Polish Supreme Court order
dated 17 July 2007
Case No. III CZP 55/07
Summary by arbitraz.laszczuk.pl:
A Danish company, E.P.S., asserted a claim before an arbitration court in Copenhagen against the named respondent, the “Maritime Office in S.,” and an award was issued in the company’s favour.
The company then sought an enforcement clause for the award from the Szczecin Regional Court, naming this time as the defendant the “Polish State Treasury – Director of the Maritime Office in S.” The regional court noted that the true party was the State Treasury, but the mis-designation was harmless error and had not been objected to by the State Treasury during the arbitration proceeding. The court issued the enforcement clause.
The State Treasury filed an interlocutory appeal. The appellate court was not sure how to treat the mis-designation of the party, and submitted a certified question to the Polish Supreme Court for resolution, as follows: “Is it permissible to enforce an arbitration award issued abroad, by issuing an enforcement clause for the award under Civil Procedure Code Art. 1214 §2, where the award named as the respondent only the state budgetary unit whose activity is related to the claim upheld in the award, but the State Treasury and its proper organizational unit were not named as respondents?”
The Supreme Court refused to issue a resolution answering the certified question. Under the New York Convention and other law, the issue of whether an award issued abroad against a named respondent that did not have legal capacity to be sued could be enforced against the true party in interest must be decided in accordance with the law of the state of origin of the award, which here was apparently Denmark. Therefore the case had not been examined properly by either of the Polish lower courts and the legal question as certified, based on the Polish Civil Procedure Code, was inapposite.
Excerpts from the text of the court’s ruling:
1. Standing to file an action [in a proceeding for enforcement of a foreign judgment] is held by a person that may rely on the ruling in question in the state of origin that is subject to the motion for endorsement [exequatur], while standing to be sued is held by the person against whom the ruling may be asserted, and thus a person that bears the obligation of performing under the judgment.
2. The position of creditor and debtor, as well as legal succession, should be assessed under the law of the state of origin of a ruling, which is obvious because otherwise there could be different treatment of the same ruling and the same persons in different countries.
3. Enforcement of a ruling in the state of performance should be denied for or against a person with respect to whom it would not be possible (or permissible) in the state of origin.
4. Standing to be sued in a proceeding [for enforcement by issuance of an enforcement clause for a foreign arbitration award] is held by a person against whom, under the law of the country of origin of the award, the plaintiff (creditor) may rely on the award for enforcement.
5. In determining the country of origin of an arbitration award, in light of the various conceptions of the location of arbitration, the country that should be considered is either the one in which the award was issued, or the one whose law was applied when conducting the arbitration and issuing the award. The law of the country thus determined becomes the proper law for assessing who is entitled to rely on the specific arbitration award or against whom the award may be enforced, subject to consideration of legal succession, if any.
6. The law of the country of origin of an arbitration award is proper ... for an assessment ... of whether an award that refers in the operative wording to an entity as the respondent that under applicable law does not have legal or judicial capacity or capacity to be sued may be relied on for enforcement against the entity that, in substantive legal terms, should have been indicated in the award as the respondent.