Reference to Online Terms in Invoices Insufficient for Arbitration Agreement

In its decision dated 28 May 2024, with docket number 2024/1265 and decision number 2025/4403 (the “Decision”), the 11th Civil Chamber of the Turkish Court of Cassation (the “Court of Cassation”) upheld the Istanbul Regional Court of Appeal’s (the “Court of Appeal”) ruling rejecting the enforcement of a foreign arbitral award on the basis that a valid arbitration agreement was not in place between the parties.

The dispute concerned whether repeated references in the invoices issued to the buyer to an arbitration clause contained in the online Standard Terms and Conditions of Sale (the “Standard Terms”), which was published on the seller’s website could, in the absence of the arbitration clause in the invoice itself, give rise to a binding arbitration agreement between the parties. The court of first instance found the arbitration clause enforceable due to repeated acceptance of invoices referencing the Standard Terms. The Court of Appeal, however, disagreed, finding that a unilateral reference to online terms, absent inclusion of the arbitration clause itself in the invoice, could not give rise to a valid and binding arbitration agreement. The Court of Cassation upheld the Court of Appeal’s reasoning and affirmed its approach.

This ruling confirms the Turkish courts’ strict interpretation of Article II of the New York Convention and reinforces the importance of clearly and mutually documented arbitration agreements, especially when enforcement in Türkiye is anticipated.

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