NEWSLETTER-2017

160 NEWSLETTER 2017 Similarly, in a judgment of the High Court of Calcutta (India) dated 20 March 2012, the Indian law was applied to the arbitration agreement, as well as to the underlying contract 5 . Earlier, the English courts held this point of view, and ruled that where the choice of law for the underlying contract is made, this choice of law should implicitly apply to the arbitration agreement 6 . However, the approach of the English courts has changed recently 7 . Until recently, the Turkish Supreme Court did not declare its opinion on the subject. A dissenting opinion pronounced in a decision in 2000 of the General Assembly of the Civil Chambers of the Su- preme Court stated that the authority to make an arbitration agreement should be determined in accordance with the parties’ choice of law for the underlying contract, which was not Turkish law 8 . In this case, how- ever, the Supreme Court directly applied Turkish law without further discussions as to the applicable law. Determination of the Law Applicable to the Arbitration Agreement Separately from the Underlying Contract According to a strongly supported point of view, the law appli- cable to the arbitration agreement should be determined separately from the underlying contract. The ICC expresses this approach as fol- lows; “ The applicable law to determine the scope and the effects of an arbitration clause providing for international arbitration do not necessarily coincide with the law applicable to the merits of a dispute submitted to arbitration. Although this law or these rules of law may in certain cases concern the merits of the dispute as well as the arbitra- 5 Please see: The High Court of Calcutta’s Coal India Limited v. Canadian Com- mercial Corporation decision dated 20 March 2012, XXXVII YBCA 2012, p. 242-243. 6 Please see: The Commercial Court of England decision dated 28 June 1999 and numbered UK No. 57, XXVI YBCA 2001, p. 869-885. 7 For more information regarding the approach of the English courts, please see: Pearson , Sabrina “ Sulamérica v. Enesa: The Hidden Pro-validation Approach Ad- opted by the English Courts with Respect to the Proper Law of the Arbitration Agreement ”, Arbitration International, Volume: 29, Issue: 1, p. 118. 8 Please see: Turkish Supreme Court General Assembly Decision dated 11.10.2000 and numbered 2000/19-1122 E. 2000/1256 K. (Kazancı İçtihat ve Bilgi Bankası).