Article 16(12) of the Regulation on Insurance Arbitration ("the Regulation") stipulates that arbitrators can decide to get the opinion and vote of an expert upon the request of one of the parties or ex-officio, if the case requires special or technical knowledge which falls outside of legal expertise. Board of Directors of the Insurance Arbitration Commission issues a list of experts for the arbitrators to apply each year as per the rules set out by the Turkish Insurance and Private Pension Regulation and Supervision Authority ("Authority"). Experts are appointed from such lists.
Article 4(3) titled "Conditions for Acceptance as an Expert," of the Rules and Procedures Regarding Experts at the Insurance Arbitration Commission ("Rules and Procedures") stipulated that individuals having a law degree shall not be registered in the list of experts unless they document that they have a specialization apart from law and they meet the requirements set out under paragraph 1.[1]
Pursuant to Article 5(1) of the Rules and Procedures:
- Experts to be appointed on compensation for permanent disability or loss of support must be actuaries, assistant actuaries, or lecturers working on actuarial issues in the relevant departments of universities.
- Experts to be appointed on value loss must be insurance adjusters with a license in the field of land vehicles.
- Experts to be appointed on fire and natural disasters and engineering insurances must be insurance adjusters holding license in the relevant branch, engineers registered in the professional chamber, or faculty members working in the relevant departments of universities.
- Experts to be appointed on health or illness must be doctors working in state-owned institutions or university hospitals.
- Experts to be appointed on state-backed agricultural insurance must be Agricultural Insurance Pool experts with a license in the relevant field.
In the case numbered 2016/13780 E., 2021/4716 K. initiated before the 10th Chamber of the Council of State, Istanbul Bar Association requested the annulment of Article 5(1) of the Rules and Procedures on the following grounds:
- The regulation stipulating that only actuaries, assistant actuaries, insurance adjusters, engineers registered in professional chambers, and doctors working in state-owned institutions or university hospitals will be appointed as experts after determining the areas of expertise of the persons to be appointed as experts is contrary to the Insurance Law and the Code of Civil Procedure.
- In practice, actuaries and insurance adjusters receive their payments from insurance companies, and therefore, the impartiality of the reports prepared by these experts will be questionable.
Istanbul Bar Association also requested the annulment of Article 4(3), which was explained above, as it aims to prevent people with a law degree and lawyers from serving as experts.
The defendant Authority argued that Article 10(4) of the Expertise Law No. 6754 stipulates that persons having a law degree shall not be registered in the expert register and list unless they document that they have a different specialization apart from law and they meet the conditions set out under the first paragraph, and that the disputed rules were established in accordance with Article 16(12) of the Regulation.
The Council of State Prosecutor remarked that an expert examination is a mechanism applied where the determination of the technical characteristics of the case and the actual situation requires special and technical knowledge exceeding the professional knowledge of the arbitrator, and therefore it is only applied where it is compulsory to apply to an expert with the aforementioned knowledge and expertise for the resolution of the dispute. The Prosecutor also stated that it does not breach the law, public service, or public interest to appoint people who received training in relevant math, retirement math, financial math, actuarial software, land vehicles, health, agriculture, fire, and natural disasters to be experts in risk measurement and management to assist people and institutions regarding the risks they encounter. Also, the Prosecutor took the view that the case should be dismissed by indicating that the other points raised in the petition did not violate any higher norms or the law.
On the other hand, with the decision dated 13.10.2021 and numbered 2016/13780 E. and 2021/4716 K., the 10th Chamber of the Council of State ruled that the qualifications to be sought in the experts to serve the Insurance Arbitration Commission should be stipulated by a regulation to be published in the Official Gazette considering the purpose, scope, and field of the disputed rules, and stipulating the said matters in the form of procedures and principles was not in compliance with the law. Due to the reasons explained above, it has been decided to annul Article 5(1) and Article 4(3) of the Rules and Procedures.
During the trial, the Regulation on Expertise at the Insurance Arbitration Commission was issued in the Official Gazette (30749) dated 18.04. 2019, which entered into force four months after its publication. The defendant Authority filed an appeal against the decision on grounds that the case is now devoid of subject matter as the Insurance Arbitration Commission Expertise Regulation is in effect.
With the decision dated 06.10. 2022 and numbered 2022/1046 E., 2022/2750 K., the Plenary Session of the Chambers for Administrative Cases of the Council of State dismissed the appeal request and upheld the 10th Chamber of the Council of State’s decision dated 13.10. 2021 and numbered 2016/13780 E., 2021/4716 K., by stating that the appealed decision was in line with the law and procedure.
Since the Insurance Arbitration Commission's Regulation on Experts does not include a special regulation for people with a law degree, it is considered that the final annulment decision paved the way for individuals specialized in law and lawyers to practice as experts at the Insurance Arbitration Commission. On the other hand, it is important to stress that, in parallel to the Civil Procedure Code No. 6100, the Regulation on Expertise at the Insurance Arbitration Commission reads that experts cannot provide any explains, qualifications or evaluations in their reports unless it pertains to a matter which requires expertise, special knowledge, or technical knowledge.
[1] The Article 4/(1) of the Rules and Procedures Regarding Experts at the Insurance Arbitration Commission regulates the requirements for real persons to be an expert witness.