'36. On 3rd October 2003 the Arbitral Tribunal sent the Parties Procedural Order No. 2 on the Language of the Arbitration. The dispositive part of the Order reads as follows:

The Respondent's request in order that the arbitration should be conducted in the Turkish language is rejected.

The present arbitration shall be conducted in the English language in accordance with Article 36(b), fourth and eleventh sub-paragraphs, of the Implementation Contract and Article 16 of the ICC Rules.

The Arbitral Tribunal based its decision on the following main findings:

(i) the issue of language was to be properly regarded as one of procedure (as opposed to one relating to the merits of the dispute);

it was therefore not governed by Turkish law under the express terms of Art. 36(e) of the Implementation Contract [containing the dispute resolution provisions];

(ii) the Turkish Law No. 805 of 1926 … prayed in aid by the Respondent was not applicable in an arbitration, the place of which was in Switzerland;

such statute was not, in any event, intended to deal with the language of any arbitrations; the language of arbitration was rather dealt with by two other Turkish statutes, namely Art. 4(2) of the Turkish Law No. 4501 Regarding Principles to Be Adhered to in Case Arbitration Proceedings Are Resorted to in Disputes Arising from Concession Contracts Relating to Public Services … and Art. 10(c) of the International Arbitration Act of 2001 …, both of which were based on the principle of freedom of language;

(iii) there was no proof that the provisions of the Turkish Law No. 805 represented international public policy from the point of view of Turkish law itself;

(iv) there were no provisions of public policy applicable before an arbitral tribunal sitting in Geneva and dealing with the language in which an arbitration was to be conducted.

Despite this Order, the Respondent continued to file all its briefs and correspondence both in the English and the Turkish language.

………

The Second Issue - Whether the Request for Arbitration drafted in the English language is to be dismissed as being contrary to mandatory provisions of Turkish law applicable to arbitrations to which two Turkish nationals are a party

333. The second point to be decided arises out of a procedural objection raised by the Respondent as to the language of the arbitration. The Respondent submitted that the Request for Arbitration ought to have been filed in the Turkish language … and that this arbitration would have to be conducted in the Turkish language ...

334. The Arbitral Tribunal made its ruling on the language of the arbitration in Order No. 2 … (See paragraph 36 above), deciding that the arbitration would be conducted in the English language in accordance with the arbitration agreement contained in the Implementation Contract ...

335. However, the Arbitral Tribunal in that Order expressly left open the question whether the fact that the Request for Arbitration had not been filed in the Turkish language would have any consequences on the validity of the claims. As the Respondent submitted that the Request for Arbitration had to be dismissed on the basis that it had not been filed in the Turkish language, the Arbitral Tribunal ruled that such a point would be decided in this Award.

336. The question of the language in which a procedural act such as the Request for Arbitration is to be drafted is a question of form (viz. procedure), not one of substance. The Arbitral Tribunal held that the provisions of the Turkish Law No. 805 of 1926 did not apply to an international arbitration the place of which was outside Turkey, which finding can only be restated by the Tribunal in the present Award.

As the Arbitral Tribunal noted in its Order this is all the more so in view of the fact that the recent Turkish Law No. 4686 of 2001 on International Arbitration accepted the principle of the freedom of language in its Article 10(c). English would qualify without any doubts as the language of a country which is recognised by the Republic of Turkey within the meaning of this provision.

Finally, the Arbitral Tribunal noted in Order No. 2 that the Respondent had failed to prove that the provisions of Law No. 805 were to be regarded as embodying rules of international public policy of such importance as to be applicable before, and binding on, an arbitral tribunal sitting in Switzerland.

337. Moreover, even if, contrary to the Arbitral Tribunal's opinion, the provisions of Law No. 805 were to apply to arbitration in general and to this arbitration in particular, there would be serious difficulties in the way of a decision dismissing [Respondent]'s claims on the merits. Such a sanction would not, in the Arbitral Tribunal's opinion, be imposed by Article 4 of the said Law, which contains no words referring to judicial proceedings of any kind, let alone arbitration.

338. Therefore, the Respondent's objection based on the Turkish Law No. 805 of 1926 is hereby dismissed by the Arbitral Tribunal.'