Singular Succession. I. Assignment of claim 1 See Baki Kuru, Hukuk Muhakemeleri Usulü V. VI., İstanbul,2001, page 5982; Xxxxx Berber page 100, 221-222 The vast majority of the Turkish legal scholar and case law are of the view that an assignee of a claim is bound by and may rely upon an arbitration agreement which covers that particular claim.2 However, there are different views as to how the binding effect of the arbitration agreement on the assignee should be construed. The Turkish Court of Cassation and most commentators consider that the arbitration agreement governing the assigned claim is included among the “privileges and ancillary rights” which pass on to the assignee along with the assigned claim.3 The alternative view is that a person, who concludes a contract with an arbitration clause, from which assignable claims arise, has not just waived its right of access to courts in relation to its immediate contracting partner.4 Instead, such person, must be deemed as having implicitly waived such right also in relation to any potential assignee (waiver with erga omnes effects). This view is also supported by the argument that any person who concludes a contract that does not prohibit the assignment of claims must be aware that any claim arising from such contract may at any time, without its consent, be assigned to any unspecified third party. The foregoing considerations apply not only to the assignment of claims by way of a contractual disposition, but also mutatis mutandis to the transfer of an individual claim by operation of law (legal succession or subrogation) or as a result of a judicial decision. Therefore, for example, a surety who has paid the creditor and intends to claim an indemnity from the principal debtor, may rely on the arbitration agreement concluded between the principal debtor and the creditor.5 The reason for this is that 2 under Turkish law the surety, up to the amount it has satisfied the creditor’s claims, acquires the creditor’s rights against the principal debtor by operation of law (subrogation).6 A guarantor who makes payment to the creditor in lieu of the principal debtor is entitled to the same treatment as the surety, to the extent that the guarantee is drafted in a similar way to a surety. By contrast, if the guarantor has promised to pay “irrevocably and irrespective of the validity and the legal effects of the secured contract and waiving all rights of objection and defence arising thereof” (“non- accessory” guarantee), there is no trans...
