Turkish Court of Cassation General Assembly Decision on the Rights to Fair Trial

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 During the arbitral proceedings which are the subject matter of this decision, the Claimant presented a valuation report prepared by a third party which was for the valuation of the company that is the subject matter of the dispute. The names of the people who prepared this said report that was presented as evidence and a part of the report itself was not disclosed to the attorneys and the evaluation specialist assigned by the Respondent. Additionally, upon the request of the Claimant, the Respondent was prohibited by the arbitrators from examining this report. Only attorneys of the Respondent and evaluation specialist examined a part of the report that is presented to the arbitral tribunal. When rendering the decision, the arbitrators predicated this report on. Therefore, the Respondent opposed the recognition and enforcement of the arbitral award on the ground of the violation of the right to fair trial. The first instance court rejected the enforcement of the award for this reason. The 11th Civil Chamber of Turkish Court of Cassation reversed this above-mentioned decision the of the first instance court. The Respondent filed a petition for the revision of the decision. Upon this petition, the 11th Civil Chamber of the Turkish Court of Cassation revised its decision. Below you may find the considerations contained in this revised decision.

  • All the presented evidence should be available for an inspection by the opposing party as well.  Merely presenting the evidence to the arbitral tribunal is not sufficient. Any matter that is not disclosed to the parties shall not be a ground for the decision.
  • Through citing the right of “protection of the trade secrets” of a company, the examination of a piece of evidence by the opposing party cannot be prevented in a manner that obstructs the right to a fair trial.
  • Since the evidence was partially presented and the names of the specialist who prepared the report was not revealed, the existence, and the content of this said report became suspicious for the Respondent.
  • Since the identity of the specialists preparing the report was not known by the Respondent, they could not be cross examined by the Respondent’s attorneys.
  • All these above-mentioned aspects caused a suspicion with regards to the impartiality of the board of arbitrators and the severe violation of the Respondent’s right to access to the evidence and therefore right of defense.
  • Restriction of the right of defense and thus the violation of the right to a fair trial by this means is also a manifest contradiction to Turkish Public Policy.
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