Polish Supreme Court order
dated 16 March 2000
Case No. I CKN 1507/99
Summary by arbitraz.laszczuk.pl:
In 1991 the Polish State Treasury entered into a joint-venture agreement (with an Italian company, L. SpA) which included a clause calling for arbitration in Vienna under UNCITRAL rules. In 1992 Agencja K.-R. SA and the legal predecessor of H. sp. z o.o., respectively, acceded to the joint-venture agreement in place of the original parties.
Subsequently Agencja K.-R. SA filed a complaint in the Polish province court seeking delivery of a construction site under the joint-venture agreement and the right to usufruct of the site. In 1997, the province court initially refused to dismiss the claim based on the defence of the arbitration clause. Following a set of interlocutory appeals through the Supreme Court (Case No. I CKN 1020/98), however, in 1998 the province court dismissed the action on the grounds of the arbitration clause.
The plaintiff appealed on the grounds that the litigants were not bound by the arbitration clause because they were not the original parties to the arbitration clause. The appellate court denied the appeal, and the Supreme Court denied the cassation appeal, holding that the litigants had acceded to all of the provisions of the joint venture agreement, including the arbitration clause, and thus the claim was arbitrable.
Excerpts from the text of the court’s ruling:
1. Exclusion of the jurisdiction of the court and submission of a specific dispute to the jurisdiction of the arbitration court is determined by the agreement of the parties—concluded within the framework laid down by law. With respect to the form of such contract, under the requirements of Civil Procedure Code Art. 698 §1 and Art. 1105 §2, it must be a written agreement. While both of those regulations refer to conclusion of an agreement by the parties, ... when the agreement provides for the possibility of accession to the agreement by new entities, if they make such accession such entities are bound by the contents of the entire agreement, including the arbitration clause. ... When acceding to such agreement, the new entities need not conclude a separate agreement with respect to the arbitration clause, as the declaration of the intention of accession, made in writing, also means acceptance of the arbitration clause included in the agreement. The requirement with respect to the content and the form of such agreement is thus fulfilled.
2. A foreign arbitration court may be competent to resolve a dispute between entities that do not meet any of the characteristics of “foreignness” mentioned in Civil Procedure Code Art. 1105 §2, i.e. a registered office abroad, Or operating an enterprise there which is connected with the dispute that has been instituted. … Fulfilment of such requirements, i.e. the foreign element, by any of the parties is determined as of the time of conclusion of the jurisdictional agreement, and not as of the time of commencement of the dispute between the parties who are bound by the arbitration clause.