&lt;p style="text-align: justify;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">&lt;strong>Paris Court of Cassation Reinstated an Investment Treaty Arbitration Award
Against Russia in relation to the Crimean War&lt;/strong>&lt;/span>&lt;/p>&lt;p style="text-align: justify;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">Paris Court of Cassation upheld the investment-treaty award rendered by the Permanent
Court of Arbitration, which requires Russia to compensate for the losses incurred by a
Ukrainian bank, Oschadbank, as a result of Russia’s annexation of Crimea in 2014.
According to the award, the Ukrainian investor is to recover USD 1.1 billion plus interest
from Russia.&lt;/span>&lt;/p>&lt;p style="text-align: justify;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">Oschadbank is a state-owned bank which had investments in Crimea. Similar to the other
investors which were adversely affected by Crimea’s annexation, Oschadbank initiated
investment-treaty arbitration against Russia in 2016. Amongst other BIT claims,
Oschadbank claimed that its assets were unlawfully expropriated by Russia. In 2018, the
tribunal decided in favour of the investor.&lt;/span>&lt;/p>&lt;p style="text-align: justify;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">Subsequently Russia applied to Paris Court of Appeal to set aside the award. Russia
argued that Oschadbank’s investments were made in 1991 whereas the Ukraine-Russia
BIT protects the investments made as of 1 January 1992. The Court of Appeal accepted
Russia’s application and held that the tribunal lacked jurisdiction. Accordingly, the Court
of Appeal set aside the award.&lt;/span>&lt;/p>&lt;p style="text-align: justify;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">In its recent ruling, on 7 December 2022, Court of Cassation overturned the Court of
Appeal’s decision and sided with the Ukrainian investor. The Court of Cassation held that
it was not within the court’s power to review this issue as it concerned the merits of the
case.With this decision, Ukrainian investors are compensated in all publicly available
investment-treaty cases regarding their Crimean war-related claims.&lt;/span>&lt;/p>&lt;p style="text-align: justify;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">&lt;br>&lt;/span>&lt;/p>&lt;p style="text-align: justify;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">&lt;strong>The Court of Cassation Decided that Arbitration Awards Granting Compound
Interest Were Not Against Public Policy&lt;/strong>&lt;/span>&lt;/p>&lt;p style="text-align: justify;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">With its decision dated 16 June 2022 and numbered 2020/7985, the 11th Civil Chamber of
the Court of Cassation upheld the first instance and Court of Appeal’s decisions which
granted the enforcement of an arbitral award.&lt;/span>&lt;/p>&lt;p style="text-align: justify;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">The first instance court granted leave for the enforcement of an arbitral award, holding
that (a) an arbitration agreement executed by referring to the arbitration clause in a
charter party is valid, (b) objections to the constitution of the tribunal which were not
raised during the arbitration proceedings could not constitute a bar to the recognition of
the arbitral award at the enforcement stage, and (c) awards granting compound interest
do not constitute a breach of public policy.&lt;/span>&lt;/p>&lt;p style="text-align: justify;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">Following this, the Regional Court of Appeal rejected the respondent’s appeal. Finally, the
Court of Cassation confirmed both of these judgments and reinforced its precedent that
arbitration agreements incorporated by reference were valid. In addition, the Court of
Cassation held that objections as to tribunal’s constitution should be raised during the
arbitration proceedings, and that awards which grant compound interest claims could not
be denied recognition on the basis that they were against public policy.&lt;/span>&lt;/p>&lt;p style="text-align: justify;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">&lt;br>&lt;/span>&lt;/p>&lt;p style="text-align: justify;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">&lt;strong>What Happened in Turkish Arbitration in December 2022?&lt;/strong>&lt;/span>&lt;/p>&lt;p style="text-align: justify;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">On 22 December 2022, the Eskişehir Mediation and Arbitration Panel was organized in
cooperation with the Eskişehir Bar Association and the Istanbul Arbitration Centre. In the
first session chaired by Assoc. Prof. Dr. Mesut Aygün, Dr. Onur Yüksel gave a
presentation on “Resolution of Disputes through Mediation” and Yasin Ekmen gave a
presentation on “Why Arbitration: Advantages of Arbitration”. In addition, Dr. Burcu İrge
Erdoğan discussed “Drafting Arbitration Agreements and Their Significance”.&lt;/span>&lt;/p>

Paris Court of Cassation upheld the investment-treaty award rendered by the Permanent Court of Arbitration, which requires Russia to compensate for the losses incurred by a Ukrainian bank, Oschadbank, as a result of Russia’s annexation of Crimea in 2014. According to the award, the Ukrainian investor is to recover USD 1.1 billion plus interest from Russia.

Akıncı Arbitration

Professor Dr Ziya
 Akıncı, is the founding partner of Akinci. He has acted as an arbitrator and
 counsel in numerous ad-hoc and institutional international arbitration cases, including
 ones performed under the rules of ICC, UNCITRAL, ICSID, TRAC, ITO and others.
 Prof. Akinci is currently the president of the Istanbul Arbitration Centre
 (ISTAC) and the most sought-after Turkish arbitrator.&nbsp;He has for years
 been recognized by various legal directories as a "leading
 individual" in international arbitration, dispute resolution and
 construction.&nbsp; He is now the most popular choice from Turkey amongst
 candidates for arbitrator in arbitration tribunals around the world.&nbsp;
 Professor Akıncı is a native Turkish speaker and is fluent in English, with
 command of German.

&nbsp; 

As arbitrator,
 party-counsel and expert, Professor Akıncı has acted under institutional
 arbitration rules including, among others, those of UNCITRAL, ICC, ICSID, the
 London Court of International Arbitration (“LCIA”), SCC, ITO and the Tehran
 Regional Arbitration Centre.&nbsp; Professor Akıncı is a member of the ICC and
 has been a member since 2006.&nbsp; He is also a member of the LCIA,
 International Bar Association, International Trademark Association, the Swiss
 Arbitration Association, the Turkish branch of the Swedish Chamber of Commerce
 and the Turkish-Scandinavian Businessmen's Association, and is an honorary
 member of the Swiss Arbitration Academy.&nbsp;

&nbsp; 

Professor Akıncı
 also has substantial experience in cross-border M&amp;A projects and local and
 cross-border corporate law. Professor Akıncı has written extensively,
 including books and articles, about international arbitration, construction
 disputes, international business, contract and transportation law. He
 also teaches international arbitration and contract law at Istanbul’s
 prestigious Galatasaray University Faculty of Law. Practice Areas &amp; Work Department

Arbitration

Construction

Litigation

&nbsp; 

Languages

Turkish

English

French

German

&nbsp; 

Memberships

Istanbul Bar

Istanbul Arbitration Centre, President

Akıncı Law Office is an international
 law firm, based in Istanbul Turkey, committed to providing high-quality legal
 service both in international and domestic practices. We provide specialized
 legal services to prominent local firms as well as to well-known corporations
 around the world. Akıncı Law Office is listed as one of the recommended law
 firms in the field of dispute resolution by Legal 500 and in the field of arbitration by Gar 100.

&nbsp; 

We assist our clients quickly and
 cost-efficiently with immediate advice and help in most countries throughout
 the World. Our clients range from public institutions, internationally renowned
 firms to small businesses and individual entrepreneurs.

&nbsp; 

Our main practice areas are
 international arbitration, foreign investment law mergers and acquisitions,
 international construction law, international business law, company and
 corporate law and employment law.

Akıncı Law Office

Founding Partner

Ms Beril Kasap graduated from
Bilkent University with an Honours degree in Law. Ms. Kasap has been a member
of Akinci’s international and commercial arbitration team, working mainly on
commercial, construction and investment cases. She actively works on every
stage of the dispute resolution process such as preparation for cases,
communications with the funders for potential ICSID cases, drafts of the
written submissions and preparation for the hearings. She has attended several
hearings including ICC and ICSID cases. Ms Kasap has been admitted to Istanbul
Bar since September 2021. Ms Kasap is a native Turkish speaker and is fluent in
English. Practice Areas &amp; Work Department

International Dispute Resolution

Investment Disputes

Construction Disputes

&nbsp; 

Languages

English

Turkish

&nbsp; 

Memberships

Istanbul Bar Association

Associate

In an economically strained climate, be it with the aftermath of the Covid-19 Pandemic or the rising inflation rates causing price increases and economic hardship, the cost of arbitration is a factor that has become ever more prevalent.

ICC - Partial Award on Costs Where a Party Defaults in Paying its Share of the Advance Payment

&lt;p style="text-align: justify;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 16px;">Tahkim şartı bulunan uyuşmazlıklarda ihtiyati tedbir kararına karşı yapılan itirazın hangi
merci tarafından değerlendirileceği konusunda Bölge Adliye Mahkemesi’nin dairelerinin
çelişkili kararları bulunduğunu tespit eden İstanbul Bölge Adliye Mahkemesi Başkanlar
Kurulu, çelişkilerin giderilmesi için Yargıtay’a başvurmuştur. Başvurunun ardından Yargıtay,
itiraza ilişkin kararın ihtiyati tedbir kararını veren ilk derece mahkemesi tarafından mı,
yoksa asıl uyuşmazlığın görüldüğü yabancı hakem heyeti tarafından mı değerlendirilmesi
gerektiğini incelemiştir.&lt;/span>&lt;/p>&lt;p style="text-align: justify;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 16px;">Bu kapsamda, Yargıtay 6. Hukuk Dairesi, 12 Ekim 2022 tarihli ve 2022/3529 E. sayılı
kararında yabancılık unsuru içeren tahkime tabi bir uyuşmazlığa ilişkin olarak Türk
mahkemelerince verilen geçici hukuki koruma tedbiri kararına yapılan itiraza Türk
mahkemelerinin bakmaya yetkili olduğuna karar vermiştir.&lt;/span>&lt;/p>

Tahkim şartı bulunan uyuşmazlıklarda ihtiyati tedbir kararına karşı yapılan itirazın hangi merci tarafından değerlendirileceği konusunda Bölge Adliye Mahkemesi’nin dairelerinin çelişkili kararları bulunduğunu tespit eden İstanbul Bölge Adliye Mahkemesi Başkanlar Kurulu, çelişkilerin giderilmesi için Yargıtay’a başvurmuştur.

Yargıtay, Tahkim Şartı Bulunan Uyuşmazlıklarda İhtiyati Tedbir Kararına İtiraz Halinde Devlet Mahkemelerinin Yetkili Olduğuna Karar Verdi

&lt;p style="text-align: justify;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 16px;">The Board of Presidents of the Istanbul Regional Court of Appeals (the“Board”) determined
that there was an inconsistency between the judgments rendered by different chambers of
the Istanbul Regional Court of Appeals on whether the objection against the interim
injunction decision should be heard by the court of first instance that issued the decision or
by the foreign arbitration tribunal where the actual dispute is heard. To resolve this
inconsistency, the Board applied to the Court of Cassation.&lt;/span>&lt;/p>&lt;p style="text-align: justify;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 16px;">In its decision dated 12 October 2022 and numbered 2022/3529 E., the 6th Civil Chamber of
the Court of Cassation, in relation to a dispute which was subject to international arbitration,
unanimously decided that the Turkish courts were competent to hear the objection
regarding the interim injunction issued by the Turkish courts.&lt;/span>&lt;/p>

The Board of Presidents of the Istanbul Regional Court of Appeals (the“Board”) determined that there was an inconsistency between the judgments rendered by different chambers of the Istanbul Regional Court of Appeals on whether the objection against the interim injunction decision should be heard by the court of first instance that issued the decision or by the foreign arbitration tribunal where the actual dispute is heard.

The 6th Civil Chamber of the Court of Cassation Ruled That The Turkish Courts Were to Review Objections to Interim Injunction Decisions

&lt;p style="text-align: justify; line-height: 2;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">The Singapore International Commercial Court (“SICC”) has released a model clause to enable the
parties to designate the SICC as the competent court for hearing their arbitration-related court cases:&lt;/span>&lt;/p>&lt;p style="text-align: justify; line-height: 2;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">&lt;span style="font-size: 14px;">“&lt;/span>&lt;em>In respect of any court proceedings in Singapore commenced under the International Arbitration Act 1994 in
relation to the arbitration, the parties agree;&lt;/em>&lt;/span>&lt;/p>&lt;p style="text-align: justify; line-height: 2;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">&lt;em>(a) to commence such proceedings before the Singapore International Commercial Court ("the SICC"); and&lt;/em>&lt;/span>&lt;/p>&lt;p style="text-align: justify; line-height: 2;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">&lt;em>(b) in any event, that such proceedings shall be heard and adjudicated by the SICC.&lt;/em>&lt;span style="font-size: 14px;">”&lt;/span>&lt;/span>&lt;/p>&lt;p style="text-align: justify; line-height: 2;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">SICC also stated that this model clause will be a part of the Singapore International Arbitration
Centre’s model arbitration clause. As such, the parties will be able to choose a specialist court to rule
on their arbitration-related litigation cases.&lt;/span>&lt;/p>

The Singapore International Commercial Court (“SICC”) has released a model clause to enable the parties to designate the SICC as the competent court for hearing their arbitration-related court cases: “In respect of any court proceedings in Singapore commenced under the International Arbitration Act 1994 in relation to the arbitration, the parties agree; (a) to commence such proceedings before the Singapore International Commercial Court ("the SICC"); and (b) in any event, that such proceedings shall be heard and adjudicated by the SICC.” SICC also stated that this model clause will be a part of the Singapore International Arbitration Centre’s model arbitration clause. As such, the parties will be able to choose a specialist court to rule on their arbitration-related litigation cases.

Singapore International Commercial Court Released A Model Arbitration Clause

&lt;p style="text-align: justify; line-height: 1.5;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">The possibility of parties settling their dispute by means of amicable settlement can
be initiated at any point during the legal proceedings, be it court or arbitration.
Indeed, amicable settlement is a commercially sensible and viable route if parties are
ever able to see past the acrimony and personal vendetta they may possess against
each other after the dispute crystalises. Heated international construction despites,
for example, will usually have one side refusing to pay for works carried out on site
arguing that works were not carried out to a sufficient level and/or levying delay
damages, whilst the other side will be arguing non payment, delay and disruption.
For international cases, in some locations it may be particularly challenging to
advance the project, and where contractors defeat the odds by carrying out the
works notwithstanding these obstacles, any ensuing dispute, especially arising from
non payment, fuels the animosity between the parties, hindering any fruitful
negotiation process. This is when the parties will be keen to have its ‘day in court’
regardless of the costs at stake.&lt;/span>&lt;/p>&lt;p style="text-align: justify; line-height: 1.5;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">At some point, a party may wish to present a settlement offer to the other party. In
doing so, the offeror may seek to be indemnified against any costs from that point
should the other party reject its offer by fail to beat it at court or in the arbitration.

						In this case, there are a few factors that must be considered by the parties. These
considerations vary, however, depending on the platform in which the offer is being
made – i.e. whether it is being made in court or in arbitration proceedings.&lt;/span>&lt;/p>&lt;p style="text-align: justify; line-height: 1.5;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">&lt;span style="font-size: 14px;">Under the English legal system offers to settle are governed by Part 36 of the Civil
Procedural Rules, which sets out the rules for making offers, withdrawing or changing
offers and accepting offers, as well as the rules for disclosing such offers. A Part 36
offer may be made at any time, including before the commencement of proceedings.
&lt;/span>&lt;span style="font-size: 12px;">(1)&lt;/span>&lt;span style="font-size: 14px;">&lt;span style="font-size: 14px;"> The conditions of a Part 36 offer are broadly that the offer must &lt;/span>&lt;span style="font-size: 12px;">(2)&lt;/span>&lt;span style="font-size: 14px;">;&lt;/span>&lt;/span>&lt;/span>&lt;/p>&lt;ul style="list-style-type: square;">&lt;li style="margin-left: 20px; line-height: 1.5;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">Be in writing.&lt;/span>&lt;/li>&lt;li style="margin-left: 20px; line-height: 1.5;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">Make clear that it is made pursuant to Part 36.&lt;/span>&lt;/li>&lt;li style="margin-left: 20px; line-height: 1.5;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">State whether it relates to the whole claim or to part of it or to an issue that arises
in it and if so to which part or issue and&lt;/span>&lt;/li>&lt;li style="margin-left: 20px; line-height: 1.5;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">State whether it takes into account any counterclaim.&lt;/span>&lt;/li>&lt;/ul>&lt;p style="text-align: justify; line-height: 1.5;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">&lt;span style="font-size: 14px;">Once served on the other Party, an offer may only be withdrawn if the receiving party
has not previously served a notice of acceptance.&lt;/span>&lt;span style="font-size: 12px;">(3)&lt;/span>&lt;/span>&lt;/p>&lt;p style="text-align: justify; line-height: 1.5;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">&lt;span style="font-size: 14px;">A Part 36 offer is accepted by serving a written notice of acceptance.&lt;/span>&lt;span style="font-size: 12px;">(4)&lt;/span>&lt;span style="font-size: 14px;">&lt;span style="font-size: 14px;"> There are
also certain circumstances in which the court’s permission would be required to
accept a Part 36 offer, such as a trial is in process.&lt;/span>&lt;span style="font-size: 12px;">(5)&lt;/span>&lt;span style="font-size: 14px;">&lt;span style="font-size: 14px;"> Where a Part 36 offer is
accepted, the claim will be stayed.&lt;/span>&lt;span style="font-size: 12px;">(6)&lt;/span>&lt;/span>&lt;/span>&lt;/span>&lt;/p>&lt;p style="text-align: justify; line-height: 1.5;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">&lt;span style="font-size: 14px;">The CPR provides that a Part 36 offer will be treated as “without prejudice expect as
to costs”.&lt;/span>&lt;span style="font-size: 12px;">(7)&lt;/span>&lt;span style="font-size: 14px;"> This is a phrase used to indicate that the marked correspondents contain
privileged information as to settlement negotiations and is not to be disclosed to the
court until the issue of costs is to be considered at the end of the merits phase of the
case.&lt;/span>&lt;/span>&lt;/p>&lt;p style="text-align: justify; line-height: 1.5;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">The phrase “without prejudice” is also used to indicate that the correspondence
includes privileged information regarding settlement negotiations and is not to be
disclosed to any third party or the court, but this phrase does not attach any cost
liability or any consequence of accepting or rejecting the same as the phrase “without
prejudice expect as to costs” would do. Taking these phrases in turn;&lt;/span>&lt;/p>&lt;p style="text-align: justify; line-height: 1.5;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">Without Prejudice:&lt;/span>&lt;/p>&lt;p style="text-align: justify; line-height: 1.5;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">Under English law there was a floodgate of litigation on the issue of whether a
particular letter or correspond must be marked specifically with the words “without
prejudice” for the restriction on disclosure to apply. The current rule, which has
been enforced for some time is that where a letter or correspondence contains any
offer to settle or negotiation for the same this will be treated as ‘without prejudice’
and therefore should not be disclosed even if the said letter or correspondence is not
specifically marked with the words ‘without prejudice’.&lt;/span>&lt;/p>&lt;p style="text-align: justify; line-height: 1.5;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">Without Prejudice except as to costs:&lt;/span>&lt;/p>&lt;p style="text-align: justify; line-height: 1.5;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">This phrase carries a different type of importance as it will affect the parties for the
indemnification of costs upon the final award. Where a party makes an offer marked
without prejudice except as to costs they are seeking to be indemnified for costs
from the date of the offer in the event that the offeree rejects the offeror’s offer but
is subsequently awarded a sum by the court at a figure less than that offered by the
offeror. In that case, the offeror will be indemnified against costs from the date of its
offer – even if the award is in its favour of the other party. This is on the proviso
that the conditions for making a Part 36 offer set out above are met. The idea
behind the principle is to encourage parties to settle their disputes if there is a
serious possibility to do so, particularly when considering the cost implications.&lt;/span>&lt;/p>&lt;p style="text-align: justify; line-height: 1.5;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">&lt;span style="font-size: 14px;">In ICC arbitrations under the ICC Rules there are no specific rules for
indemnification of costs in the same manner as a Part 36 offer under English law,
however, there is a similar process that could be followed with the agreement of the
parties that is set out in Part XXII- C of the ‘ICC Note to Parties and Arbitral
Tribunals on the Conduct of the Arbitration Under the ICC Rules of Arbitration’. This
is referred to as ‘Sealed Offers’. The Note sets out that the ICC Secretariat may assist
the Parties to put information relating to certain unaccepted settlement offers and
related correspondences (Sealed Offers) before the arbitral tribunal at the
appropriate stage of the proceedings.&lt;/span>&lt;span style="font-size: 12px;">(8)&lt;/span>&lt;span style="font-size: 14px;">&lt;span style="font-size: 14px;"> The operative words here are “may assist”
– meaning that this is not a mandatory process such as the one under English law.
To further&nbsp;this concept the Note expresses that the arbitral tribunal should consider
consulting the parties at an early stage, such as the first case management
conference, and inviting them “to agree” on a procedure for the possible use of
Sealed Offers in the arbitration. The Note states that “[a]bsent initiative by the
arbitral tribunal in this respect, any party is free to raise this issue.”&lt;/span>&lt;span style="font-size: 12px;">(9)&lt;/span>&lt;span style="font-size: 14px;"> Whilst this
is an incentive for tribunals to encourage parties to make use of the assistance the
ICC may offer in facilitating confidentiality of offers during the arbitration process,
it is clearly not a process that can be enforced on the parties without their consent.
Likewise, it is also not a process that can be used by one party against the other
party in the absence of agreement.&lt;/span>&lt;/span>&lt;/span>&lt;/p>&lt;p style="text-align: justify; line-height: 1.5;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">&lt;span style="font-size: 14px;">Sealed Offers are held by the ICC Secretariat on a confidential basis and may only
be transmitted to the tribunal after the tribunal has resolved all issues of liability
and quantum and is ready to consider the allocation of costs. The provision of costs
is governed by Article 38 of the ICC Rules. At that stage, once the Secretariat
informs the tribunal of the existence of Sealed Offers, the tribunal is invited to
inform the Secretariat whether it accepts to receive the Sealed Offers. Even if the
tribunal decided to accept to receive the Sealed Offers and opens the same, the
Note makes it clear that the tribunal “retains discretion to decide the weight, if
any, should be given to the correspondence...”.&lt;/span>&lt;span style="font-size: 12px;">(10)&lt;/span>&lt;span style="font-size: 14px;"> Therefore, distinct from the
English law process of Part 36 Offers, Sealed Offers do not dispense with the
arbitral tribunal’s discretion on costs and therefore the same risk of cost
indemnification is not present in the ICC.&lt;/span>&lt;/span>&lt;/p>&lt;p style="text-align: justify; line-height: 1.5;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">Accordingly, whilst the level of confidentiality secured under the well-rooted
English legal system of offers made ‘without prejudice’ or ‘without prejudice save
as to costs’ is reflected in the ICC Assistance process of Sealed Offers, the
mandatory cost implication does not follow. It can therefore be said that the ICC
Assistance with Sealed Offers is a positive step of the ICC of encourage parties to
present offers to the tribunal on the issue of costs, which, if applied more
frequently may result in a high number of cases settling sooner rather than later.
In complex international construction cases this may be a good tool to introduce to
the parties at an early stage to allow the parties to contemplate the potential cost
implications in going forward with the arbitration.&lt;/span>&lt;/p>&lt;hr style="line-height: 1.5;">&lt;p style="text-align: justify; line-height: 1.5;">&lt;strong style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">Referances&lt;/strong>&lt;/p>&lt;p style="text-align: justify; line-height: 1.5;">
						&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">&lt;strong>(1)&lt;/strong> CPR 36.7 (1)&lt;/span>&lt;/p>&lt;p style="text-align: justify; line-height: 1.5;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">&lt;strong>(2)&lt;/strong> CPR 36.5(1)(a)-(e)&lt;/span>&lt;/p>&lt;p style="text-align: justify; line-height: 1.5;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">&lt;strong>(3)&lt;/strong> CRP 36.9(1)&lt;/span>&lt;/p>&lt;p style="text-align: justify; line-height: 1.5;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">&lt;strong>(4) &lt;/strong>CPR 36.11(1)&lt;/span>&lt;/p>&lt;p style="text-align: justify; line-height: 1.5;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">&lt;strong>(5)&lt;/strong> CPR 36.11(3)&lt;/span>&lt;/p>&lt;p style="text-align: justify; line-height: 1.5;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">&lt;strong>(6)&lt;/strong> CPR 36.14 (1)&lt;/span>&lt;/p>&lt;p style="text-align: justify; line-height: 1.5;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">&lt;strong>(7)&lt;/strong> CRP 36.16 (1)&lt;/span>&lt;/p>&lt;p style="text-align: justify; line-height: 1.5;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">&lt;strong>(8)&lt;/strong> Part XXII- C – Assistance with the Conduct of the Arbitration - ¶ 227&lt;/span>&lt;/p>&lt;p style="text-align: justify; line-height: 1.5;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">&lt;strong>(9)&lt;/strong> Part XXII- C – Assistance with the Conduct of the Arbitration - ¶ 228&lt;/span>&lt;/p>&lt;p style="text-align: justify; line-height: 1.5;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">&lt;strong>(10)&lt;/strong> Part XXII- C – Assistance with the Conduct of the Arbitration - ¶ 230 g&lt;/span>&lt;/p>

The possibility of parties settling their dispute by means of amicable settlement can be initiated at any point during the legal proceedings, be it court or arbitration. Indeed, amicable settlement is a commercially sensible and viable route if parties are ever able to see past the acrimony and personal vendetta they may possess against each other after the dispute crystalises. Heated international construction despites, for example, will usually have one side refusing to pay for works carried out on site arguing that works were not carried out to a sufficient level and/or levying delay damages, whilst the other side will be arguing non payment, delay and disruption. For international cases, in some locations it may be particularly challenging to advance the project, and where contractors defeat the odds by carrying out the works notwithstanding these obstacles, any ensuing dispute, especially arising from non payment, fuels the animosity between the parties, hindering any fruitful negotiation process. This is when the parties will be keen to have its ‘day in court’ regardless of the costs at stake.

“Without Prejudice Save as to Costs” under English Law verses the Process of “Sealed Offers” under ICC’s Assistance

It is time to take a look back at the first months of 2023 and digest the recent updates and developments happening in the world of international arbitration. Recent court decisions present the new trends and shed light to the future of international arbitration.

Esin Arbitration Quarterly

A party must disclose all evidence that it intends to rely on. A party is not required to disclose all relevant documents in its possession but must only provide documents that it deems appropriate. Parties must act in good faith and state the truth (Article 29, CPC).

Litigation and Enforcement 2023 in Turkey - 2

The main and most commonly used method for resolving large commercial disputes in Turkey is litigation. Civil litigation is based on the principle that the parties to the dispute prepare their case. The judge is bound to hear claims, defences and evidence brought by the parties.

Litigation and Enforcement 2023 in Turkey - 1

Both the International Arbitration Code and Civil Procedural Code contain default procedural rules. However, the majority of these rules are not mandatory, and the parties are free to determine procedural rules in their arbitration agreement or after the arbitration begins. In practice, the parties often agree to apply institutional arbitration rules with their sets of default procedural rules.

Akıncı Arbitration

Popular Articles on Dispute Resolution

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Akıncı Arbitration

Popular Articles on Dispute Resolution

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