Interim Measures Obtained From Local Courts in Construction Disputes and Their Legal Consequences Over the Merits of International and National Arbitration Cases

I. Introduction

Failure to complete construction projects on time can sometimes occur through no fault of the contractors or beyond their control. The main reasons for these delays include (i) force majeure events such as pandemics, wars, terrorist attacks, etc.[1] and (iii) non-payment of work changes and progress payments requested by the employer. In the presence of one or more of these reasons, in ongoing construction projects, sometimes, through no fault of the contractors, employers may request the termination of the contracts in question based on the provisions in the construction contracts and the unfair monetization of the letters of guarantee provided by the contractor for the project in question.

In such a case, there are some legal remedies that contractors can pursue to secure themselves.  The main one is to apply for an interim injunction to the competent court to prevent the encashment of the letters of guarantee provided for the project. On the other hand, contractors may also apply to the competent court for an interim attachment to secure their progress payments arising during the project but not paid by the employer.

At this point, it should be noted that today, international arbitration is envisaged as a dispute resolution authority instead of courts in construction contracts concluded between contractors and employers in construction projects of international nature. The procedural rules of such arbitration may be governed by an institutional arbitration such as the International Chamber of Commerce (ICC) or the London Court of International Arbitration (LCIA), or the dispute may be submitted to ad hoc arbitration without being subject to any institutional arbitration.

Even where there is such an arbitration clause in the construction contracts, the contractors may apply to the local courts for an interim injunction or an interim attachment to prevent the employer from unfairly foreclosing the letters of guarantee they have provided or to secure their unpaid progress payments, and they may file the arbitration proceedings after the court grants this interim measure.  As will be discussed in detail below, both our domestic legislation (e.g. Art. 397, Art. 414(4) of the Code of Civil Procedure, Art. 6 of the International Arbitration Law) and the arbitration rules of international institutional arbitration institutions (e.g. Art. 28 of the ICC Arbitration Rules, Art. 25.3 of the LCIA Arbitration Rules) allow for this.

The period of time within which contractors have to file arbitration proceedings following an interim injunction or preliminary attachment order obtained from the local court is also one of the most current legal debates, where the broad or narrow interpretation of the relevant provisions of the International Arbitration Law (e.g. Art. 10 IAA) determines the period of time within which arbitration proceedings have to be filed following an interim injunction or preliminary attachment order.

Finally, it should be noted that today, many international construction contracts, particularly those drafted in accordance with FIDIC rules, include multi-tiered pre-arbitration dispute resolution procedures.  In construction contracts, the application to these pre-arbitration dispute resolution mechanisms is sometimes made mandatory by the parties, and sometimes they are regulated as an optional right before arbitration.  If such mechanisms are mandatorily regulated in construction contracts, the question arises whether the arbitral tribunal can accept the arbitration case, since the contractor is required to file an arbitration case on the merits of the dispute within a certain period of time following the interim injunction or interim attachment decision obtained from the local court, and therefore the arbitration case must have been filed without following the mandatory pre-arbitration remedy mechanism.

II. Legal remedies available to contractors in relation to interim measures of protection

Provisions regarding the ability to obtain injunctive relief or injunctive attachment from local courts even in the presence of an arbitration clause in construction contracts are regulated in our domestic legislation under the International Arbitration Law ("IAA") and the Code of Civil Procedure ("CCP"). Pursuant to Article 1 of the IAA, it is expressly stipulated that even in cases where the IAA is not applied by the parties and the seat of arbitration is outside Turkey, Article 6 of the IAA regarding the request for interim injunction or interim attachment from the local courts shall apply. [2]

Pursuant to Article 6 of the IAA, "A party's request for an interim injunction or an interim attachment from the court before or during the arbitration proceedings and the court's granting of such an injunction or attachment shall not constitute a breach of the arbitration agreement".

Similarly, Article 414 of the CCP stipulates that the parties may request an interim injunction or an interim attachment from the competent court before the commencement of the internal arbitration or during the arbitration proceedings, and that the interim injunction or interim attachment granted may be modified or revoked by the arbitral tribunal hearing the arbitration case. [3]

In parallel with these regulations in our domestic legislation, institutional arbitration rules such as the ICC and LCIA clearly stipulate that even before the commencement of the arbitration proceedings or after the commencement of the arbitration proceedings, the parties may apply to the local courts for interim injunction or interim attachment, if necessary, and that such application does not annul the parties' intention to arbitrate. For example, pursuant to Article 28 of the ICC Arbitration Rules, the parties may apply to a competent judicial authority for interim measures of legal protection before and, where appropriate, even after the referral of the file to the arbitral tribunal. An application by a party to a judicial authority for the aforementioned measures or for the enforcement of such measures by the arbitral tribunal shall not be deemed a breach of the arbitration agreement or a waiver of the arbitration agreement and shall not affect the powers granted to the arbitral tribunal. A similar provision is found in Article 25.3 of the LCIA Arbitration Rules. [4]

A. Scope of provisional protection measures to be rendered by local courts

According to Article 262 of the Swiss Code of Civil Procedure, provisional protection measures are as follows: (i) injunction, (ii) decision on the elimination of the unlawful situation, (iii) decision on the institutions or third parties performing the registry procedures, (iv) decision on performance in kind, (v) decision on cash payment in cases stipulated by law.

Turkish law regulates temporary protection measures under three main headings from Art. 389 to Art. 406 of the CCP. These are (i) Injunction, (ii) Discovery of Evidence and (iii) Other Interim Legal Protection (e.g. interim attachment).

B. Requirements for granting interim measures by local courts

Both the Swiss Code of Civil Procedure and the CCP stipulate certain conditions for local courts to grant interim measures of protection.  Pursuant to Article 261 of the Swiss Code of Civil Procedure, in order for a local court to grant an interim measure, (i) a right of the applicant for the measure has been violated or it is clearly foreseeable that it will be violated, and (ii) the violation is likely to cause irreparable damage.[5]  On the other hand, pursuant to Article 389 of the CCP, in order to obtain an interim measure of protection from a local court in Turkey, (i) the obtaining of the right will become significantly difficult or completely impossible due to a change in the current situation, or (ii) there is a fear that an inconvenience or serious damage will arise due to delay.[6]

III. The Time Periods for the Filing of Arbitration Proceedings Following Interim Injunction Decisions of Local Courts and Examples from Practice

In some jurisdictions, there is no time limit for filing a lawsuit on the merits following the interim injunction obtained from the local court, while in others, this time limit is determined by the court that issued the injunction. For example, in Swiss law, the time period for the party applying for an interim injunction to file a lawsuit on the merits after the injunction is granted is determined by the court that granted the injunction pursuant to Article 261 of the Swiss Code of Civil Procedure.[7]  In the event that the competent court determines such a period and a lawsuit on the merits is not filed within this period, the interim injunction automatically disappears.

In our law, the relevant periods are explicitly regulated in the CCP and the IAA. Pursuant to Article 397 of the CCP, if the interim injunction is granted before the lawsuit on the merits is filed, the person requesting the injunction is obliged to file the lawsuit on the merits within two weeks from the date of requesting the enforcement of this decision, and to submit the documents regarding the filing of the lawsuit to the officer who enforces the decision and have them placed in the file and receive a document in return.[8] Otherwise, the measure will be lifted automatically. In the IAA, this period is regulated as 30 days. Pursuant to Article 10(A) of the IAA, if a party has obtained an interim injunction or interim attachment order from the court, it must file the arbitration case within thirty days. Otherwise, the interim injunction or interim attachment will be automatically lifted.[9]

Here, we would first like to express our opinion that the "main action" referred to in Article 397 of the CCP covers not only the actions before the court, but also the action to be filed within the scope of the arbitration proceedings, if there is an arbitration clause in the contract between the parties. Therefore, in the Turkish legislation, two different time periods are stipulated in the CCP and the IAA regarding the lawsuit to be filed on the merits after obtaining an injunction from the local court. These two different time periods in these two different legislations raise the question of which time period should be taken as the basis for the filing of the arbitration case following the injunction obtained from the Turkish court in cases where the seat of arbitration is abroad and the IAA is not applied by the parties.

In our opinion, the answer to this question depends on a clear determination of the scope of application of the IAA. Art. 1 of the IAA regulates the scope of application of this Law.[10] Pursuant to Art. 1 of the IAA , the IAA shall apply to disputes that have a foreign element and where the place of arbitration is determined as Turkey or where the provisions of this Law are chosen by the parties or by the arbitrator or arbitral tribunal. On the other hand, it is stated that Articles 5 and 6 of the IAA shall also apply in cases where the seat of arbitration is determined outside of Turkey. As mentioned above, Article 6 of the IAA essentially regulates the right of a party to request an interim injunction or an interim attachment from the court before or during the arbitration proceedings.

While the legislator has clearly stated that Article 6 of the IAA will be applied even when the seat of arbitration is outside of Turkey, Article 10(A) of the IAA, which stipulates that the arbitration proceedings must be initiated within 30 days after the interim injunction is obtained from the court, is not included within the scope of this application. In this case, should the courts take the two-week period under Article 397 of the CCP or the 30-day period under Article 10(A) of the IAA as the basis for initiating the main proceedings?

In a recent local court decision regarding the rejection of the objection against the interim injunction decision, the following statements were included as one of the grounds for rejection, stating that the arbitration case on the merits was filed within the two-week period stipulated in Article 397(1) of the CCP

"...although the injunction granted by our court was objected to by the party against whom the injunction was granted, Article 397(1) of the CCP stipulates that after the issuance of an interim injunction, the parties seeking interim injunction shall file an arbitration case before the International Chamber of Commerce ("ICC"), since the merits of the dispute are subject to arbitration proceedings, pursuant to Article 414(4) of the CCP. Since the objection can be evaluated and examined by the aforementioned authority that looks into the arbitration proceedings pursuant to Article 414/4 of the CCP, it is necessary to rule that there is no need for a decision by our court."[11] 

On the other hand, in a Regional Court of Appeal decision, the following evaluation was made regarding the arbitration case filed on the merits after the interim injunction decision was taken

"Article 6 of the International Arbitration Law No. 4686 stipulates that if one of the parties requests an interim injunction or an interim attachment from the court before or during the arbitration proceedings and the court decides on such an injunction or attachment, it shall not constitute a breach of the arbitration agreement.

It is a legal requirement that an interim injunction may be requested before the Turkish courts before the arbitration case and the court may evaluate this issue. However, as it is understood that the arbitration case was filed in the International Court of Arbitration on 13/10/2020 before the objection to the interim injunction decision, the objection to the injunction after the lawsuit is filed can be evaluated by the court / arbitral tribunal that will examine the merits of the case, and there is no inconsistency in the local court decision." [12]

The above-mentioned decision of the Regional Court of Appeal states that "arbitration was applied for within the time limit" and does not explicitly state whether this period is the two-week period under Art. 397 CCP or the 30-day period under Art. 10(A) IAA. Therefore, it is understood that there is not yet a uniform practice in the Turkish jurisdiction as to whether the two-week period under Article 397(1) of the CCP or the 30-day period under Article 10(A) of the IAA applies.  

We are of the opinion that the different decisions on this issue can be resolved by bringing Article 10(A) of the IAA within the scope of Article 1 of the IAA.  When Article 10(A) of the IAA, which stipulates that arbitration proceedings may be initiated within 30 days following the issuance of an interim injunction, becomes legally enforceable under Article 1 of the IAA even in cases where the parties have not chosen the IAA and the seat of arbitration is outside Turkey, uniformity in the practice regarding this issue may be established and in any case, the 30-day period may be taken as a basis in cases where the merits of the dispute are subject to international arbitration proceedings.

IV. Construction Contracts Including Pre-Arbitral Dispute Resolution Mechanisms and the Legal Consequences of These Processes on Interim Measures of Protection

Recently, especially in construction contracts based on FIDIC rules, it is seen that the parties optionally or compulsorily subject their disputes to "Pre-arbitration Dispute Resolution Mechanisms" ( Pre-arbitration Dispute Resolution Mechanisms ) before arbitration.[13]  In most construction contracts, pre-arbitration dispute resolution mechanisms generally consist of three stages. These stages are: (i) amicable settlement, (ii) dispute resolution by the management board, and (iii) dispute adjudication by the Dispute Adjudication Board.

Although the evaluation of disputes by the dispute resolution board, which is the third stage, is not a judicial activity carried out by arbitral tribunals, the decisions rendered by the dispute resolution board become binding for the parties if the parties do not object to the decision of the dispute resolution board within the periods stipulated in the contract or do not go to arbitration.[14]

A. Filing an Arbitration Case on the Merits of the Dispute without Initiating Pre-Arbitration Dispute Resolution Mechanisms in Cases where Provisional Protection Measures are Obtained from Local Courts

Although pre-arbitration dispute resolution mechanisms are nowadays included in many construction contracts as a mandatory remedy prior to arbitration, as we have mentioned in detail above, in the event that interim measures of protection such as preliminary injunction or interim attachment are obtained from the local courts, in order to maintain the validity of the said interim measure of protection, an arbitration proceeding must be initiated on the merits of the dispute within a period of two weeks from the request for enforcement of the interim injunction pursuant to Art. 397 of the CCP or within a period of 30 days from the issuance of the interim injunction pursuant to Art. 10(A) of the IAA.

In this case, the arbitration proceeding will have to be filed without following the dispute resolution mechanisms that should be followed prior to arbitration. The main reason for this is that pre-arbitral dispute resolution mechanisms are not a "judicial" activity to be carried out by the arbitral tribunal. Another reason is that these mechanisms cannot be realized within a short period of time such as two weeks or 30 days.

B. The Arbitral Tribunal's Jurisdiction in the Event of Arbitration Without Following the Pre-Arbitral Dispute Resolution Mechanisms and the Fate of the Provisional Protection Measure Obtained from the Local Court

In order to preserve the legal validity of interim measures, in the event that arbitration proceedings are initiated within a period of two weeks following the request for enforcement of the interim injunction pursuant to Article 397 of the CCP or within a period of 30 days following the issuance of the interim injunction pursuant to Article 10(A) of the IAA, if the respondent party objects that pre-arbitral dispute mechanisms are not followed, the arbitral tribunals' assessment of this objection may have important legal consequences on the interim injunction or interim attachment decisions taken by the local courts.

In particular, the arbitral tribunal should determine whether the pre-arbitration dispute mechanism is an optional or mandatory right in the construction contract in question. If the pre-arbitration dispute resolution mechanism is optional in the construction contract, then there will be no legal reason preventing the parties from bypassing this procedure and proceeding directly to arbitration.  On the other hand, if the pre-arbitration dispute resolution mechanism is provided as a mandatory remedy in the construction contract, then the arbitral tribunal will have to consider whether the claimant can file the arbitration case without exhausting this remedy and whether it is competent to hear this case by taking into account the issues of "jurisdiction" and "admissibility".

In international arbitration practice, arbitral tribunals make different decisions on this issue.  Some arbitral tribunals have considered the filing of an arbitration case without resorting to pre-arbitration dispute resolution mechanisms, which the parties are obliged to exhaust, as a lack of consent and dismissed the case on the grounds that they lack jurisdiction to hear the case. Other arbitral tribunals, on the other hand, have stated that the filing of an arbitration case without exhausting the mandatory dispute resolution mechanisms does not remove the arbitral tribunal's jurisdiction to hear the case, and that the arbitral tribunal is ultimately authorized to hear the case, but that the mandatory pre-arbitration dispute resolution mechanism should be considered as a matter of "admissibility", and have referred the parties to the pre-arbitration dispute resolution mechanism without dismissing the case, and have considered the completion of this process as a holding issue.

For example, in an ICC arbitration case with a seat in London, England, the arbitral tribunal deemed itself incompetent and dismissed the arbitration case because the arbitration proceeding was filed before the parties had exhausted the pre-arbitration dispute resolution mechanisms required by the FIDIC rules.[15] In another ICC arbitration case with seat of arbitration in Paris, France, the arbitral tribunal ruled that the arbitral tribunal did not lack jurisdiction due to the fact that the arbitration proceedings were initiated without exhausting the pre-arbitration dispute resolution mechanisms that must be exhausted under French law applicable in accordance with the seat of arbitration and that this issue was a matter of "admissibility" and rejected the respondent's objections to lack of jurisdiction.[16] In another ICC arbitration case with seat of arbitration in Zurich, Switzerland,  the arbitral tribunal considered that the pre-arbitration procedures may be related to the arbitral tribunal's jurisdiction or admissibility and held that the failure to fulfill the pre-arbitration mechanism in the concrete case was a matter of admissibility and that the arbitral tribunal was competent to hear the case.[17]

From the arbitral tribunal decisions cited above, it is understood that in the United Kingdom and similar countries where the Anglo-Saxon legal system is applied, the arbitral tribunal rejects the initiation of arbitration proceedings without the completion of pre-arbitration dispute mechanisms on the grounds that the arbitral tribunal does not have jurisdiction to hear the case, while in Switzerland and France, where Continental European law is applied, this issue is considered as a matter of admissibility rather than the jurisdiction of the arbitral tribunal and the arbitral tribunals are authorized to hear the arbitration proceedings initiated in any case.

Due to the fact that the legal system of our country, especially the Law of Obligations and Procedural Law, is predominantly a reflection of the Swiss Law, in an arbitration case where the seat of arbitration is Istanbul or Ankara, the arbitral tribunals may consider the completion of pre-arbitration dispute resolution mechanisms by the parties as a matter of admissibility rather than the rejection of the arbitration case due to lack of jurisdiction.  

More importantly, while there is a legal obligation to file a lawsuit on the merits of the dispute within  two weeks pursuant to Article 397 of the CCP or within 30 days pursuant to  Article 10(A) of the  IAA following the issuance of provisional legal protection measures (interim injunctions or interim attachment orders) by the local courts, it is now a legal requirement to file an arbitration case without initiating pre-arbitral dispute resolution mechanisms or even if these mechanisms have been initiated, they have not yet been completed. 

In such a case, if the arbitral tribunal decides that the arbitral tribunal is no longer authorized on the grounds that the pre-arbitration dispute resolution mechanisms have not been exhausted, it will eliminate the validity of the interim legal protection measures and cause irreparable damages for the claimant party, Instead of a decision of lack of jurisdiction, we are of the opinion that the issue here is not a matter of jurisdiction, but a matter of admissibility, and that it would be more in accordance with equity for the parties to make a pendency decision without dismissing the arbitration case in order to exhaust the pre-arbitration dispute resolution mechanisms, that is, to make the completion of the previous mechanisms a matter of waiting. 

V. Conclusion

Due to Covid-19 or other force majeure events such as war and terrorism, or due to changes in the work requested by the employer and non-payment of progress payments by the employer, sometimes through no fault of the contractors, employers may unfairly terminate the construction contracts in question, resort to penalty clauses in the contract and unfair forfeiture of letters of guarantee.

In such cases, contractors resort to local courts to obtain interim measures of protection such as injunctions or attachments, in particular to prevent the forfeiture of their letters of guarantee or to protect unpaid progress payments.  On the other hand, even though most international construction contracts provide for arbitration as a remedy, there are legal provisions for obtaining injunctions or attachments from local courts.

While there are specific provisions under the CCP and the ICC on obtaining injunctions from local courts prior to arbitration, there are also provisions under institutional arbitration rules such as the ICC, LCIA, etc. that allow for interim measures of protection to be obtained from state courts prior to or during arbitration proceedings. Although Article 397 of the CCP states that a lawsuit on the merits of the dispute must be filed within two weeks from the request for enforcement of the interim injunction or interim attachment order obtained from the local court, Article 10(A) of the IAA sets the said period as 30 days from the injunction order obtained from the local court, and these different periods have led to different practices in the decisions of the Turkish judiciary on this issue.  We are of the opinion that the inclusion of these different applications in Art. 10(A) of the IAA by explicitly including a provision in Art. 1 of the IAA stating that the IAA shall apply even in cases where the IAA is not chosen by the parties and the seat of arbitration is outside of Turkey, and regulating the 30-day period as a single period for the Turkish legislation will uniformize the decisions of the Turkish courts on this issue.

On the other hand, in the event that pre-arbitration dispute resolution mechanisms are mandatorily regulated in construction contracts, it is possible that an interim injunction or an interim attachment order has been previously obtained from the local courts, and that the interim injunction or interim attachment order stipulated in Article 397 of the CCP or Article 10(A) of the IAA has been issued. 10(A) of the CCP or Art. 10(A) of the IAA, the arbitral tribunal should take into account that the arbitration proceeding in question was initiated due to an existing legal obligation, as the arbitral tribunal's dismissal of the case on the grounds of lack of jurisdiction may lead to the loss of the validity of the provisional protection measures granted by the local courts and irreparable irreparable harm for the party benefiting from such protection.  We believe that it would be a fairer decision in terms of protecting the rights and interests of both parties if the arbitral tribunal considers the pre-arbitration dispute resolution mechanism as a matter of admissibility rather than a jurisdictional issue, considers it as a holding issue and directs the parties to complete their dispute resolution mechanisms without rejecting the case.

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SOURCES

Articles

Multi-Tiered Dispute Resolution Clauses, Bernardo M. Cremades

FIDIC Dispute Adjudication Boards - 5 things you need to know, David Moss, Eversheds Sutherland (International) LLP

Court Decisions

Istanbul 19th Commercial Court of First Instance File No. 2020/495 D.İş, Decision No. 2020/495

Istanbul Regional Court of Appeals 15th Civil Chamber File No. 2021/716, Decision No. 2021/606

ICC Arbitration Cases

ICC Case No. 16262 - Partial Award https://www.ibanet.org/article/57470714-a3f7-4db9-9dab-69dfbcb156c9

ICC Case No. 16083 - Interim Award Excerpts https://jusmundi.com/fr/document/decision/pdf/en-icc-case-ndeg-16083-interim-award-in-case-16083-extract

ICC Case No. 14431 - Interim Award https://www.corbett.co.uk/jurisdiction-admissibility-and-fidic/

Websites

https://iccwbo.org/content/uploads/sites/3/2020/04/icc-forcemajeure-hardship-clauses-march2020-tur.pdf

[1] Force majeure is defined in the ICC's current model force majeure clause as follows:

Force Majeure" means that the party affected by such obstacle ("Affected Party")a) the impediment in question is beyond its reasonable control; andb) the obstacle in question could not reasonably have been foreseen at the time of conclusion of the contract; andc) the affected Party cannot reasonably avoid or overcome the effects of the impediment the occurrence of an event or circumstance ("Force Majeure Event") that prevents or hinders a party from fulfilling one or more of its contractual obligations if and to the extent that it proves it." https://iccwbo.org/content/uploads/sites/3/2020/04/icc-forcemajeure-hardship-clauses-march2020-tur.pdf

[2] Art. 1 of the IAA: "This Law shall apply to disputes that have a foreign element and where the place of arbitration is determined as Turkey or where the provisions of this Law are chosen by the parties or the arbitrator or arbitral tribunal. The provisions of Articles 5 and 6 of this Law shall also apply in cases where the place of arbitration is determined outside Turkey."

[3] Article 414(4) of the CCP: "An interim injunction granted by the court upon the request of one of the parties before or during the arbitration proceedings shall, unless otherwise decided, automatically cease to exist upon the arbitral tribunal's or arbitral tribunal's award becoming enforceable or upon the dismissal of the case by the arbitrator or arbitral tribunal." Art. 414(5) of the CCP: "An interim injunction granted by the court may be modified or annulled by the arbitrator or the arbitral tribunal."

[4] LCIA Arbitration Rules Art. 25.3: "A party may apply to the competent local court or other competent legal authority for interim or conservatory measures that the Arbitral Tribunal is authorized to grant pursuant to Article 25(1): (i) before the constitution of the Arbitral Tribunal; and (ii) after the constitution of the Arbitral Tribunal, in exceptional cases and with the consent of the Arbitral Tribunal, until the final award is rendered. After the Commencement Date, the applicant shall promptly notify the Secretariat only of the application for and the decision on such measures in writing before the constitution of the Arbitral Tribunal and the Arbitral Tribunal after the constitution of the Arbitral Tribunal, and in both cases shall communicate the same to all other parties."

[5] Article 261 of the Swiss Code of Civil Procedure: "(1) The court shall grant an interim measure if the claimant proves beyond a reasonable doubt that:

a.     the right held by the right holder is being infringed or will be infringed; and

b.     The harm is likely to cause damage that cannot be easily compensated by the applicant.

(2) The court may not grant an interim injunction if there is a reasonable prospect of protection by the other party."

[6] Article 389 of the Code of Civil Procedure: "(1) An interim injunction may be granted on the subject matter in dispute if there is a fear that it will be significantly difficult or completely impossible to obtain the right due to a change in the current situation, or that an inconvenience or serious damage will arise due to delay. 

(2) The provision of the first paragraph shall also be applicable to non-contentious judicial proceedings to the extent appropriate to their nature."

[7] Article 261 of the Swiss Code of Civil Procedure: "(1) The court shall grant an interim injunction if the requestor proves, to the extent that it can be relied upon, that

a.          The right held by the right holder has been infringed or will be infringed; and

b.          The damage is likely to cause harm that cannot be easily compensated by the applicant.

(2) The court may not grant an interim injunction if there is a reasonable prospect of protection by the other party."

[8] Article 397(1) of the Code of Civil Procedure: "If the interim injunction is granted before the filing of a lawsuit, the person requesting the injunction must file the lawsuit on the merits within two weeks from the date of requesting the enforcement of the injunction and submit the document of the filing of the lawsuit to the officer enforcing the injunction and have it placed in the file and receive a certificate in return. Otherwise, the injunction shall automatically lapse."

[9] Article 10(A) of the International Arbitration Law: "Unless the parties agree otherwise, the arbitration proceedings shall be deemed to have been instituted on the date on which an application for the selection of arbitrators is filed with the civil court of first instance or with the person, institution or organization that will select the arbitrators according to the agreement of the parties, and, if the selection of arbitrators belongs to both parties according to the agreement, on the date on which the claimant selects the arbitrator and notifies the other party to select its own arbitrator; if the agreement specifies the names and surnames of the arbitrator or the arbitrators constituting the arbitral tribunal, on the date of receipt by the other party of the request to resolve the dispute by arbitration.

If one of the parties has obtained an interim injunction or interim attachment order from the court, it must file the arbitration case within thirty days. Otherwise, the interim injunction or interim attachment shall automatically lapse."

[10] Article 1 of the International Arbitration Law: "The purpose of this Law is to regulate the procedures and principles regarding international arbitration.

This Law shall apply to disputes which have a foreign element and where the place of arbitration is determined as Turkey or where the provisions of this Law are chosen by the parties or by the arbitrator or arbitral tribunal.

The provisions of Articles 5 and 6 of this Law shall also apply in cases where the place of arbitration is determined outside Turkey.

This Law shall not apply to disputes concerning rights in rem over immovable property located in Turkey and to disputes which are not subject to the will of the parties.

Pursuant to Law No. 4501 dated 21.1.2000 on the Principles to be Observed in the Event of Arbitration in Disputes Arising from Concession Agreements and Contracts Related to Public Services, the settlement of disputes arising from concession agreements and contracts related to public services where there is a foreign element through international arbitration shall also be subject to this Law.

The provisions of international treaties to which the Republic of Turkey is a party are reserved."

[11] Istanbul 19th Commercial Court of First Instance File No. 2020/495 D.İş, Decision No. 2020/495

[12] Istanbul Regional Court of Appeals 15th Civil Chamber File No. 2021/716, Decision No. 2021/606

[13] Multi-Tiered Dispute Resolution Clauses, Bernardo M. Cremades , p.3

[14] FIDIC Dispute Adjudication Boards - 5 things you need to know, David Moss, Eversheds Sutherland (International) LLP, https://www.lexology.com/library/detail.aspx?g=20149edb-9d40-4c16-ab3e-1a94135644e8

[15] ICC Case No. 16262 - Partial Award   https://www.ibanet.org/article/57470714-a3f7-4db9-9dab-69dfbcb156c9

[16] ICC Case No. 16083 - Interim Award Excerpts https://jusmundi.com/fr/document/decision/pdf/en-icc-case-ndeg-16083-interim-award-in-case-16083-extract

[17] ICC Case No. 14431 - Interim Award https://www.corbett.co.uk/jurisdiction-admissibility-and-fidic/