Arbitrability of Disputes Arising from Joint Stock Company Law

While only contractual claims may be requested in arbitral proceedings carried out in accordance with shareholders’ agreements (“SHA”), it is not always possible to prevent claims peculiar to corporate law, such as invalidity of general assembly and board resolutions, action for dissolution and directors’ liability, from being asserted in local courts. Hence, contradicting judgments may be given in these parallel proceedings. For this reason, the rights and obligations stipulated in the SHA are carried into the articles of association (“AoA”) in order to make these mechanisms applicable on corporate level as well. However, the validity of a statutory arbitration clause in the AoA entails a series of issues both in terms of arbitration law and corporate law. This paper addresses the validity of an arbitration clause in the AoA of a joint stock company in respect of arbitrability under Turkish law, and it compares it with German and Swiss jurisdictions in order to propose practical solutions. Our proposal are: (i) the availability and conditions to stipulate an arbitration clause in the AoA should be clearly regulated, (ii) supplementary rules of arbitration that take problems specific to corporate law disputes into consideration should be adopted and (iii) a model arbitration clause referring to the above-mentioned rules should be prepared and published by ISTAC.