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- Title
İSVİÇRE FEDERAL MAHKEMESİ KARARLARI IŞIĞINDA TAHKİM ANLAŞMASININ ANA YA DA BAĞLI ŞİRKETE TEŞMİLİ: HUKUKÎ İLİŞKİNİN EKONOMİK GERÇEKLİĞİ VE İRADE TEMELİNDEN AYRILMA EĞİLİMİ.
- Authors
ŞİT KÖŞGEROĞLU, Banu
- Abstract
The extension of arbitration agreements to third parties, and in this context, to companies within the same group, is one of the most controversial issues in Swiss international arbitration practice, as well as in international commercial arbitration practice in general. Although it is a well-known fact that the Swiss Federal Court has distanced itself from the group of companies doctrine, there are decisions of the Federal Court in which the Federal Court has accepted the extension to the parent or subsidiary company, which is a third party, on the basis of both implied consent and the good faith. In particular, in cases where the parent or subsidiary company is substantially involved in the underlying transaction, it is interpreted that the parent or subsidiary company is implicitly included in the arbitration agreement through its conduct; in this respect, it is stated that the understanding of the economic reality of the transaction replaces the understanding of the economic reality of the group of companies. The decisions of the Swiss Federal Court, in which the Swiss Federal Court relied on the principle of reliance on the appearance for the extension of the arbitration agreement to the parent or subsidiary company, are also mentioned, and it is emphasized that it is possible to consider the parent or subsidiary company as bound by the arbitration agreement on the basis of the principle of good faith. In this respect, there is a partial departure from the basis of consent in the extension of the arbitration agreement.
- Subjects
INTERNATIONAL commercial arbitration; FEDERAL court decisions; LEGAL judgments; PARENT companies; SUBSIDIARY corporations
- Publication
Banking & Commercial Law Journal / Banka ve Ticaret Hukuk Dergisi, 2023, Vol 39, Issue 1, p35
- ISSN
1300-1396
- Publication type
Article