Polish Supreme Court order
dated 4 April 2012
Case No. I CSK 354/11
Summary by arbitraz.laszczuk.pl:
Registered partnership J. s.j., a producer of goods, entered in a series of contracts in 2007–2009 with C. sp. z o.o., a retailer, under which the producer would supply goods to the retailer for sale in the retailer’s shops. The contracts were subject to commercial terms which included a clause calling for arbitration of disputes arising out of or related to the contracts, before an arbitration court selected by the parties, or if they could not agree on an arbitration court, then the Court of Arbitration at the Polish Confederation of Private Employers Lewiatan.
The producer filed a claim against the retailer in the regional court for payment, seeking reimbursement of unjust enrichment in the form of slotting fees paid to the retailer, alleged to be an act of unfair competition.
The defendant moved to dismiss the statement of claim on the basis of the arbitration clause. The regional court denied the motion. On interlocutory appeal, the appellate court amended the order below and dismissed the statement of claim. The court held that the claim for unjust enrichment in the form of slotting fees, alleged to be an act of unfair competition, did not arise out of the contract but was related to it.
The Supreme Court of Poland granted the plaintiff’s cassation appeal, holding that the alleged act of unfair competition did not occur in connection with the contracts, but only incidentally when the contracts were in force.
The court distinguished an earlier ruling by the Supreme Court (Case No. I CSK 311/08) finding a similar dispute over slotting fees to be arbitrable under a clause calling for arbitration of disputes related to “interpretation” of the contract, where it was disputed whether the slotting fees fell within the definition of “marketing fees” under the contract in that case.
The court also stated that extending the arbitration clause to a claim based on an alleged act of unfair competition only indirectly related to the contract containing the arbitration clause would violate the requirement that an arbitration clause precisely identify the subject of the clause. If in doubt, an arbitration clause should be interpreted in favour of limiting exclusions of access to the courts.
The court vacated the order of the appellate court accordingly and denied the defendant’s interlocutory appeal against the order of the regional court denying the motion to dismiss the statement of claim.
Excerpts from the text of the court’s ruling:
1. A claim for unjust enrichment referred to in Art. 18(1)(4) of the Act on Combating Unfair Competition, as a dispute over property rights, rests within the disposition of the parties, and thus may be the subject of a settlement between the parties. Therefore it may also be covered by an arbitration clause.
2. The defendant’s commission of an act of unfair competition, consisting of charging additional fees, was not connected with performance of the contracts, nor was it related to realization of the contracts, but was done only incidentally during realization of the contracts. … The claim pursued by the plaintiff thus is not contractual in nature and is unconnected with the substance of the contracts concluded between the parties, but concerns only the act of unfair competition committed by the defendant.
3. The precise definition of the subject of the [arbitration] clause should adequately identify the legal relationship subject to submission to the arbitration court for consideration. Specifying only that it is to be a legal relationship related to performance of a contract may not be regarded as sufficient, as it allows discretion in assessing the scope of the clause.