Polish Supreme Court ruling
dated 19–26 October 1936
Case No. C II 1267/36
Summary by arbitraz.laszczuk.pl:
Leon and Roman B. obtained an arbitration award against Maria S. in 1929, issued by a panel of three arbitrators. In March 1932 an enforcement clause was issued for the award, signed by two of the three arbitrators from the panel that had issued the award. Both the award and the enforcement clause were governed by the former Austrian Civil Procedure Code, which was still in force in the region of Tarnów, Poland, which had been located in the Austrian-controlled region of Galicia, prior to enactment of the Judicial Execution Procedure Law of 27 October 1932.
The creditors subsequently applied to the Tarnów Regional Court for issuance of an enforcement clause for the same award. The enforcement clause was issued, and the order issuing it became legally final when it was upheld on appeal by the Cracow Appellate Court in 1934.
When the creditors commenced execution on the award against the debtor’s assets in several localities, the debtor commenced an action in the Tarnów Regional Court to quash the execution. The regional court ruled against the debtor, as did the Cracow Appellate Court.
On cassation appeal to the Polish Supreme Court, the court found that the enforcement clause signed by two of the three arbitrators was defective, and should be supplemented, but the Polish state court had no jurisdiction to do so. Nonetheless, because an enforcement clause had in fact been issued with respect to the arbitration award, under the prior Austrian law, the regulations introducing the new law in 1932 did not permit the Polish court to issue a new enforcement clause for the same award. Consequently, the Supreme Court amended the order by the lower court to quash the execution.
Excerpt from the text of the court’s ruling:
The executable writ on the basis of which the defendants commenced the execution measures against the plaintiff referred to in the operative wording of the judgment is an arbitration award whose legal finality and enforceability were confirmed by two of the three arbitrators who issued the award. ... Although the [enforcement] clause was defective and did not meet the requirements of §54(3) of the Execution Ordinance, the clause may not be deemed to be non-existent because it was signed by two of the arbitrators, and thus the award may not be regarded as one as to which an enforcement clause has not been issued, particularly as the defendants have taken execution measures against the plaintiff on the basis of the award, with such clause affixed. While it is true that the clause requires supplementation, the state courts are not authorized to effect this, as neither Art. 68 of the Regulations Enacting the Judicial Execution Procedure Law nor the other regulations cited in the resolution appealed against vest such authority in them. Therefore, as the plaintiff has demonstrated that an event resulting in the enforceability of the award in question did not occur, her action to quash the executions referred to in the operative wording of the judgment is justified under Civil Procedure Code Art. 566 §1.