Competition Law and Arbitration in Turkey: Arbitrability and Mandatory Rules

Introduction

Competition law and arbitration pursue different but potentially complementary objectives.

Arbitration allows commercial parties to resolve disputes in a private, neutral and specialist forum. The parties may select the arbitrators, determine the procedural language, choose the seat of arbitration and adopt rules suited to the complexity of their transaction.

Competition law, by contrast, protects the competitive structure of markets. It does not operate solely for the benefit of the contracting parties. It also protects consumers, competitors, market access and the public interest in maintaining effective competition.

The interaction between these systems creates difficult questions:

• Can an arbitral tribunal determine whether a commercial agreement restricts competition?
• May an arbitrator refuse to enforce a resale-price clause?
• Can a distributor claim damages for abuse of dominance?
• May a tribunal declare an exclusivity obligation invalid?
• Can competition-law damages be awarded in arbitration?
• Is a Competition Board decision binding on the tribunal?
• Can an arbitral tribunal impose an administrative fine?
• What happens if the Competition Authority begins an investigation during arbitration?
• Can an award be annulled for failing to apply mandatory competition rules?
• May enforcement be refused on public-policy grounds?

Competition law and arbitration in Turkey must be analysed by distinguishing private rights from public enforcement powers.

A tribunal may generally determine contractual and monetary claims between parties that have consented to arbitration. It may examine whether a clause is invalid, whether termination was lawful or whether one party owes damages.

An arbitral tribunal cannot ordinarily exercise powers reserved by law to the Turkish Competition Authority and Competition Board. It cannot conduct an official competition investigation, impose an administrative fine, grant merger clearance or annul a Competition Board decision.

The mandatory character of competition law does not necessarily make every competition-related dispute non-arbitrable. Instead, mandatory competition rules may govern the merits and influence the validity, annulment and enforcement of the award.

This guide examines:

• The Turkish competition-law framework;
• Arbitrability of competition disputes;
• The distinction between public and private enforcement;
• Restrictive agreements and exemptions;
• Abuse of dominance;
• Merger-control issues;
• Contractual invalidity;
• Competition damages;
• Vertical restrictions;
• Mandatory rules;
• Parallel Competition Authority proceedings;
• Public policy;
• Annulment and enforcement risks.

The Turkish Competition Law Framework

The principal legislation is Law No. 4054 on the Protection of Competition.

Its purpose is to prevent agreements, decisions and practices that restrict competition, prevent abuse of a dominant position and protect competition through regulation and supervision.

The three principal substantive prohibitions are:

1. Article 4: restrictive agreements, concerted practices and decisions of associations of undertakings;
2. Article 6: abuse of a dominant position;
3. Article 7: mergers and acquisitions that satisfy the statutory prohibition and notification framework.

Article 5 establishes the conditions under which an agreement falling within Article 4 may benefit from exemption. The Competition Board may also issue block exemption communiqués for categories of agreements satisfying defined conditions.

The Competition Board’s public powers include implementing Law No. 4054, conducting investigations, determining infringements, issuing decisions, applying administrative sanctions and performing the other functions assigned by Article 27. These regulatory powers cannot be transferred to an arbitral tribunal through a private agreement.

Turkish Arbitration Law

Competition-related arbitration seated in Türkiye may be governed by:

• Articles 407 to 444 of the Turkish Code of Civil Procedure for domestic arbitration;
• International Arbitration Law No. 4686 for qualifying international arbitration;
• The arbitration institution’s rules;
• The parties’ arbitration agreement.

Article 408 of the Code of Civil Procedure excludes disputes concerning rights in rem over immovable property and matters that are not subject to the parties’ free disposition. The same underlying arbitrability limitation applies under the Turkish international arbitration framework.

Turkish legislation does not expressly state that every competition-law dispute is non-arbitrable.

The correct approach is therefore to examine the particular claim and requested remedy.

A contractual claim for payment, invalidity, restitution or damages may concern rights that commercial parties can dispose of. A request that the tribunal impose an administrative fine or grant merger approval does not.

Are Competition Law Disputes Arbitrable in Türkiye?

There is a strong legal basis for concluding that many private competition-law disputes may be resolved through arbitration where:

• A valid arbitration agreement exists;
• The dispute falls within its scope;
• The claim concerns private rights between the parties;
• The requested remedy does not require the exercise of exclusive public authority.

Potentially arbitrable competition-related claims include:

• Invalidity of a restrictive contractual clause;
• Restitution of payments made under an invalid provision;
• Damages caused by an anti-competitive agreement;
• Abuse-of-dominance damages;
• Breach of a competition-law warranty;
• Indemnification under a share purchase agreement;
• Wrongful termination based on refusal to comply with an unlawful restriction;
• Disputes concerning exclusivity and non-compete clauses;
• Allocation of liability for a Competition Authority investigation;
• Contractual responsibility for an administrative fine, subject to mandatory-law limitations.

This conclusion is based on the private and disposable nature of the requested relief, not on the proposition that competition law itself is optional.

The tribunal must still apply the mandatory legal rules relevant to the dispute.

Matters That Cannot Be Transferred to Arbitrators

An arbitral tribunal cannot ordinarily:

• Open an official competition investigation;
• Conduct a dawn raid under statutory authority;
• Exercise the Competition Authority’s information-gathering powers;
• Impose an administrative competition fine;
• Accept a leniency application;
• Conclude a statutory settlement procedure with an investigated undertaking;
• Grant or refuse merger clearance;
• Withdraw a block exemption with market-wide administrative effect;
• Annul a Competition Board decision;
• Bind competitors, consumers or public authorities that did not consent to arbitration.

Administrative sanctions for violations of Articles 4 and 6 remain within the public enforcement system established by Law No. 4054 and the applicable administrative-fine regulations. The current fine framework is governed in part by the regulation published on 27 December 2024.

An arbitration clause cannot prevent the Competition Authority from investigating conduct affecting the Turkish market.

Similarly, an arbitral award finding that no contractual breach occurred does not automatically prohibit the Competition Board from reaching a different administrative conclusion under Law No. 4054.

Public and Private Enforcement Must Be Distinguished

Turkish competition law contains both public and private enforcement mechanisms.

Public enforcement

Public enforcement concerns the Competition Authority’s statutory responsibilities.

Possible outcomes include:

• A finding of infringement;
• Administrative fines;
• Behavioural remedies;
• Structural remedies within the statutory framework;
• Commitments;
• Settlement;
• Merger clearance or prohibition.

These decisions are made under public law and may be challenged through the competent administrative judicial process.

Private enforcement

Private enforcement concerns the legal consequences of anti-competitive conduct between private persons or companies.

Possible remedies include:

• Contractual invalidity;
• Restitution;
• Compensation;
• Lost profit;
• Declaratory relief;
• Termination;
• Indemnification.

Law No. 4054 expressly regulates private-law consequences, including invalidity under Article 56 and damages under Articles 57 and 58. The Competition Authority’s own materials explain that persons harmed by competition violations may seek compensation and that the statutory framework may, under the relevant conditions, permit an award calculated at up to three times the relevant measure.

Where the private parties have a valid arbitration agreement, an arbitral tribunal may have jurisdiction over these inter partes consequences.

Restrictive Agreements under Article 4

Article 4 prohibits agreements, concerted practices and decisions of associations of undertakings that have the object or effect of preventing, distorting or restricting competition in a market.

Potential examples include:

• Price fixing;
• Market sharing;
• Customer allocation;
• Bid rigging;
• Output restrictions;
• Exchange of competitively sensitive information;
• Certain resale-price restrictions;
• Certain exclusivity and non-compete obligations;
• Restrictions on passive sales.

An arbitration may raise Article 4 where one party requests enforcement of a contractual obligation and the other argues that the obligation is prohibited.

For example:

• A supplier claims damages because a distributor sold below the minimum resale price;
• A distributor challenges termination based on sales outside an allocated territory;
• A franchisee contests a broad post-term non-compete obligation;
• A shareholder argues that a joint venture non-compete is excessive;
• A licensee refuses to comply with a market-sharing arrangement.

The tribunal should not treat competition law as an external issue that only the Competition Authority can consider. Where the enforceability of the private agreement depends on Article 4, the tribunal must assess the competition-law defence within the scope of its jurisdiction.

Exemption under Article 5

An agreement falling within Article 4 is not necessarily unlawful in every circumstance.

Article 5 allows exemption where the statutory conditions are satisfied. The analysis broadly concerns:

• Economic or technical improvement;
• Consumer benefit;
• Necessity and proportionality of the restriction;
• Preservation of competition in a substantial part of the market.

The Competition Board has adopted block exemption instruments for particular categories of agreements. Agreements outside a block exemption may still require an individual assessment under Article 5.

The official Vertical Agreements Guidelines expressly state that falling outside the block exemption does not automatically create a presumption that the agreement violates Law No. 4054. The agreement may still satisfy the individual exemption conditions.

An arbitral tribunal should therefore avoid the following incorrect reasoning:

The agreement does not benefit from block exemption; therefore, the agreement is automatically unlawful.

The correct analysis is:

1. Does the agreement restrict competition under Article 4?
2. Does a block exemption apply?
3. If not, are the Article 5 individual exemption conditions satisfied?
4. If only part of the agreement is unlawful, can that part be separated?
5. What are the contractual consequences?

Vertical Agreements in Arbitration

Vertical agreements are concluded between undertakings operating at different levels of the production or distribution chain.

Examples include:

• Supply agreements;
• Distribution agreements;
• Franchise agreements;
• Exclusive purchasing arrangements;
• Selective distribution;
• Technology-related distribution provisions;
• Certain commercial agency arrangements.

The Vertical Agreements Block Exemption Communiqué No. 2002/2 generally applies a 30% market-share threshold, subject to the conditions of the Communiqué and the absence of excluded restrictions.

The tribunal should assess:

• The relevant product market;
• The relevant geographic market;
• The supplier’s or buyer’s market share;
• The type of restriction;
• Whether a hardcore restriction exists;
• Duration of non-compete obligations;
• Whether an individual exemption is possible.

Resale Price Maintenance

Resale price maintenance is a frequent issue in distribution and franchise arbitration.

The official Vertical Agreements Guidelines state that preventing the buyer from determining its own resale price, including fixing minimum or fixed resale prices, is prohibited for purposes of the block exemption.

A supplier may generally recommend a resale price or impose a genuine maximum price, provided that pressure or incentives do not convert it into a fixed or minimum price.

Indirect resale price maintenance may involve:

• Fixing the distributor’s margin;
• Limiting the maximum discount;
• Withholding rebates;
• Delaying deliveries;
• Threatening termination;
• Monitoring and punishing lower prices;
• Requiring dealer reports concerning discounting competitors.

A franchisor may describe a price as “recommended” while penalising franchisees that depart from it. The tribunal must examine the practical operation of the system rather than only the terminology used in the contract.

A supplier seeking damages because a distributor ignored an unlawful minimum price may find that the relevant contractual provision is unenforceable.

Territorial and Customer Restrictions

Distribution agreements frequently allocate territories or customer groups.

Turkish competition rules distinguish among:

• Active sales;
• Passive sales;
• Exclusive territories;
• Reserved customer groups;
• Selective distribution;
• Online sales.

Not every territorial restriction is automatically unlawful. Certain restrictions on active sales into an exclusively allocated territory may qualify for exemption.

Broad prohibitions on passive sales may create significantly greater risk.

The Vertical Agreements Guidelines explain that territorial and customer restrictions may be imposed directly through contract wording or indirectly through reduced discounts, supply limitations, termination threats or other deterrent measures.

An arbitral tribunal may therefore need to determine whether:

• A distributor actively targeted another exclusive territory;
• A customer approached the distributor without solicitation;
• Online advertising specifically targeted another region;
• The supplier unlawfully prevented passive sales;
• Termination based on cross-border sales was justified.

Non-Compete Obligations

The Communiqué excludes indefinite non-compete obligations and non-compete obligations exceeding five years from the benefit of the general block exemption, subject to the specific facility-related rule.

Post-contractual non-compete obligations generally fall outside the exemption, although a limited exception may apply for up to one year where the restriction:

• Concerns competing goods or services;
• Is limited to the premises or land from which the buyer operated;
• Is necessary to protect transferred know-how.

Falling outside the exemption does not by itself establish automatic invalidity.

The tribunal should assess:

• Market power;
• Duration;
• Territory;
• Product scope;
• Necessity;
• Know-how protection;
• Foreclosure effects;
• Consumer benefit;
• Availability of less restrictive measures.

Horizontal Agreements

Horizontal agreements are agreements between actual or potential competitors.

They may concern:

• Joint purchasing;
• Joint production;
• Research and development;
• Commercialisation;
• Specialisation;
• Information sharing;
• Standardisation;
• Joint bidding;
• Joint ventures.

The Competition Authority’s Horizontal Cooperation Guidelines provide the analytical framework for assessing these agreements under Articles 4 and 5.

An arbitration may involve horizontal competition issues where:

• A joint venture partner alleges unlawful customer allocation;
• Consortium members dispute bid coordination;
• A shareholder agreement contains a broad market non-compete;
• Competitors exchange pricing information under a cooperation agreement;
• A party seeks enforcement of an output limitation.

The tribunal should distinguish a legitimate collaboration from a disguised cartel.

Abuse of Dominance under Article 6

Holding a dominant position is not itself prohibited. Article 6 prohibits abuse of that position.

Potential abuse allegations may include:

• Refusal to supply;
• Discriminatory terms;
• Tying;
• Predatory pricing;
• Excessive exclusionary rebates;
• Margin squeeze;
• Exclusive dealing;
• Unfair contractual conditions;
• Restriction of market access.

The Competition Authority has published guidance on exclusionary conduct by dominant undertakings.

Arbitration may be particularly relevant where a dominant supplier and distributor, platform and business user, licensor and licensee or infrastructure owner and customer have a contractual relationship.

A claimant may argue that:

• Access was denied without objective justification;
• Commercial terms were discriminatory;
• Termination excluded it from the market;
• A tying obligation prevented use of competing products;
• Rebates created unlawful exclusivity.

The tribunal may determine the resulting private rights, but it cannot impose a public administrative fine for abuse of dominance.

Merger Control and Arbitration

Mergers, acquisitions and joint ventures may require Competition Board approval under the applicable Turkish merger-control rules.

The merger-control framework was updated in 2026, including amendments to the relevant communiqué and related guidelines.

An arbitral tribunal cannot grant merger clearance.

It may nevertheless determine disputes concerning:

• Failure to make a notification;
• Breach of a competition-clearance covenant;
• Satisfaction of a condition precedent;
• Allocation of filing responsibility;
• Compliance with interim operating restrictions;
• Termination because clearance was refused;
• Break fees;
• Hell-or-high-water obligations;
• Divestment commitments;
• Warranty and indemnity claims.

For example, the tribunal may determine whether a purchaser used reasonable efforts to obtain clearance. It cannot order the Competition Board to approve the transaction.

Contractual Invalidity under Article 56

Article 56 of Law No. 4054 establishes private-law consequences for prohibited agreements and decisions.

A provision violating Article 4 may be invalid and unenforceable. A party should not be able to obtain an award compelling performance of an unlawful restriction.

The tribunal should determine:

• Whether the entire agreement is affected;
• Whether the restrictive provision is severable;
• Whether the contract contains a severability clause;
• Whether the remaining agreement can function independently;
• Whether restitution is required;
• Whether another lawful interpretation is available.

Competition-law invalidity should not be extended mechanically beyond the provision that creates the infringement where the lawful remainder can survive.

However, severability cannot be used to rewrite the transaction in a manner the parties never intended.

Competition Law Damages

Article 57 provides a right to compensation for persons harmed by conduct that restricts competition or abuses a dominant position.

Article 58 addresses calculation of loss. The statutory framework includes actual financial harm, lost profit and, under the specified conditions, the possibility of a multiplied award calculated according to the damage or the infringer’s actual or expected profit.

A competition damages claim may require proof of:

• Infringement;
• Harm;
• Causation;
• Standing;
• Amount of loss;
• Fault where legally required;
• Limitation compliance.

Potential claimants include:

• Customers paying an overcharge;
• Competitors excluded from the market;
• Distributors subjected to discriminatory conditions;
• Suppliers harmed by buyer coordination;
• Businesses losing profit because of market foreclosure.

Where a valid arbitration agreement covers the dispute, the claimant may request compensation from the tribunal.

Any request for multiplied damages should be pleaded distinctly. Such damages are not automatic merely because a competition violation occurred.

Direct and Follow-On Competition Claims

A private claim may be brought:

As a direct or stand-alone claim

The claimant asks the tribunal to determine the competition violation without relying on a prior final Competition Board infringement decision.

This may require extensive evidence concerning:

• Market definition;
• Market shares;
• Economic effects;
• Dominance;
• Pricing;
• Barriers to entry;
• Consumer impact.

As a follow-on claim

The claimant relies on an existing Competition Board decision concerning the alleged infringement.

A final administrative decision may provide highly significant evidence. The tribunal must nevertheless examine:

• Which undertaking was investigated;
• Which conduct was established;
• The relevant period;
• Whether the claimant suffered individual harm;
• Whether causation and quantum remain disputed;
• Whether judicial review is pending or concluded.

A public infringement finding does not automatically quantify the claimant’s private loss.

Parallel Competition Authority Proceedings

The Competition Authority may investigate conduct while arbitration is pending.

The tribunal must decide whether to:

• Continue the arbitration;
• Stay the entire proceeding;
• Stay only competition-dependent issues;
• Issue a partial award on unrelated contractual matters;
• Preserve evidence;
• Await the Competition Board’s decision.

There is no universal rule requiring every arbitration to stop whenever a competition complaint is filed.

Relevant factors include:

• Stage of the administrative investigation;
• Overlap of factual issues;
• Risk of conflicting outcomes;
• Urgency;
• Limitation periods;
• Availability of evidence;
• Expected duration;
• Whether the contractual dispute can be decided independently.

The tribunal should not allow a party to delay arbitration merely by filing a tactical complaint with the Competition Authority.

Mandatory Competition Rules

Competition rules protecting the Turkish market are mandatory provisions.

Parties cannot avoid their application simply by selecting foreign substantive law.

Where a contract is performed in Türkiye or materially affects a Turkish market, Turkish competition law may become relevant even if the agreement states that it is governed by another national law.

The tribunal should distinguish:

• The law governing the contract;
• The law governing the arbitration agreement;
• The law of the seat;
• Mandatory rules connected with the market;
• Public policy at the enforcement stage.

A foreign-law clause cannot validate conduct that Turkish mandatory competition law prohibits within its territorial scope.

Must the Tribunal Raise Competition Law on Its Own Initiative?

The safest approach depends on the arbitration law, the governing law, the factual record and the seriousness of the apparent violation.

A tribunal should generally give the parties a reasonable opportunity to address any competition issue before relying on it.

Where the evidence reveals an obvious and serious restriction, ignoring the issue may expose the award to public-policy risk.

The tribunal may:

1. Invite written submissions;
2. Request market evidence;
3. Permit expert economic reports;
4. Identify the legal issue without prejudging it;
5. Allow both parties to respond;
6. Decide the competition point in the reasoned award.

The tribunal should not surprise the parties by invalidating a contract on a competition theory that was never discussed.

Competition Law Evidence

Competition disputes are evidence-intensive.

Relevant evidence may include:

• Contracts;
• Pricing instructions;
• Internal emails;
• Discount policies;
• Customer allocation lists;
• Market studies;
• Sales data;
• Board minutes;
• Competitor communications;
• Termination notices;
• Dealer-monitoring reports;
• Economic models;
• Competition Authority decisions.

Experts may be required to analyse:

• Relevant market;
• Market share;
• Market power;
• Foreclosure;
• Counterfactual pricing;
• Overcharge;
• Lost profit;
• Consumer benefit;
• Efficiency.

A legal expert should explain the applicable competition framework, while an economist should analyse market effects and damages. The tribunal remains responsible for the final legal determination.

Confidentiality and Competition Investigations

Arbitration may involve commercially sensitive documents that are also relevant to a Competition Authority investigation.

The 2025 rules concerning access to Competition Authority files and protection of trade secrets regulate access to evidence and internal documents in administrative investigations.

A party should not assume that:

• Every arbitration document may be withheld from the Authority;
• Every Authority document may be produced freely in arbitration;
• Leniency material may be disclosed without restriction;
• Trade-secret classification eliminates all evidentiary access.

The tribunal may adopt:

• Redaction;
• Restricted access;
• Confidentiality clubs;
• Counsel-only disclosure;
• Expert-only disclosure;
• Secure data rooms.

These measures protect confidentiality but cannot override mandatory duties owed to public authorities.

Interim Measures

Competition-related arbitration may require urgent protection.

A distributor may seek to prevent termination based on refusal to comply with an allegedly unlawful price restriction. A dominant supplier may face a request to continue supply. A purchaser may seek preservation of pricing records.

Potential measures include:

• Evidence preservation;
• Temporary continuation of supply;
• Prevention of document destruction;
• Preservation of customer data;
• Temporary suspension of a contractual penalty;
• Protection of confidential information.

Interim relief must be framed carefully.

The tribunal should not issue a measure that:

• Prevents the Competition Authority from exercising statutory powers;
• Grants regulatory approval;
• Binds non-signatories;
• Creates market-wide obligations beyond the parties;
• Permanently determines disputed competition issues without a hearing.

Court assistance may be required where coercive enforcement or third-party action is necessary.

Annulment of Turkey-Seated Awards

A Turkey-seated domestic award may be challenged only through the limited annulment grounds in Article 439 of the Code of Civil Procedure.

Relevant grounds include:

• Non-arbitrability;
• Excess of jurisdiction;
• Material procedural irregularity;
• Violation of equality or the right to be heard;
• Public-policy conflict.

An ordinary error in competition-law analysis should not automatically turn the annulment proceeding into a full merits appeal.

Public-policy risk becomes more serious where the award:

• Directly enforces cartel conduct;
• Orders performance of an obvious minimum resale-price restriction;
• Requires market sharing;
• Disregards a final public-law prohibition affecting the contract;
• Purports to cancel an administrative fine;
• Grants relief reserved exclusively to the Competition Board.

The annulment court should distinguish a genuine public-policy violation from a party’s attempt to reargue market definition, economic evidence or exemption analysis.

Enforcement of Foreign Awards

Foreign and non-domestic arbitral awards may fall within the New York Convention framework.

The Convention establishes common standards for recognition of arbitration agreements and enforcement of covered awards. Article V permits refusal on limited grounds, including non-arbitrability and conflict with the public policy of the enforcement state.

A foreign award enforcing conduct that seriously violates Turkish competition policy may face public-policy scrutiny during enforcement in Türkiye.

This does not mean that Turkish courts should repeat every competition-law analysis from the beginning.

The enforcement inquiry should remain exceptional and focused on fundamental conflict with Turkish public policy rather than ordinary legal or economic error.

Drafting an Arbitration Clause for Competition Disputes

ISTAC’s official model clause refers disputes arising out of or connected with the contract to final arbitration under the ISTAC Arbitration Rules.

For competition-sensitive contracts, the clause may be expanded:

Any dispute, controversy or claim arising out of or in connection with this Agreement, including any dispute concerning its formation, validity, interpretation, performance, exclusivity, pricing, non-compete obligations, competition-law compliance, invalidity, termination, restitution, indemnification or damages, shall be finally resolved under the Istanbul Arbitration Centre Arbitration Rules.

The seat of arbitration shall be Istanbul, Türkiye. The tribunal shall consist of three arbitrators. The language of arbitration shall be English. Turkish law shall govern the merits.

The agreement may also state:

Nothing in this arbitration clause prevents a party from filing a complaint, notification or mandatory application with the Turkish Competition Authority or from challenging an administrative decision before the competent administrative court.

This preserves the distinction between private arbitration and public enforcement.

Competition Law Warranties and Indemnities

Companies should allocate competition risk expressly in transaction documents.

A share purchase, distribution, franchise or joint venture agreement may contain warranties concerning:

• No participation in cartels;
• No unlawful information exchange;
• Compliance with merger-control rules;
• No resale-price maintenance;
• No ongoing Competition Authority investigation;
• Completeness of disclosed correspondence;
• Compliance with commitments;
• No unlawful exclusivity arrangements.

The indemnity clause should address:

• Administrative fines;
• Private damages claims;
• Investigation expenses;
• Remedial costs;
• Loss of contract value;
• Third-party claims.

A contractual clause requiring one party to reimburse an administrative fine should be reviewed carefully. Private allocation between parties must not undermine the deterrent purpose of mandatory competition sanctions or bind the Competition Authority.

Practical Competition Arbitration Checklist

Before commencing or defending a competition-related arbitration in Türkiye, counsel should determine:

1. Which arbitration law applies;
2. Whether the claim concerns disposable private rights;
3. Whether the requested remedy belongs exclusively to the Competition Board;
4. Whether the arbitration clause covers statutory and non-contractual claims;
5. Whether Article 4, 5, 6 or 7 is relevant;
6. Whether a block exemption applies;
7. Whether individual exemption must be assessed;
8. Whether the relevant market has been defined properly;
9. Whether market shares are supported by evidence;
10. Whether a hardcore vertical restriction exists;
11. Whether a non-compete obligation is proportionate;
12. Whether a Competition Authority investigation is pending;
13. Whether a stay is necessary;
14. Whether a final Board decision exists;
15. Whether damages and causation can be proven;
16. Whether confidential regulatory evidence may be produced;
17. Whether interim protection is required;
18. Whether the award could conflict with public policy;
19. Whether related public-law proceedings remain necessary;
20. Where the award may need to be enforced.

Frequently Asked Questions

Are competition-law disputes arbitrable in Türkiye?

Many private contractual and damages disputes may be arbitrated where they concern rights subject to the parties’ disposition and fall within a valid arbitration agreement. Public enforcement powers remain with the Competition Authority.

Can an arbitral tribunal impose a competition fine?

No. Administrative competition fines are imposed through the statutory public enforcement system.

Can a tribunal grant merger clearance?

No. Merger notification and approval fall within the Competition Board’s statutory authority.

Can the tribunal declare a restrictive contract invalid?

Potentially, yes. Where contract enforceability depends on Article 4 and Article 56, the tribunal may assess invalidity within the scope of the arbitration agreement.

Does falling outside a block exemption mean the agreement is unlawful?

No. The official Vertical Agreements Guidelines expressly state that an agreement outside the block exemption is not automatically presumed unlawful. Individual exemption under Article 5 must still be assessed.

What is the market-share threshold under the general vertical block exemption?

The Communiqué generally uses a 30% threshold, subject to the applicable calculation rules, agreement type and other conditions.

Can a supplier set its distributor’s resale price?

A genuine maximum or recommended price may be possible, but fixed or minimum resale pricing and indirect pressure that converts a recommendation into a fixed price create serious competition-law risk.

Can a distributor be prohibited from selling outside its territory?

Certain restrictions on active sales may qualify for exemption. Broad restrictions on passive sales or indirect territorial enforcement may fall outside the exemption and require further analysis.

Is every long non-compete clause invalid?

No. Exceeding the block-exemption limits means that the clause does not benefit automatically from that exemption. Its compatibility with Articles 4 and 5 must still be assessed individually.

Can competition damages be claimed in arbitration?

Potentially, where the arbitration agreement covers the claim and the requested compensation concerns private rights between the parties.

Can threefold damages be awarded automatically?

No. The statutory conditions, fault, loss, causation and the precise calculation must be established. The claimant must plead the remedy specifically.

Must the tribunal wait for a Competition Board decision?

Not in every case. The tribunal should consider the stage of the administrative process, overlap, urgency, evidentiary value and risk of inconsistent outcomes.

Is a Competition Board decision enough to prove damages?

No. An infringement decision may establish important elements, but the claimant must still prove its own loss, causation and recoverable amount.

Can the parties avoid Turkish competition law by selecting foreign law?

Not necessarily. Turkish mandatory competition rules may remain applicable where the agreement or conduct has a sufficient effect on the Turkish market.

Can an award be annulled for competition-law reasons?

Potentially, where the dispute was non-arbitrable or the award seriously conflicts with Turkish public policy. Ordinary disagreement with the tribunal’s competition analysis should not automatically permit merits review.

Can a foreign competition-related award be enforced in Türkiye?

Potentially, under the New York Convention or applicable Turkish private international law. Enforcement may be refused on limited grounds including non-arbitrability and public policy.

Conclusion

Competition law and arbitration in Turkey can operate together where their respective functions are understood correctly.

Arbitration determines private rights based on the parties’ consent. Competition law protects the competitive market structure through mandatory substantive rules and public enforcement.

Many competition-related disputes may be arbitrated, including claims concerning:

• Contractual invalidity;
• Restitution;
• Damages;
• Exclusivity;
• Resale pricing;
• Non-compete clauses;
• Abuse of dominance;
• Competition warranties;
• Termination;
• Indemnification.

The arbitral tribunal may apply Articles 4, 5, 6 and the private-law provisions of Law No. 4054 when deciding these claims.

The tribunal cannot replace the Turkish Competition Authority.

It cannot:

• Conduct a statutory investigation;
• Impose an administrative fine;
• Grant merger approval;
• Accept a leniency application;
• Annul a Competition Board decision.

A competition-law defence should not be dismissed merely because it relies on a mandatory public-interest statute. The mandatory character of the law affects the merits and may influence public-policy review.

Vertical agreements require particular attention.

The tribunal should examine the 30% block-exemption threshold, hardcore restrictions, resale pricing, territorial limitations and non-compete obligations. Falling outside block exemption does not automatically establish illegality. Individual exemption under Article 5 may still be available.

Competition damages also require detailed proof. A claimant must establish not only infringement but also individual harm, causation and quantum. A Competition Board decision may provide important evidence but does not automatically calculate private loss.

Parallel proceedings should be managed carefully. The existence of an administrative investigation does not necessarily require suspension of the entire arbitration, but the tribunal should consider consistency, evidence and procedural fairness.

The award should explain:

• The relevant market;
• Applicable competition rule;
• Exemption analysis;
• Contractual consequences;
• Damages methodology;
• Limits of the tribunal’s authority.

A poorly reasoned award that enforces obvious anti-competitive conduct may face annulment or enforcement risk. A carefully reasoned award that determines private rights while respecting the Competition Board’s statutory powers is more likely to withstand review.

For Turkish and international companies, specialised competition and arbitration counsel can assist with contract drafting, market assessment, competition defences, damages claims, parallel Competition Authority proceedings, public-policy analysis and enforcement of arbitral awards.

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