Polish Supreme Court resolution
dated 13 July 2011
Case No. III CZP 36/11
Summary by arbitraz.laszczuk.pl:
In February 2008 a registered partnership (construction company “ABT”) entered into a framework agreement with ING Bank Śląski SA for conclusion and settlement of certain transactions. The framework agreement included an arbitration clause calling for disputes arising out performance of the framework agreement to be submitted to the Court of Conciliation at the Polish Bank Association.
In January 2010 the bank filed a claim with the arbitration court for over PLN 42 million against the registered partnership, partner Stanisław B., and the acquirer of the registered partnership, construction company A. sp. z o.o., alleging joint and several liability of the respondents. The bank alleged that the arbitration clause covered disputes arising out the legal relationship under the framework agreement, and the original designation of the parties was irrelevant.
In May 2010 the arbitration court denied the respondents’ objection to its own jurisdiction. The respondents sought a ruling from the regional court, which in September 2010 issued an order denying the objection to the jurisdiction of the arbitration court. According to the regional court, the arbitration clause covered specific disputes
rather than specific parties, and thus it covered the registered partnership as well as
the other respondents.
The respondents filed an interlocutory appeal with the Katowice Court of Appeal, which had significant legal doubts and thus submitted a certified legal question to the Polish Supreme Court: whether an arbitration clause is effective against persons who are jointly and severally liable for an obligation, when they were not parties to the legal relationship subject to the arbitration clause but are only jointly and severally liable for the debts of the entity that was a party to the legal relationship.
The Supreme Court held that a registered partnership is a separate entity from the partners, and thus even though the partners are vicariously liable for the debts of the partnership they are not parties to or bound by an arbitration clause entered
into by the partnership.
The acquirer of the enterprise of the registered partnership, however, assumes the overall obligation of the partnership, including functionally related burdens, and becomes an additional debtor alongside the partnership, and thus the acquirer of the enterprise is bound by an arbitration clause entered into by the partnership before sale of the enterprise.
Excerpts from the text of the court’s ruling:
1. A joint and several debtor is not bound by an arbitration clause concluded by another joint and several debtor.
2. A partner of a registered partnership is not bound by an arbitration clause concluded by the partnership.
3. The acquirer of an enterprise (Civil Code Art. 554) is bound by an arbitration clause concluded by the seller of the enterprise with its creditor prior to sale of the enterprise, covering disputes concerning obligations connected with conduct of the enterprise.