The Court of Appeal used to adopt an extremely strict approach, deeming arbitration clauses invalid unless they referred exclusively to arbitration. In numerous decisions, the Court of Appeal emphasised that the parties’ intention to submit their disputes to arbitration must be explicit, unequivocal, and free from any doubt or ambiguity. The rationale underlying this established approach was the principle that arbitration constitutes an exceptional method of dispute resolution. In other words, the Turkish judiciary traditionally took the view that, as a general rule, the resolution of disputes falls within the jurisdiction of the competent state courts. Consistent with this approach, the Court of Appeal also considered Med-Arb clauses to be invalid.
However, more recent decisions of the Court of Appeal reveal a shift towards a more arbitration-friendly approach with respect to the existence and validity of Med-Arb clauses. A notable example is the decision of the 3rd Civil Chamber of the Court of Appeal dated 6 April 2026 (File No. 2026/2187, Decision No. 2026/1881).
In this decision, the Court of Appeal stated that:
- In scholarly work and practice, alternative dispute resolution (ADR) is defined as a group of dispute resolution methods that operate as an alternative to litigation before state courts, which are entrusted with resolving disputes, and in which, generally, a neutral third party participates in order to assist and contribute to the parties in resolving an existing dispute.
- As an ADR method, mediation may be combined with and applied alongside other dispute resolution methods in private law disputes.
- A particular form of this process is known as “Med-Then-Arb” (Mediation-Then-Arbitration). Under this method, the parties first resort to mediation and seek a resolution to their dispute through settlement; if no settlement is reached, arbitration is then commenced. If the dispute cannot be successfully resolved through mediation, it is ultimately and bindingly resolved by an arbitrator through arbitration proceedings. This makes it possible to combine both the flexibility expected from the mediation process and the rendering of a final decision through arbitration. Under this method, it is agreed in advance that arbitration will follow mediation, and the two processes continue to exist as entirely independent avenues without merging into one another.
- Article 8 of the agreement entitled “Resolution of Disputes” executed between the parties provided as follows:
“All disputes arising out of or in connection with this Agreement shall first be resolved through mediation. The mediator shall be appointed by the ***** Mediation Center. If the parties fail to reach an agreement as a result of the mediation, all disputes arising out of or in connection with this Agreement shall be finally resolved by arbitration before ***** in accordance with the ***** Arbitration Rules of the ***** Arbitration Center.
In all disputes arising out of or in connection with this Agreement, the provisions governing service of notices set forth in the Arbitration Rules of the ***** Arbitration Center shall apply. The seat of arbitration shall be *****, the number of arbitrators shall be one (1), the language of the arbitration shall be Turkish, and the law applicable to the merits of the dispute shall be Turkish law. Where necessary, the parties may seek interim measures in accordance with the ***** Arbitration Rules.
In matters not provided for in this Agreement, the provisions of the Attorney’s Act concerning the Attorney Agreement (Articles 163 et seq.) shall apply on a supplementary basis.
This Agreement consists of ***** articles and was drawn up and signed in ***** counterparts on *****, and one copy was delivered by hand to each of the parties whose signatures appear herein.”
- In the dispute arising out of this attorney agreement, the parties first resorted to mediation and, when no resolution was reached, subsequently resorted to arbitration. The relevant provision of the agreement clearly and unequivocally reflects the parties’ intention that, if the dispute cannot be resolved through mediation, it shall be resolved through arbitration.
- As explained above, since it is legally permissible, as an ADR, to first resort to mediation and, if no settlement is reached, subsequently proceed to arbitration (Med-Then-Arb), it is likewise lawful, in the present dispute—which is arbitrable—to first resort to mediation and, since no settlement was reached, subsequently proceed to arbitration.
In conclusion, in light of the Court of Appeal’s new arbitration-friendly approach, parties may consider incorporating Med-Arb clauses into their respective contracts.
