Polish Supreme Court ruling
dated 15 September 1936
Case No. C I 398/36
Summary by arbitraz.laszczuk.pl:
In an arbitration in the Wilno region (subject to the former Russian Civil Procedure Code) between Jan H. and Alina N., Jan H. applied to the regional court to appoint a new arbitrator to replace the arbitrator appointed by Alina H., who would be abroad at the time the arbitration hearing was scheduled to be held, in March 1935. The court granted the motion and appointed a new arbitrator.
Alina H. filed an interlocutory appeal with the Wilno Appellate Court, which refused to consider the appeal because the Polish Supreme Court had held in an earlier case (ruling dated 9 May 1935, Case No. C I 2997/34) that under the Russian Civil Procedure Code an order by the court appointing an arbitrator was unappealable.
On cassation appeal, the Polish Supreme Court held that its previous ruling applied only to the original appointment of arbitrators by the court. This case involved replacement of an arbitrator appointed by one of the parties, and under the Russian Civil Procedure Code the party would have the right to appoint a new arbitrator if the arbitrator the party originally appointed could not serve. Consequently, the order by the regional court in this case was appealable.
The Polish Supreme Court vacated the decision of the Wilno Appellate Court accordingly and remanded the case for reconsideration.
Excerpt from the text of the court’s ruling:
Art. 1376 of the [Russian] Civil Procedure Code provides that changes in the persons serving as arbitrators may occur upon mutual consent of the parties. In instances of resignation, exclusion or failure to perform their duties by the arbitrators, a new arbitrator is appointed by the party who appointed the outgoing arbitrator. A party’s failure to appoint a new arbitrator does not stay consideration of the dispute, and the resolution by the remaining arbitrators will be lawful. It follows from the foregoing that intervention by the court in such a case is excluded.