Polish Supreme Court order
dated 2 December 2009
Case No. I CSK 120/09
Summary by arbitraz.laszczuk.pl:
The parties entered into cooperation agreements for distribution of plaintiff’s products in the defendant’s chain of supermarkets. The agreements included identical arbitration clauses calling for arbitration of disputes arising out of or related to the agreements by the arbitration court at the Polish Chamber of Commerce in Warsaw. The plaintiff alleged that the defendant charged extra “slotting” fees, not provided for in the cooperation agreements, for stocking the plaintiff’s products, and that this constituted unfair competition under the Polish Unfair Competition Act. The plaintiff brought a claim for disgorgement of unjust enrichment under the Act in the regional court, which dismissed the claim because the dispute was arbitrable. The appellate court affirmed, but the Supreme Court reversed, finding that the claim was not contemplated by the parties in the arbitration clause. The alleged act of unfair competition occurred during the performance of the agreements but was not related to the agreements.
Excerpts from the text of the court’s ruling:
1. A claim for disgorgement of unjust enrichment under Unfair Competition Act Art. 18(1)(4), as a property/financial dispute [majątkowe], lies within the disposition of the parties and may be the subject of a settlement between the parties. Therefore it may also be the subject of an arbitration clause (see Civil Procedure Code Art. 1157).
2. [The arbitration clauses in the case] expressly concern disputes arising out of or related to agreements for cooperation in the sale of goods. The act of unfair competition committed by the defendant, consisting of charging additional fees, was not ... related to performance of the agreements and did not arise in connection with performance of the agreements, but was only committed while performing the agreements.... The claim asserted by it thus is not contractual in nature and is not related to the terms of the agreements concluded between the parties, but concerns an act of unfair competition committed by the defendant. It is difficult to assume that when concluding the clauses in question the parties anticipated that one of them would commit an act of unfair competition and submitted disputes in this respect for resolution by the arbitration court. It is clear from the wording of the clauses that they concern disputes connected with performance of the agreements, and not any and all disputes arising during the time of performance of the agreements.