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Administrative Law / Droit administratif 2010 Turkey / Turquie

2010 / Vol. 22, No. 3, (77)
Digital Edition

In order to comprehend where arbitration finds its place in a jurisdiction with ad­min­istrative courts, first, what an administrative dispute is has to be understood. Tak­ing into account the jurisprudence in the Turkish Constitutional and legal sys­tem, ad­ministrative disputes could be considered as disputes arising out of a con­ces­sive public legal relation where one party is acting as an administrative author­ity to per­form an administrative duty. Such disputes are subject to review before ad­minis­trative courts in Turkey. However, with a constitutional reform, there is now an­other possibility, that is “arbitration” for specific disputes. In this regard, there are two different types of contracts for the provision of public service being subject to arbitration; both are closely related to the problem of the scope of ad­min­istrative courts’ jurisdiction. With these amendments, the legislator has a con­sti­tu­tional ba­sis for defining an administrative contract for the provision of public service as a private law contract. In addition, recourse to arbitration for adminis­tra­tive contracts providing public service is possible under the new scheme of the 1982 Constitu­tion. These amendments have effects on the very nature of adminis­tra­tive law, its con­cepts and principles.

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