Author: Mehveş Erdem Kamiloğlu
Introduction
In the context of arbitration practice, the principle of revision au fond means that the courts can not examine the merits of a dispute when reviewing an arbitral award. This principle is most commonly encountered in set aside and enforcement proceedings. An arbitral award is evidence of the parties’ willingness to resolve their issues through arbitration, rather than through the courts. This is one of the reasons why an arbitral award may only be challenged through set aside proceedings, rather than through an appeal.Since arbitration proceedings are essentially dependent on the will of the parties, the grounds for set aside or enforcement should not be broad and the review of arbitral awards should be very limited. Otherwise, contrary to the will of the parties, a situation arises that undermines the basis of arbitration and prevents the arbitration from functioning. For this reason, the principle revision au fond which prevents the state courts from reviewing the arbitral award in terms of material and legal facts, is accepted in the world and Turkish law.
Under International Arbitration Law No. 4686 ("IAL"), a Turkish court may not rely on any grounds other than the grounds for set aside listed in Article 15 of the IAL for set aside proceedings. Similarly, it must only rely on Article 62 of the International Private and Procedural Law No. 5718 ("IPPL") and Article 5 of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("New York Convention") for enforcement proceedings. An arbitral tribunal's misapplication of the law or its incorrect decision in a dispute will not be grounds for set aside or for a refusal to enforce the award. Any other decision would be contrary to the law, as it would mean an evaluation of the merits. It is also clear from the provisions of Articles 55(2) and 56 of the IPPL that an enforcement judge should not evaluate the merits. This is also the opinion of the Court of Cassation. In a recent decision of the Court of Cassation, the General Assembly of Civil Chambers of the Court of Cassation ("GACC") emphasized the practical relevance of the principle of revision au fond by stating that the enforcement judge does not have the right and authority to examine the content of the judgment, except for the conditions of enforcement, and that the acceptance of the contrary position would lead the enforcement judge to the conclusion that they have the duty of a high court.
Under International Arbitration Law No. 4686 ("IAL"), a Turkish court may not rely on any grounds other than the grounds for set aside listed in Article 15 of the IAL for set aside proceedings. Similarly, it must only rely on Article 62 of the International Private and Procedural Law No. 5718 ("IPPL") and Article 5 of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("New York Convention") for enforcement proceedings. An arbitral tribunal's misapplication of the law or its incorrect decision in a dispute will not be grounds for set aside or for a refusal to enforce the award. Any other decision would be contrary to the law, as it would mean an evaluation of the merits. It is also clear from the provisions of Articles 55(2) and 56 of the IPPL that an enforcement judge should not evaluate the merits. This is also the opinion of the Court of Cassation. In a recent decision of the Court of Cassation, the General Assembly of Civil Chambers of the Court of Cassation ("GACC") emphasized the practical relevance of the principle of revision au fond by stating that the enforcement judge does not have the right and authority to examine the content of the judgment, except for the conditions of enforcement, and that the acceptance of the contrary position would lead the enforcement judge to the conclusion that they have the duty of a high court.
