Milletlerarası Tahkimde Tahkim Anlaşmasının Ayrılabilirliği ve "Kompetenz-Kompetenz" İlkesi

Abstract

With its legal character and its legal effects, arbitration agreement distincts from main (or underlying) contract which belongs to substantive law and whose effects are seen in substantive law area. The situation where arbitration agreement is formed as an arbitration clause in a main contract does not change this legal reality. This distinction between these two contracts leads to separability of arbitration agreement which enables arbitration agreement to survive even though main contract is invalid or terminated. The separability principle has become a general and universal principle and has essential functions and consequences for international arbitration. Nevertheless, separability principle does not constitute a legal basis of “Kompetenz-Kompetenz” rule which enables arbitratiors to decide on their own jurisdiction. In other words, these two principles should be regarded as distinct from each other in international arbitration. In this study’s first part, arbitration agreement is scrutinized. In the second part, separability of arbitration agreement is examined and meaning, functions and legal character of separability principle are explained. In the third part, the issue whether “Kompetenz-Kompetenz” rule can be considered within the scope of separability principle is analyzed after the scope of separability of arbitration agreement is explained thoroughly.