of investigation.
The fee to be paid to an alternate member, when one participates, will be determined by the arbitration board.

Rejection of arbitrators
Article 8 – The chairperson and the members of the board may be rejected for the reasons stated in Article 29 of the Code of Civil Procedure, number 1086, dated 18 June 1927.
The request for the rejection of an arbitrator must be made not later than ten days as of the date the reason for the rejection has been learned.
The request for the rejection of an arbitrator will be made by a letter. The evidence of the circumstances or incidents on which the request for rejection is based must be clearly indicated in this letter and relevant documents, if any, must be enclosed.
The withdrawal of a request for rejection will not be valid.
In order for an attorney to reject an arbitrator, the attorney must be expressly authorized to do so in the power of attorney.
The request for the rejection of (an) arbitrator(s) will be considered by the arbitration board on which he/she/they is/are a member without the participation of the arbitrator(s) requested to be rejected and with the participation of alternate member(s).
If the participation of the alternate members will not suffice to convene the arbitration board given the non-participation of the arbitrator(s) requested to be rejected, the request for rejection will be considered by the arbitration board in the nearest bar association district. The board may not be rejected in its entirety.
The party rejecting an arbitrator will have its request for rejection communicated to the opposite party. The opposite party may respond within five days. Upon the expiration of this period, the letter of request for rejection will be delivered to the arbitrator requested to be rejected together with the file and, if any, the response of the opposite party and any enclosures therewith.
The arbitrator will examine the file within five days and communicate in writing his/her opinion as to the whether the reasons for rejection are just. The clerical office of the board of arbitrators will immediately give or send the file to the board authorized to examine the request for rejection.
The board examining the request will evaluate the evidence submitted at its discretion and make a decision as appropriate. Out of consideration for credibility, the board may decide to accept the request even if the reasons for the rejection are only a possibility.
An oath may not be proposed on the reasons for rejection.
The invitation of an arbitrator to withdrawal will have the same effect as rejection.
A request for the rejection of an arbitrator will be refused by the arbitration board if,
a) the request has not been made in a timely manner,
b) reasons for rejection or convincing evidence have not been submitted,
c) it is evident that the request for rejection has been made in order to delay the procedures.
A decision of refusal may only be appealed together with the principal judgement.

Withdrawal of arbitrators
 Article 9 – Arbitrators will be prohibited from arbitrating a suit under the circumstances stated in Article 28 of the Code of Civil Procedure, number 1086, dated 18 June 1927, in which case they will be expected to w’thdraw of their own motion.
The provisions in Articles 30, 31, 32, 36 of the Code of Civil Procedure, number 1086, dated 18 June 1927, will be applied with equal force to the circumstances of withdrawal and rejection of arbitrators to the extent of their relevance to the cases in point.
If the participation of the alternate members due to rejections or withdrawals will not suffice to convene the arbitration board, the board authorized to consider the dispute will be the arbitration board in the nearest bar association district.

Service of notice
Article 10 – While the provisions in Article 56 of the Attorneyship Law, number 1136, dated 19 March 1969; the Service of Notice Law, number 7201, dated 1 February 1959; and the Service of Notice By-Law are applicable in the suits and cases handled by the arbitration board, the parties may request the board to have notices served to each other by such means as fax, teletype, return registered mail, and fast mail service if they wish.



 
PART THREE
Trial Procedure

Filing of suit
Article 11 – Suits will be filed with the arbitration board by submitting a letter which will include the following:
a) The names, last names, and addresses of the parties and of their legal representatives or attorneys, if any.
b) A clear explanation of the matter in dispute.
c) An enumerated account of the clearly expressed summaries of each incident on which the plaintiff’s allegation is based and what the evidence consists of.
d) A summary of the legal grounds.
e) A clear explanation of the relief demanded.
f) The period granted to the opposite party for a response.
g) The signature of the plaintiff or a legal representative or attorney, if any.
The plaintiff will append the evidence available to his/her petition. The number of copies of the petition and any appendices thereto must be one more than the number of defendants.
The plaintiff will also append to the petition the receipt indicating the payment of one half of the arbitration fee, and will pay the required costs.

Time of filing suit
Article 12 – The time the suit has been filed is the date the petition has been submitted to the president of the bar association.
The petition may also be submitted to the president of a bar association outside the jurisdictional area of the arbitration board. In such a case, the suit will be considered as filed on the date the petition has been registered in the correspondence book of the bar association applied to.
The plaintiff must append to the petition the receipt indicating the payment of one half of the arbitration fee and the required costs. The petition will not be processed until this receipt is presented. The suit will be considered as not filed if the receipt indicating the payment of one half of the arbitration fee and the required costs is not presented within one month.

Preliminary objections
Article 13 – The preliminary objections consist of the following:
a) Claim of surety from non-residents in Turkey.
b) Objection to competence.
c) A claim that the suit filed is being arbitrated by another board.
d) A claim that discrepancies exist in the letter of invitation or that the service of notice was not properly executed.
e) A claim that the counterclaim is not acceptable.
The preliminary objections must be submitted collectively at the beginning of the suit.
The decision on the preliminary objections will be made with priority by the board authorized to arbitrate the main action.

Answer to the merits
Article 14 – The defendant will submit his/her answer to the main cause                        and any counter-evidence available, together with his/her preliminary objections, to the clerical office of the arbitration board within ten days from the date of service of notice for communication to the opposite party. If a different period of time is granted by the plaintiff or the board, then such different period will be taken into consideration.
The answer to the suit will include the following:
a) The names, last names, and addresses of the parties or of their legal representatives or attorneys, if any.
b) The defense in clear terms.
c) Answers to each incident submitted by the plaintiff.
d) The signature of the defendant or a legal representative or attorney, if any.
The number of copies of the answer and the originals and facsimiles of the defensive documents the defendant will append to his/her petition to submit to the board must be one more than the number of the opposite party’s.
The defendant will be under the obligation to submit in his answer all of his/her claims and defenses with their reasons including the counterclaim.

Counterclaim
Article 15 – The defendant may file a counterclaim by stating the fact in his/her answer to be submitted in response to the main action within the designated period.
The provisions in Article 204 of the Code of Civil Procedure, number 1086, dated 18 June 1927, will be applied as to which suits will be qualified as counterclaims.
The provisions in Articles 205 through 208 of the Code of Civil Procedure, number 1086, dated 18 June 1927, will be applied here, as well, regarding issues that may arise in connection with counterclaims.

Investigation
Article 16 – As a rule, the board will conduct the investigation through the file. However, the board may decide to conduct the investigation by trial when deemed necessary in situations such as the hearing of witnesses, the viewing of a physical setting, or an inspection by specialists.
A decision of trial will be communicated to the parties by convenient means ten days before the trial at the latest. If either party is absent from the trial at the designated place and time without a valid excuse, the trial and investigation will be conducted in his/her absence. The trial will proceed with the participation of the party present if prior notice of warning has been served the parties.
The trial will be held in a place designated for the purpose by the bar association.
The board will first invite the parties to a peaceful settlement.
The board will conduct a preliminary examination on the applications submitted and their enclosures.
Which member of the board will conduct the investigation will be decided by a memorandum of understanding. The member charged with the investigation may perform the actions stated in Articles 182, 183, 184, 196, 197, 209, 211, and 212 of the Code of Civil Procedure, number 1086, dated 18 June 1927, on his/her own.
The actions performed in the course of the operations of the board will be recorded in a memorandum which will be signed by the chairperson and members of the board and the clerk tasked with preparing the memorandum, if any. One of the board members may just as well be tasked with preparing the memorandum.
The principle of preparing a memorandum will be equally applicable in case one of the members is charged with the investigation.
The board will finalize the disputes arising in connection with fee contracts within six months from the date the suit has been filed.

PART FOUR
Evidence And Its Submission

Submission of evidence
Article 17 –
Articles 236 through 374 of the Code of Civil Procedure, number 1086, dated 18 June 1927, will be applied also to suits being arbitrated by the board to the extent relevant in respect of determining what will constitute an evidence and how the evidence will be submitted.
Evaluation of the evidence at liberty will be at the discretion of the arbitration board within the framework of the provisions in the Code of Civil Procedure, number 1086, dated 18 June 1927,
The board may hear the witnesses nominated by the parties if it deems necessary; and may decide to administer oaths both at its discretion and as proposed by the parties.
The provisions in the Code of Civil Procedure, number 1086, dated 18 June 1927, will be applied to the hearing of witnesses by the board from outside the jurisdictional area, oath, viewing of a physical setting, and inspection by specialists. If an arbitration board is available at the place where these actions will be conducted, that board will be authorized and assigned to conduct them.


 

PART FIVE
Completion of the investigation and the decision

Decision
Article 18 – If a trial day has been set for the final remarks of the parties, the parties will be verbally notified of the completion of the investigation, and a summary of the decision will be communicated to the parties at the end of the trial if the reason for the decision has not yet been written.
The board will be under the obligation to write its reasoned decision amplifying the summary decision within ten days.

Enforcement of the decisions
Article 19 – The provision in Article 38 of the Enforcement and Bankruptcy Law, number 2004, dated 9 June 1932, will be applied in the enforcement of the board’s decisions.
The arbitration board may decide to impose cautionary attachment and cautionary judgement if just and compelling reasons exist.

PART SIX
Legal Remedy

Appeal
Article 20 – The parties will have the right to make an appeal from the decisions of the arbitration board within fifteen days as of the date they have been served notice of such decisions.
The request for an appeal will be made by an appellate petition.
Article 435 of the Code of Civil Procedure, number 1086, dated 18 June 1927, governing the contents of the appellate petition will also be applied to appeals from the decisions of arbitration boards.
The appellate petition may be submitted to the president of the bar association of the board which made the decision or to the presidents of the bar associations stated in the second paragraph of Article 12 of the present Regulations.
Article 434 of the Code of Civil Procedure, number 1086, dated 18 June 1927, governing the time when the request for an appeal will be considered as having been made will also be applied to appeals from the decisions of arbitration boards.
Appeals may not be sought from convictions and decisions which are final in accordance with the Code of Civil Procedure, number 1086, dated 18 June 1927,

Appellate review
Article 21 – The Supreme Court of Appeals will conduct its appellate review through the file.
Article 438 of the Code of Civil Procedure, number 1086, dated 18 June 1927, governing the conduct of appellate reviews by trial will also be applied to the appellate reviews of the decisions of arbitration boards.

Reversal of decision
Article 22 – The decisions made by the arbitration board may only be reversed by the Supreme Court of Appeals under the following circumstances:
a) A decision having been made on an issue that is not the subject of a claim.
b) A decision having been made on an issue that does not fall under the jurisdiction of the board.
c) The board not having made a decision on each of the claims of both parties.

Retrial
Article 23 – A request for retrial may be made against the decisions of the arbitration board in accordance with Articles 445 through 454 of the Code of Civil Procedure, number 1086, dated 18 June 1927.

Provisions applicable
Article 24 –
The Attorneyship Law, number 1136, dated 19 March 1969; the Attorneyship Law Regulations; the Professional Rules; Articles 527, 529, 532, the first paragraph of Article 533, and Article 536 of the Code of Civil Procedure, number 1086, dated 18 June 1927; and the Clerical Affairs Regulations for Civil and Commercial Courts will be applied to circumstances not covered by the provisions in the present Regulations.

Entry into effect
Article 25 – These Regulations will enter into effect on the date of their publication.

Enforcement
Article 26 – The provisions in these Regulations will be enforced by the board of directors of the Union of Bar Associations of Turkey.

(*) The present Regulations prepared by the Union of Bar Associations of Turkey have been published in the Official Gazette issue 24583 dated 14 November 2001.

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