Polish Supreme Court order
dated 24 October 2012
Case No. III CSK 35/12
Summary by arbitraz.laszczuk.pl:
I.T., an individual, supplied goods to retail chain T. Polska sp. z o.o. under agreements for sale of goods and provision of “promotional services” from the beginning of 2008 which included a clause providing that “the parties should amicably resolve disputes arising between them.” These agreements were replaced from the beginning of 2010 by agreements for sale of goods and provision of “promotional services” with a more extensive dispute resolution clause, calling for mediation, followed by arbitration before the Court of Arbitration at the Polish Confederation of Private Employers Lewiatan, of any disputes arising out of the agreements or other legal relationships in force between the parties, no matter when they arose, including not only claims for performance or breach of the agreements but also claims for unjust enrichment or restitution of undue consideration if the agreements were invalid or renounced, and any tort claims arising out of a legal event connected with performance of the agreements or also constituting breach of the agreements.
In 2011, the supplier filed a claim against the retailer in the regional court for unjust enrichment in the amount of over PLN 200,000, in the form of illegal slotting fees allegedly charged by the retailer from 2008 forward. The retailer moved to dismiss the claim on the basis of the arbitration clauses in the agreements. The regional court held that with respect to slotting fees paid under the 2008 agreements, there was no arbitration clause in force because the dispute resolution clause in the 2008 agreements did not constitute an arbitration clause. The court also denied the motion with respect to slotting fees paid under the 2010 agreements, holding that although the dispute resolution clauses included in the 2010 agreements did meet the requirements for an arbitration clause, the arbitration clauses themselves constituted an act of unfair competition. In the regional court’s view, “The multi-level dispute resolution clause constitutes a complicated and costly system which conflicts with good practice and demonstrates an attempt to limit the possibility for pursuit of claims by the plaintiff, the economically weaker party.”
The appellate court denied the interlocutory appeal by the retailer with respect to the claims arising prior to conclusion of the 2010 agreements, in the amount of over PLN 100,000, holding that the arbitration clauses therein could not be applied retroactively to claims arising earlier. With respect to the claims arising after conclusion of the 2010 agreements, in the amount of over PLN 100,000, however, the court held that the claims were covered by a valid arbitration clause. The court amended the order below accordingly and dismissed those claims.
On cassation appeal by the plaintiff from the dismissal of the claims arising in 2010 or later, the Supreme Court of Poland found that a claim for restitution of illegal slotting fees was a tort claim under the Act on Combating Unfair Competition, but in theory it was arbitrable. As such tort claims were expressly covered by the arbitration clauses in question, the claims were properly dismissed by the appellate court.
The supplier also alleged that the arbitration clauses were invalid because they violated public policy. The Court of Arbitration at the Polish Confederation of Private Employers Lewiatan could not be expected to treat the supplier fairly because the retailer was a member of Lewiatan and had personal and organizational ties with Lewiatan. The Supreme Court rejected this argument, finding that there were numerous safeguards in the Civil Procedure Code, the arbitration clause, and the rules of the Lewiatan Court of Arbitration assuring the impartiality of the arbitration court and equal treatment of the parties.
The court denied the cassation appeal accordingly.
Excerpts from the text of the court’s ruling:
1. The claim for restitution of unjust enrichment pursued in this case fits within the catalogue of disputes covered by the arbitration clause, as it was stated in the agreement for provision of promotional services that the arbitration clause covers, inter alia, “claims for return of consideration provided without due grounds or not owed, arising in the event of invalidity of the agreement.” Thus if the subject of the agreement was factual activities allegedly constituting a tortious act (charging fees other than a commercial margin), the validity of such agreement should be considered in the light of Civil Code Art. 58 §1 or 2. If however the very conclusion of the agreement for provision of promotional services alongside the agreement of sale allegedly constituted an act of unfair competition, the claim stated in the statement of claim fits within the category of “tort claims, if they arise out of a legal event connected with performance of the agreement of sale or also constituting non-performance or improper performance of the agreement.” The tort claim undoubtedly arises out of a legal event (an act of unfair competition) connected with performance of the agreement of sale.
2. The mere fact of submission of a dispute for resolution by an arbitration court cannot demonstrate the inconsistency of such agreement with principles of social coexistence, because this method of dispute resolution is permissible by law. Moreover, alternative methods of resolving disputes often result in faster resolution of the dispute, which is thus less expensive and more beneficial for parties conducting business activity. Civil Procedure Code Art. 1161 §2 serves to eliminate irregularities in arbitration clauses violating the equality of the parties.