The Necessity and Permissibility of Arbitration Agreements: A Hermeneutic Approach

Abstract

The significance of determining the nature of any contract in terms of its necessity or permissibility lies in its crucial role in defining the effects of the contract, regulating the relationships between the parties, and clarifying their obligations and duties. Legislators have explicitly determined the nature of many contracts in this regard, while remaining silent in certain cases. Regarding arbitration, as regulated in Articles 454 to 501 of the Civil Procedure Code, the nature of arbitration agreements has not been explicitly addressed, leaving the matter ambiguous. This ambiguity arises from the provisions stated in Articles 472 and 481 of the aforementioned code. Interpretations provided by legal scholars also fail to clearly determine whether arbitration agreements are necessary or permissible. Judicial precedents have further contributed to this divergence. The three modern methods of interpreting legal texts and sources, collectively known as legal hermeneutics—ranging from romantic hermeneutics to historical and reader-oriented approaches—offer new perspectives on interpreting the laws related to this issue. Adopting such an approach, this article analyzes the nature of arbitration agreements and the debate over their necessity or permissibility. Using a descriptive-analytical method, it seeks to elucidate the issue through the three hermeneutic approaches and justify the differing outcomes.