1. There is no disagreement in the legal literature or the case law concerning the separability of an arbitration clause from the “main” contract. It is consistently accepted that the validity of an arbitration clause should be evaluated autonomously. Even when it is included in the form of a clause in the “main” contract, the arbitration agreement is not a provision of the contract, and thus its effectiveness is examined independently.
2. The assessment of the existence of authorization of an attorney-in-fact to conclude the arbitration agreement should be made independently of the assessment of the existence of the attorney’s authority to conclude the legal act which is the source of the legal relationship out of which disputes are to be submitted to the jurisdiction of the arbitral tribunal. Consequently, the assessment of the effectiveness of the authorization to conclude the arbitration clause is independent of the assessment of the effectiveness of the authorization to conclude the “main” contract, and a determination that the attorney-in-fact was duly authorized to conclude the contract will not be controlling for the assessment of whether he was also duly authorized on behalf of the principal to submit disputes arising out of the contract to the jurisdiction of the arbitral tribunal. In other words, the law governing the arbitration agreement itself does not extend to issues connected with the power of attorney, i.e. issues connected with the authorization to conclude the arbitration agreement do not fall within the scope of the statute of the arbitration agreement.
3. The requirement of a power of attorney to make a specific transaction must arise pursuant to a statute ([Civil Code] Art. 98, end of the second sentence), which means that the requirements for this cannot be imposed if not expressly provided for a given action by any statute. No statute provides for such a requirement with respect to the type of power of attorney in relation to an arbitration agreement. This means that there are no grounds for holding that an arbitration agreement could be concluded only by an attorney holding a power of attorney for this specific action; such a power of attorney is therefore not essential for the effectiveness of the arbitration agreement, although obviously it is sufficient.
4. Generally, an arbitration agreement is an act exerting a direct impact on the manner of realization of the legal protection to which the party is entitled. The rank of an arbitration agreement and its procedural consequences are thus serious enough that concluding an arbitration agreement should be treated as an act outside the ordinary course of business. Its effects are of a procedural law nature, shaping the procedural situation of the party bound
by the agreement.
5. In the field of international arbitration, written form [for an arbitration agreement] understood [as the exchange of documents by email] is indeed sufficient, even if it does not meet the requirements for written form provided by the Civil Code.
Publication date: 02-03-2017 | Case no.: V CSK 392/16Key issues: arbitration agreement