Arbitration Agreements and the Arbitration Objection in Turkish Courts: Written Form, Validity and the Answer-Petition Deadline (HMK 412-413, Law 4686 Articles 4-5)

Turkish law sets a written-form rule, says the clause survives an invalid main contract, and treats the arbitration objection as a preliminary objection that must appear in the answer petition. This guide explains both regimes, domestic and international, and the steps that keep the clause alive.

1. Two Regimes: Domestic Arbitration (HMK) and International Arbitration (Law 4686)

Turkish arbitration law has two statutes, and the first step in any dispute about an arbitration clause is to find out which one applies.

The Code of Civil Procedure (HMK, Law No. 6100) contains a full arbitration part in Articles 407 to 444. Under HMK Article 407(1), these provisions apply to disputes that do not contain a foreign element in the sense defined by Law No. 4686 and whose seat of arbitration is in Türkiye.

The International Arbitration Law (Law No. 4686) applies, under its Article 1, to disputes that contain a foreign element and whose seat is in Türkiye, or where the provisions of that Law have been chosen by the parties or by the arbitrator or tribunal. Two further rules in Article 1 deserve attention:

• Articles 5 and 6 of Law 4686 (the arbitration objection, and interim measures and attachment) apply even where the seat of arbitration is outside Türkiye. A foreign company whose arbitration clause sets the seat in London or Paris can therefore rely on Article 5 when its Turkish counterparty sues it in a Turkish court.
• Law 4686 does not apply to disputes concerning rights in rem on immovable property located in Türkiye or to disputes that are not subject to the will of the parties; international treaties to which Türkiye is a party are reserved.

What counts as a foreign element? Under Law 4686 Article 2, the dispute has a foreign element, and the arbitration becomes international, if any one of the following applies:

1. the parties to the arbitration agreement have their domicile, habitual residence or place of business in different states;
2. the parties’ domicile, habitual residence or place of business is in a state other than the place of arbitration set in or under the agreement, or other than the place where a substantial part of the obligations under the main contract is to be performed or with which the subject matter of the dispute is most closely connected;
3. at least one shareholder of a company that is party to the main contract has brought in foreign capital under the foreign-investment legislation, or loan and/or security agreements must be concluded to obtain capital from abroad for the performance of the contract;
4. the main contract or legal relationship underlying the arbitration agreement results in a movement of capital or goods from one country to another.

A contract with a Turkish company owned by a foreign investor, or a supply contract that moves goods across the border, may therefore fall under Law 4686 even if both contracting companies are registered in Türkiye; whether it does depends on the facts listed in Article 2.

2. When Is an Arbitration Agreement Valid? Form, Separability and Arbitrability

Definition and form of the agreement. Under HMK Article 412(1)-(2) and Law 4686 Article 4, an arbitration agreement is the parties’ agreement to submit all or some of the disputes that have arisen or may arise between them out of a legal relationship, contractual or not, to arbitration. It may be a clause in the main contract or a separate agreement.

Written form. Both statutes require the agreement to be in writing and list the ways the requirement is met. HMK Article 412(3) says that recording the agreement in one of the following is sufficient (“yeterlidir”); Law 4686 Article 4 says that it is required (“gerekir”):

• a written document signed by the parties;
• letters, telegrams, telexes, faxes or a similar means of communication exchanged between the parties;
• an electronic medium; or
• where the statement of claim asserts the existence of a written arbitration agreement and the defendant does not object in the answer petition.

A reference to a document containing an arbitration clause, made in order to make that clause part of the main contract, also creates an arbitration agreement (HMK Article 412(3); Law 4686 Article 4). Group contracts that refer to general terms or framework agreements should therefore make the reference to the arbitration clause clear.

Governing law of the agreement (international cases). Law 4686 Article 4 adds a rule that the HMK does not contain: the arbitration agreement is valid if it complies with the law the parties chose to govern the arbitration agreement or, failing such a choice, with Turkish law.

Separability. Under HMK Article 412(4) and Law 4686 Article 4, a party cannot oppose the arbitration agreement by arguing that the main contract is invalid or that the arbitration agreement concerns a dispute that has not yet arisen. The same principle governs the tribunal: under HMK Article 422(1) and Law 4686 Article 7(H), the arbitrator or tribunal may rule on its own jurisdiction, including objections concerning the existence or validity of the arbitration agreement; in doing so, an arbitration clause in a contract is assessed independently of the contract’s other provisions, and a finding that the main contract is null does not by itself render the arbitration agreement null.

Arbitrability. Under HMK Article 408, disputes arising from rights in rem on immovable property or from matters not subject to the will of both parties are not arbitrable. A share purchase dispute can go to arbitration; a dispute about registered ownership of a plot of land in Türkiye cannot.

3. Raising the Arbitration Objection in a Turkish Court: the Answer-Petition Rule

The arbitration clause does not prevent the other side from filing a lawsuit in a Turkish court. What protects the party relying on the clause is the arbitration objection (tahkim itirazı), and it must be raised correctly and in time.

The rule. Under HMK Article 413(1), if a case is filed in court on a dispute that is the subject of an arbitration agreement, the other party may raise the arbitration preliminary objection. In that case, unless the arbitration agreement is null, inoperative or incapable of being performed, the court accepts the objection and dismisses the case on procedural grounds. For international disputes, Law 4686 Article 5 provides that the other party may raise the arbitration objection, that raising it and resolving disputes about the validity of the arbitration agreement are subject to the procedural rules on preliminary objections, and that the court dismisses the case on procedural grounds if it accepts the objection. Article 5 refers to the repealed Code of Civil Procedure No. 1086; under HMK Article 447(2), references in legislation to that repealed Code are deemed made to the corresponding provisions of the HMK, which for preliminary objections are Articles 116 and 117.

A preliminary objection with a strict deadline. Under HMK Article 116(1)(b), the objection that the dispute must be resolved by arbitration is one of the preliminary objections (the other is the objection to venue where venue is not mandatory). The consequences are set out in three short provisions:

1. HMK Article 117(1): all preliminary objections must be raised in the answer petition; otherwise they cannot be heard.
2. HMK Article 131(1): after the answer petition has been filed, preliminary objections cannot be raised, even if the answer period has not yet expired.
3. HMK Articles 117(2)-(3), 137(1) and 138(1): preliminary objections are examined after the conditions of action and decided like preliminary issues; in the preliminary examination the court first decides on them on the file and, where it considers it necessary, may hear the parties at the preliminary-examination hearing.

This means that a foreign company served with a Turkish statement of claim must place the arbitration objection, with the arbitration agreement attached or identified, in its answer petition. A defence on the merits filed first, followed by a separate petition raising arbitration a few days later, falls foul of HMK Article 131(1) even if the answer period is still running.

Parallel arbitration. Under HMK Article 413(2), raising the arbitration objection does not prevent the arbitral proceedings. The party relying on the clause can therefore start or continue the arbitration while the court examines the objection.

Agreement during the lawsuit. If the parties agree during the court proceedings to go to arbitration, the court sends the file to the arbitrator or arbitral tribunal concerned (HMK Article 412(5); Law 4686 Article 5).

4. What Happens When the Objection Is Missed or the Tribunal’s Jurisdiction Is Contested

If the objection is not raised in the answer petition, it cannot be heard (HMK Article 117(1)), and the court continues to examine the case. The written-form rule produces a related effect in the opposite direction: where the claimant asserts a written arbitration agreement in the statement of claim and the defendant does not object to it in the answer petition, the form requirement is deemed satisfied (HMK Article 412(3); Law 4686 Article 4).

Objections before the tribunal. The tribunal has its own deadlines. Under HMK Article 422(2)-(4) and Law 4686 Article 7(H):

• the objection that the arbitrator or tribunal lacks jurisdiction must be made at the latest in the (first) answer petition in the arbitration;
• having appointed an arbitrator, or taken part in the appointment, does not remove a party’s right to object to the tribunal’s jurisdiction;
• the objection that the tribunal is exceeding its authority must be raised immediately;
• in both cases the tribunal may accept a late objection if it finds that the delay was based on a justified reason;
• the tribunal examines the jurisdictional objection as a preliminary question and, if it finds that it has jurisdiction, continues the arbitration and decides the dispute (HMK Article 422(5); Law 4686 Article 7(H)).

Non-compliance with the agreed procedure (domestic arbitration). Under HMK Article 409, where a provision from which the parties may derogate or the arbitration agreement is not complied with, the party concerned may object; if it continues the arbitration without objecting within two weeks of learning of the non-compliance, or within the period set by the arbitrators, it is deemed to have waived its right to object.

5. After the Award: Annulment on the Ground of an Invalid Arbitration Agreement

The validity of the arbitration agreement comes back at the end of the process as a ground for annulment. The two regimes differ on the time limit and on the effect of the annulment action, which the table summarises.

Under HMK Article 439(1)-(2)(a), the only remedy against a domestic award is an annulment action filed at the regional court of appeal of the seat, and the award may be annulled if a party to the arbitration agreement lacked capacity or the agreement was invalid. Under Law 4686 Article 15(A)(1)(a), an international award may be annulled if the applicant proves that a party lacked capacity or that the arbitration agreement is invalid under the law the parties chose or, failing a choice, under Turkish law. Our guide to annulment of arbitral awards explains the full list of grounds and the procedure.

6. A Practical Checklist for Contracts and for the First Days of a Lawsuit

When drafting the clause:

1. Put it in writing and in the right document. Use a signed contract or a clear exchange of written communications, and if the clause sits in general terms, make the reference to it explicit (HMK Article 412(3); Law 4686 Article 4).
2. Choose the law of the arbitration agreement. In an international contract, state which law governs the arbitration agreement itself; otherwise Turkish law applies to its validity (Law 4686 Article 4).
3. Check arbitrability. Keep disputes over rights in rem on Turkish immovables out of the clause’s expectations (HMK Article 408; Law 4686 Article 1).

When you are sued in Türkiye despite the clause:

1. Diary the answer period from service and prepare a single answer petition.
2. Put the arbitration objection in that answer petition, together with the arbitration agreement, because it cannot be added later (HMK Articles 116(1)(b), 117(1), 131(1)).
3. Address validity in the same petition. Explain why the agreement is not null, inoperative or incapable of being performed (HMK Article 413(1)).
4. Consider starting or continuing the arbitration, which the objection does not prevent (HMK Article 413(2)).
5. Think about interim protection. In international cases, Article 6 of Law 4686 governs court and tribunal interim measures; see our guide to interim measures in international arbitration.