Katowice Appellate Court order
dated 6 October 1998
Case No. I ACz 841/98
Summary by arbitraz.laszczuk.pl:
A Dutch company and a Polish company entered into three contracts in 1996 which provided for arbitration in Rotterdam under the standard terms and conditions of NOFOTA (the Netherlands Oils, Fats and Oilseeds Trade Association). The contracts were agreed by telephone by authorized persons. None of the contracts was signed by the management board of the Polish company, pursuant to the rules of representation published in the commercial register, but two of the contracts were signed by the director of sales and marketing, who was not a member of the management board and had not been appointed as a proxy.
The Dutch company commenced arbitration in Rotterdam and obtained an award in 1997 for over USD 135,000. It then filed a motion for enforcement in the Katowice Province Court. The respondent objected that there was no arbitration clause in force. The court agreed, on the grounds that under the New York Convention an arbitration clause must be in writing and the original must be presented when seeking enforcement. Even if the two contracts that were signed by someone from the Polish company were regarded as establishing an arbitration clause, the amounts due under those contracts could not be separated in the award from the amounts due under the unsigned contract.
The Dutch company filed an interlocutory appeal, arguing that the arbitration clause was an integral part of contracts that had actually been performed, and the Polish company could have raised the objection of lack of an arbitration clause, at the latest, in an appeal from the arbitration award in Rotterdam, and not in the subsequent Polish proceeding. The appellate court denied the appeal.
Excerpt from the text of the court’s ruling:
It follows from the very nature of entering into a contract through implicit acts that this may involve only acts that were actually performed by the parties. In a situation where the opposing party denies submitting the dispute to the arbitration court, it cannot be said that an arbitration clause was concluded implicitly.