case law

id : 20209

id: 20209

Polish Supreme Court order

dated 3 November 2004

(Case No. III CK 510/03)

Summary by arbitraz.laszczuk.pl:

A Maltese company, J.M. Ltd V.M., obtained an arbitration award in London against the Polish company I. sp. z o.o. in 2000, and in 2001 obtained an order from the English court finding that the award was valid and enforceable in the UK.

The claimant filed a petition with the regional court in Poland for enforcement of the award under the New York Convention. The claimant submitted the award but did not submit the agreement that included the arbitration clause. Instead, relying on the general provisions of the Polish Civil Procedure Code and the regulation of the Minister of Justice on legal assistance in civil proceedings, it moved to require the arbitrator who issued the award as well as the respondent to present the 1999 charter agreement which the claimant alleged contained the arbitration clause. The respondent denied that it had entered into an arbitration clause with the claimant.

The regional court denied the petition, holding that the claimant was required to submit the arbitration clause under Art. IV of the New York Convention, and could not commence the enforcement proceeding without submitting the arbitration clause and then subsequently obtain the missing document under general provisions concerning production of evidence.

The appellate court affirmed, holding that the claimant could not shift the burden of producing the document under the New York Convention onto the respondent and the court.

The Supreme Court denied the cassation appeal, holding that the requirement to present the arbitration agreement under Art. IV of the New York Convention was a specific provision which could not be avoided by resorting to general provisions concerning production of evidence.

Excerpts from the text of the court’s ruling:

1. An agreement to submit a dispute to an arbitration court for resolution is a form of evidence because it demonstrates that the parties are subject to an arbitration clause under which an arbitration award was issued, and one of the conditions for enforcement of a foreign arbitration award is for the movant to demonstrate that the parties were bound by such an agreement.

2. If a specific provision imposes on a given person an obligation to present documents as evidence, there is no justification for applying Civil Procedure Code Art. 248. For this reason, Art. 248 does not apply in a proceeding for enforcement of a foreign arbitration award insofar as Art. IV(1)(b) of the [New York] Convention, as a specific regulation, imposes on the movant the obligation to present the original or a certified copy of the agreement to submit the dispute to the arbitration court for resolution. In a proceeding for recognition or enforcement of an arbitration award conducted under the Convention, the arbitration agreement thus constitutes a condition for granting the motion.

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