This is in stark contrast to the treatment of cases in the third and fourth categories of the above categories. These categories relate to “two contracts”; Therefore, clear words are needed to include the compromise clause. This is because arbitration clauses are not directly relevant to the primary purpose of the contract, but are ancillary provisions that supersede the jurisdiction of the courts. In this case, there were significant difficulties in including the compromise clause of the main contract in the subcontracting, as this requires “significant changes” to the wording. In any event, the takeaway is that, if a compromise clause is to be introduced by reference, the main contract must explicitly state that fact in order to ensure that the arbitration provision is fully implemented. There are controversial opinions in Turkish law and in the right to compare arbitration clauses, which are introduced by reference. This is particularly evident in cases where there is no specific reference, but only a general reference to the standard contract that contains the compromise clause. According to one observation, consent to conciliation is not considered explicit in cases where there is no direct or specific reference to the compromise clause, but only a general reference to the standard agreement or terms and conditions, including the compromise clause. Since the parties waive their right to apply by signing the arbitration agreement to the national courts, consent to conciliation should be assured. General references to standard contracts contain only substantive provisions; It is therefore necessary to explicitly refer to the compromise clause.
On the contrary, explicit reference to a compromise clause should not be mandatory in the practice of international trade. With regard to the concept of “cautious trader”, it is clear that the reference to a particular text makes such a text within the framework of the main agreement, and the agreement on the text means that the person in favour knows the contents of the documents in their entirety.Back to Blog