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

67  R. EMERJ, Rio de Janeiro, v. 22, n. 3, p. 9-68, Setembro-Dezembro. 2020  21.TURKISH CODE OF PRIVATE INTERNATIONAL AND PROCEDURAL LAW MAIN DIFFERENCES WITH THE NEW YORK CONVENTION Finally, contrary to the 1958 NewYork Convention, Turkish Code of Private International and Procedural Law does not con- tain any specific provision on the law applicable to the question of the validity of the arbitration agreement or the ability of the parties to prepare it 259 . Thus, the applicable law in these matters will be sought in accordance with articles 9 and 24 of Turkish Code of Private International and Procedural Law on legal capa- city 260 (ehliyet) and contractual obligations 261 (sözleşmeden doğan borç ilişkilerinde) respectively. Another major difference between the Convention and the Code concerns the burden of proof 262 . According to the Convention, of one of the conditions for execution of the foreign judgment is not fulfilled, the burden of proof in the cases referred to in article 5 par. 1 lies with the person claiming to be absent for the remainder referred in paragraph 2 of that article, the Court is seized of its own motion. On the contrary, Turkish Code of Private International and Procedu- ral Law states, as we have seen, that the firs three cases (a, b, c) of arti- cle 62 are dealt with by the Court of its ownmotion, for the remaining six (ç, d, e, f, g, h) of the proof shall be borne by the applicant. Finally, as to the “maturity” of foreign arbitration decisions, the Convention stipulates that the decision should be binding on the parties (article 5 par. 1-e), whereas Turkish Code of Private International and Procedural Law, as we have seen, applies the alternative criteria to final judgment and enforceability of the judgment abroad or of their binding on the parties 263 . 259 See article 5 par. 1 a) of the Convention, which states that the Court of Justice shall examine “whether the parties had an incapacity under the applicable law or whether the agreement is invalid under the law to which the parties have been subjected, and in the absence of such indication, under the law of the coun- try in which the decision was issued”. 260 This Article defines in principle the law of the person’s nationality (par. 1). 261 Which lays down as the applicable law what the parties have explicitly chosen (par. 1), and in the ab- sence thereof the law with which it is more closely connected with the contract (par. 4), with the elements constituting this close relationship. 262 C. ŞANLI, New York Konvansionuna Göre Hakem Kararlarının Tanınması ve Tenfizi, in Μilletlerarası Hukuk ve Milletlerarası Özel Hukuk Bülten, 1994, pp. 96ss. 263 E. NOMER, Devletler Hususi Hukuku, op. cit., pp. 534ss.