Therefore the Arbitral Tribunal deemed it acceptable to examine the purpose of its jurisdiction on this concluding part of the Award as a precaution. A renewed examination of those elements was then prompted by the Dissenting Opinion by Dr. Ateş Akıncı. Therefore, the quantity of USD 16’938’434,076 , without being the object of an specific settlement between the Parties on the liquidation of damages for breach of contract, however does mirror the Parties’ widespread views as to the doubtless benefit SBD could derive from the project over a interval of thirty years.
Nevertheless the Respondent by no means utilized to the Arbitral Tribunal so as to search a preliminary award on jurisdiction, regardless of the indication by the Chairman, in his letter of 25 July 2003, that the draft Timetable had to be considered “a comprehensive roadmap setting out all the main phases of the arbitration” . However, continuation of the switch of operational rights of the distribution facilities constructed or to be constructed by the public authorities and businesses in the Authorisation area No. 12 to your organization grew to become legally inconceivable at this stage because of the abovementioned judgments. As it’s known, because the Council of State has noted in its advisory opinion that it’s legally unimaginable to extend Treasury guarantee for operating tights switch tasks under Energy Market Law 4628, the stated transfer procedures are conducted solely by the Ministry of Energy and Natural Resources. Consequently, making reference to the Undersecretariat of Treasury in respect of the transfer procedures is out of the question.
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The Implementation Contract was further acted upon by both Parties in 2001, as TEDAŞ entered into two agreements with SBD on 28 March 2001 . There is little doubt within the Arbitral Tribunal’s view that the Concession Agreement was entered into on the basis of such Decree and that the absence of such a decree would have meant that no concession would ever exist. The Decree was quashed by the decision of the Council of State of 27 November 2002 (R-52), on which the Respondent relies. That decision was confirmed by a choice by the Council of State on 22nd October 2003 (R-80).
The Respondent additionally submitted that the alternative of an old settlement by a fresh agreement must take place “in the identical field of law” and that it was impossible to resume an obligation ruled by administrative law by one ruled by private law123. It may be briefly recalled at this juncture that Law No. 4501 doesn’t deal in that provision with a minor technicality; it expresses the deliberate intention of the Turkish Parliament to enable concession-holders to move into the private regulation enviornment and have their concessions replaced by an settlement governed by personal legislation. The Respondent’s case is based on the legal Turkish citizenship 250.000 Usd precept whereby no action for damages can lie on an invalid contract and the Respondent is entitled to depend on the invalidity of the Implementation Contract as a defence to SBD’s declare for damages. In the Arbitral Tribunal’s opinion the Republic of Turkey has been validly represented in these arbitration proceedings by the Ministry of Energy and Natural Resources and the Respondent’s objection is hereby dismissed. The query of the language during which a procedural act such because the Request for Arbitration is to be drafted is a query of type (viz. procedure), not considered one of substance. The Arbitral Tribunal held that the provisions of the Turkish Law No. 805 of 1926 did not apply to a world arbitration the place of which was outdoors Turkey, which finding can only be restated by the Tribunal in the current Award.
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A more detailed description of the plan and the phrases of the Contract are set out in paragraph sixty nine et seq. The Counsel talked about above had been authorised to symbolize the Respondent under a power of legal professional form executed on 30 April 2003 and filed with the ICC on 5 May 2003, and then anew on 8 September 2003 . On sixteen July 2003 Mr. Kreindler informed the ICC that a duly power of lawyer form had been executed and could be out there for inspection upon request.
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On twenty second November 2001 ELDER’S General Secretary Omer Faruk Acuner also wrote to the President of the World Bank (C-414), stressing inter alia that valid contracts could not be cancelled by the Administration’s mere unilateral action and that the Administration had not declared that the TOR projects would be cancelled. On 14 January 2002, virtually three months after the joint press convention, the Minister was unable to provide an affirmative reply; he confined himself to stating that the notification was “being carried out jointly by my Ministry and the Undersecretariat of Treasury with a private law agency appearing as counselor” (C-347, at 3772). 19 October 2001, the Actual Transfer Date set by the Transfer Committee , got here and went. The distribution services in the Sakarya-Bolu area were not transferred to SBD, both on 19 October 2001 as originally determined and agreed with the Ministry and TEDAŞ, or at any subsequent time.
Finally, there are not any indications on the report that the Ministry of Energy and Natural Resources, in its capacity of the signatory of the Implementation Contract, required some other State Department or Ministry to have the transfer course of accelerated in view of such changes. At this juncture, the Arbitral Tribunal will observe that there is not any indication on the record that the Ministry of Energy and Natural Resources knowledgeable SBD in December 2000 that TOR firms could be anticipated to adjust to a short time restrict, due to expire on 31st March 2001, for the “monetary closure” of this tasks. On 1st November 2000 SBD utilized to the Ministry of Energy and Natural Resources (C-173) for a first extension of the time limit in Ar-tide 39 of the Implementation Contract for the completion of the agreements set out in Article 21 of the same Contract and the issuance of the Letter of Guarantee .
Throughout his career, he provided consultancy services to many companies in several sectors; He has worked on Labor Law, Foreign Trade and Customs Law, Contracts and Obligations Law, Real Estate Law, Inheritance Law, Administrative and Tax Law. Bahadır Sakarya continues his studies on this space, in addition to offering consultancy within the field of case administration, Banking and Finance legislation. The Claimant alleged that it lost income in an amount of USD ninety three,3 million because of the Respondent’s breach of contract, whereas the Respondent countered that the operation of the electrical energy distribution amenities in the Sakarya-Bolu region would not be a money-making enterprise and the motion was due to this fact to be dismissed. For each personal agreement does not only set out the rights and obligations of the contracting events; any agreement will also thereby draw a line between the commercial and authorized dangers to be borne by each celebration. When the Administration has entered into a non-public contract pursuant to a Decree which was subsequently quashed by a judicial determination, the consequences of the cancellation of such Decree on the validity of the contract had been handled by the so-called “two-stage principle” as a matter of Turkish regulation (which is the literal of the German expression “Zweistufentheorie”). In the Arbitral Tribunal’s view, the fact that no power of attorney was filed for Mr. Yapıcı meant that Mr. Yapıcı would not be representing the Claimant henceforth.
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On 19 October 2001 (viz. three days before the transfer was to take place), SBD had sent the Ministry a reminder of a earlier invitation, made with express reference to Article 36 of the Implementation Contract (C-91) to a meeting to discuss the differences between the Parties. The relationship between the Parties had turn out to be tough as the Fund Agreement had not been signed and the Undersecretariat’s Letter of Guarantee had not been supplied. The incontrovertible turkish citizenship lawyer truth that the switch did not happen should be understood within the mild of the opposite difficulties in the best way of the completion of the project. The Arbitral Tribunal will turn at this juncture to the chronology of occasions set out in paragraph 133 et seq. Above to recall the points of fact which it deems related in relation to the Ministry’s failure to hold out the switch on 19 October 2001 as initially deliberate.
