Revista da EMERJ - V. 22 - N.3 - Setembro/Dezembro - 2020

 R. EMERJ, Rio de Janeiro, v. 22, n. 3, p. 9-68, Setembro-Dezembro. 2020  62 justified in relation to foreign judgments 236 . In the paragraph for foreign Court judgments, reference has been made to exemplary cases which have been found to be contrary to the Turkish public order. However, there are also special cases in relation to arbitra- tion which have been considered to be in opposition to Turkish public order and which are worth mentioning. Thus, foreign arbi- tration decisions issued under an arbitration clause or arbitration agreement drawn up by both parties on account of the exploitation of their economic superiority towards the other party have been judged to be contrary to public order 237 . Also, the termwhich gives the choice of arbitrators exclusively in one place is also contrary to public order. These terms of the arbitration clause or the arbitra- tion agreement are deemed to be contrary to Turkish morality, so any such arbitration must be excluded 238 . It should also be noted that if the validity of the alleged arbitration agreement is governed by Turkish law, any contradiction in the contract or the arbitration clause in morality are rejected as reasons for refusal of the enfor- ceability (case a)and b) of article 62 par. 1). This is because, in our opinion, there is also a question as to the validity of the contract or the clause, since under Turkish law contracts contrary to public order or morality are completely invalid, and if the opposition con- cerns part of them, then the nullity relates only to these provisions, unless it is obvious that without them the contract would not be drawn 239 . Very interesting is also an old historical decision 240 of the 1976 Turkish Court of Cassation, which considered that the order of the International Chamber of Commerce (ICC) rules of arbitra- tion requiring the draft decision to be submitted to the Internatio- nal Court of Arbitration before its final adoption, is contrary to the 236 Constitutional Court (AYM) 02.12.2004, in Resmî Gazete 21.10.2005, 25973 which refers to devices which are at a disadvantage on one side, thus compromising the proper procedural balance (hakkaniye- te uygun bir denge) between the two parties. See comments: E. NOMER, Devletler Hususi Hukuku, op. cit., pp. 499ss. 237 E. NOMER, Devletler Hususi Hukuku, op. cit., pp. 525ss. 238 Y. 13. HD 25.04.1991, in Yargıtay Kararları Dergisi, 1991, pp. 1222-1225. 239 Article 27 of the new Turkish Code of Complaints (Borçlar Kanunu) of 04.02.2011. As regards in parti- cular the arbitration clause, it would be difficult to accept that the parties would not proceed to the conclu- sion of the contract without this clause, and it is therefore more appropriate, in our opinion, that the nullity be limited only to the clause and not to the main contract as a whole. 240 Y. 15. HD 10.3.1976, in İlmi Ve Kazai İçtihatlar Dergisi, 1977, pp. 567 with a lesser opposed opinion.