Polish Supreme Court ruling
dated 8 August 1931
Case No. R 395/31
Summary by arbitraz.laszczuk.pl:
Under an arbitration clause which did not name a specific arbitrator, the parties named their arbitrators, who then selected a presiding arbitrator. The arbitrator named by one of the parties accepted the appointment, then, before the hearing date set by the presiding arbitrator, resigned from the appointment. Under the former Austrian Civil Procedure Code, the parties could then elect to apply to the state court either to appoint a new arbitrator or to invalidate the arbitration clause. In this case, the party applied to the Kołyma Regional Court for a declaration that the arbitration clause was no longer in force. The court issued the declaration.
On appeal, the appellate court vacated the order of the regional court and denied the petition, holding that there was a right to invalidate the arbitration clause only when the clause named a specific arbitrator and that person then refused to serve.
On review by the Supreme Court of Poland, the court held that the right to elect to invalidate the arbitration clause also applied when the arbitrator was named by a party but then refused to serve. The court vacated the order of the appellate court accordingly and reinstated the order of the regional court declaring that the arbitration clause was no longer in force.
Excerpt from the text of the court’s ruling:
The demand for a holding that the arbitration clause is deprived of legal force is properly grounded on §583(2)(2) of the [former Austrian] Civil Procedure Code, pursuant to which an arbitration clause loses its binding force not only when an arbitrator expressly referred to in the clause refuses to perform the obligation imposed on him as a result of accepting the duties of an arbitrator, but also when this is done by an arbitrator appointed by a party pursuant to the arbitration clause. In both of these instances, both parties have a right to demand a ruling that the arbitration clause is deprived of legal force.