One of the most critical issues in disputes arising in international maritime transport is the determination of the applicable law, competent court, and arbitration venue. Specifically, London arbitration and English law clauses, found in charterparty (ship charter) agreements and bills of lading, determine in which country and under which legal rules disputes between parties will be resolved.
Upon examining the decisions reflected in Turkish courts, it is observed that these disputes are mostly centered around international jurisdiction objections, the validity of London arbitration clauses, the binding nature of reference clauses in bills of lading, and the insurer’s right of subrogation.
Upon examining the judicial decisions presented, it is seen that the issues of applicable law, competent court, and arbitration venue in international maritime transport and charterparty (ship charter/freight) agreements are fundamental determinants in the resolution of disputes. The decisions are shaped around international jurisdiction objections, the validity of London arbitration clauses, the binding nature of references in bills of lading, and the insurer’s subrogation.
1. International Jurisdiction and Choice of Applicable Law (London Courts and English Law)
In international charterparty and bill of lading disputes, contract clauses authorizing parties to apply English Law and the English High Court of Justice in London are evaluated under Article 47, Article 24/1, and Article 29/1 of Law No. 5718 on International Private and Procedural Law (MÖHUK).
Validity Conditions: In judicial decisions (e.g., Istanbul Regional Court of Appeals 13th Civil Chamber 2021/2325-2022/486; Istanbul 17th Commercial Court 2021/352-2021/459), it has been emphasized that for the jurisdiction clause to be valid, the dispute must involve a foreign element, arise from a debt relationship, be in writing, designate a specific court, and not fall within the exclusive jurisdiction of Turkish courts. Clauses meeting these conditions are considered valid, and Turkish courts issue decisions of non-jurisdiction.
Objections Regarding General Terms and Conditions and the Rule of Good Faith: Plaintiffs’ objections that the jurisdiction and choice of law clauses in bills of lading constitute “general terms and conditions” or “unfair terms” under Articles 20-25 of the Turkish Code of Obligations (TBK) are rejected by the courts. The decisions state that merchants engaged in maritime trade should examine these conditions with the prudence of a reasonable business person, and that these clauses, being common in commercial life, do not violate the rule of good faith (Istanbul Regional Court of Appeals 12th Civil Chamber 2019/785-2019/738; Istanbul Regional Court of Appeals 43rd Civil Chamber 2020/1533-2020/40).
Exceptions and Grounds for Invalidity:
Agency in Turkey: According to the decision of the 11th Civil Chamber of the Court of Appeals dated 2019/3799-2020/3051, Turkish courts have exclusive jurisdiction in disputes arising from contracts made by foreign merchants through their agents in Turkey, in accordance with Article 105/2 of the Turkish Commercial Code (TCC). In this case, the clause granting jurisdiction to a foreign court is deemed invalid.
Asymmetric (Unilateral) Jurisdiction Clauses: In the decision of the 11th Civil Chamber of the Court of Appeals dated 2023/4563-2024/7903, the multi-option jurisdiction clause in the bill of lading, stating that the merchant (party concerned with the cargo) could only file a lawsuit in London, while the carrier could file a lawsuit in any competent judicial authority they wished, was deemed invalid on the grounds that it constituted an unfair clause against the other party to the contract.
2. London Arbitration and the Application of International Arbitration Rules
London arbitration clauses contained in charterparty agreements and incorporated into bills of lading by reference, are scrupulously applied by Turkish courts within the framework of international agreements and domestic law.
New York Convention and ITAC: The Court of Appeals, 11th Civil Chamber (2015/7064-2015/9348 ), ruled that disputes with a foreign element and stipulating London arbitration should be resolved primarily according to the provisions of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Art. 2/1 and 2/2) rather than Law No. 4686 on International Arbitration (ITAC), and that the objection to arbitration should be accepted and a decision of lack of jurisdiction rendered. In other decisions, the validity of arbitration agreements has been confirmed in accordance with Article 4/2 of the ITAC (Istanbul Regional Court of Justice, 43rd Civil Chamber 2022/144-2023/17 ).
Charterparty References and Standard Forms: References on the front or back of bills of lading stating that “charterparty terms (including governing law and arbitration clauses) are incorporated into the bill of lading” are considered valid. For example, in accordance with references to Gencon Form (1994 edition) or LMAA (London Maritime Arbitrators Association) rules, disputes were deemed to be resolved by arbitration in London, and cases were procedurally dismissed (Mersin 3rd Commercial Court 2012/248-2012/48 ; Court of Appeals, 11th Civil Chamber 2014/1949-2014/8429 ).
Condition of Certainty: For an arbitration and governing law clause to be valid, it must be specifically determined. In the decision of Istanbul Regional Court of Justice, 12th Civil Chamber (2017/803-2018/1651 ), alternative and uncertain defenses such as “US courts if COGSA applies, otherwise English law and courts” were rejected on the grounds that they did not contain a valid arbitration agreement, and Turkish courts were found to have jurisdiction.
3. Binding Nature of the Bill of Lading and Subrogation of the Insurer
In international carriage, where a separate freight contract is not drawn up or where the bill of lading refers to a charterparty, the bill of lading is taken as the basis in the legal relationship between the carrier and the bill of lading holder, in accordance with Article 1228 and Article 1237 of the TCC (Turkish Commercial Code).
Upon endorsement of the bill of lading, the English Law, London Courts, or London Arbitration clauses contained therein are binding on the consignee who takes over the cargo.
In accordance with Article 1472 of the TCC, by virtue of the principle of subrogation, insurance companies that are subrogated to the rights of their insured by paying the damage amount are also considered bound by the jurisdiction and arbitration clauses in the bill of lading or the referenced charterparty (Istanbul Regional Court of Justice, 13th Civil Chamber 2019/1905-2019/1658 ; Istanbul Regional Court of Justice, 12th Civil Chamber 2018/2026-2020/1404 ).
Additional Context from Secondary Sources (This section is compiled from decisions that are not directly based on charterparty texts but provide secondary information regarding jurisdiction/arbitration clauses in international maritime transport documents, bills of lading, and general commercial contracts.)
Different Foreign Court Selections: Not only London courts; foreign court jurisdiction clauses such as Singapore Courts and US Federal Courts (Court of Cassation, 11th Civil Chamber 2015/11230-2015/10685 ), Marseilles Commercial Courts (Istanbul Regional Court of Justice, 12th Civil Chamber 2020/147-2020/233 ), or the Southern District Court of New York (Istanbul Regional Court of Justice, 43rd Civil Chamber 2024/1747-2025/1913 ) specified in bills of lading are also considered valid within the scope of Article 47 of the MÖHUK (Law on Private International Law and Procedural Law), resulting in decisions of lack of jurisdiction by Turkish courts.
Relationship between Arbitration and Bankruptcy Proceedings: In the decisions of the 23rd Civil Chamber of the Court of Cassation (2015/397-2016/2509 and 2016/5439-2019/1329 ), it was emphasized that in commercial disputes where the contract includes a London International Arbitration Court clause, the creditor cannot directly initiate bankruptcy proceedings in Turkey; they must first obtain a decision proving the existence of the claim at the agreed arbitration venue, and that the bankruptcy decision, due to state sovereignty, must be rendered by Turkish courts.
Definitiveness of the Arbitration Clause: In the decision no. 2024/5356-2025/4827 of the 11th Civil Chamber of the Court of Cassation (in a distributorship agreement dispute), the simultaneous stipulation of both ICC London arbitration and the jurisdiction of English courts in the contract was found contradictory; the arbitration clause was deemed invalid and the request for enforcement was rejected due to the arbitration intention not being “clear enough to leave no room for doubt”. This situation demonstrates the necessity of drafting jurisdiction and arbitration clauses in international contracts with clarity to avoid contradictions.
Combined Transport and Independent Claim Allegations: The plaintiffs’ claims that the transport was combined carriage, that the damage occurred during port storage (11th Civil Chamber of the Court of Cassation 2018/3029-2019/1043 ) or that the dispute was an independent commercial claim related to freight refund (Istanbul Regional Court of Justice, 13th Civil Chamber 2021/1564-2022/378 ), were rejected on the grounds that the dispute was fundamentally based on a contract of carriage (bill of lading), and foreign court/law clauses were strictly applied.
Charterparty sözleşmesinde İngiliz hukuku seçilirse Türk mahkemeleri yetkisiz mi olur?
Çoğu durumda evet. Taraflar İngiliz hukukunu ve Londra mahkemelerini seçmişse Türk mahkemeleri MÖHUK m.47 gereği yetkisizlik kararı verebilir. Ancak sözleşme Türkiye’deki bir acente aracılığıyla yapılmışsa bu durum değişebilir.
Konişmentoda yazan Londra tahkimi yük sahibini bağlar mı?
Evet. Konişmento charterparty sözleşmesine atıf yapıyorsa tahkim şartı yük sahibini bağlayabilir. Mahkemeler bu tür atıfları uluslararası deniz ticaretinin yerleşik uygulaması olarak kabul etmektedir.
Sigorta şirketi Londra tahkim şartına rağmen Türkiye’de dava açabilir mi?
Genellikle hayır. Sigorta şirketi TTK m.1472 gereği sigortalının haklarına halef olduğundan konişmentodaki tahkim veya yetki şartlarıyla bağlı kabul edilir.
Alternatif yetki klozları neden geçersiz sayılabilir?
Yetki veya tahkim şartının geçerli olması için açık ve kesin olması gerekir. Birden fazla mahkemeyi alternatifli şekilde gösteren veya çelişkili hükümler içeren düzenlemeler geçersiz sayılabilir.
Asimetrik yetki şartı nedir?
Taraflardan birinin yalnızca belirli bir mahkemede dava açabildiği, diğer tarafın ise farklı mahkemeler arasında seçim yapabildiği klozlardır. Yargıtay bu tür şartları bazı durumlarda haksız şart kabul etmektedir.
Charterparty sözleşmesi ile konişmento arasında fark nedir?
Charterparty geminin kiralanmasını düzenleyen ana sözleşmedir. Konişmento ise taşıma sırasında düzenlenen ve yük üzerindeki hakları gösteren ticari belgedir. Ancak konişmento çoğu zaman charterparty hükümlerine atıf yapar.
Why is Expert Maritime Commercial Law Attorney Support Necessary?
International maritime transport disputes concern not only Turkish law but also many different legal systems simultaneously.
In these cases, the following regulations are often applied together:
Turkish Commercial Code
Rules of Private International Law
London arbitration rules (LMAA)
English maritime law
New York Arbitration Convention
Therefore, in charterparty and bill of lading disputes, working with an expert maritime lawyer is of great importance.
Professional legal support is particularly required in the following matters:
international jurisdiction objections
London arbitration processes
ship arrest cases
freight and demurrage disputes
insurer’s subrogation claims
At this point, 2M Hukuk Law Office, with its expert staff in maritime law, provides comprehensive legal support in contract drafting, consultancy, and litigation processes, especially for companies seeking an Istanbul maritime law lawyer, Tuzla maritime lawyer, Gebze maritime lawyer, and Yalova maritime law lawyer.
In disputes arising in international maritime transport, legal consultancy sought at an early stage plays a critical role in preventing high-cost and lengthy lawsuits.
