Polish Supreme Court order
dated 16 October 2014
Case No. III CZ 39/14
Summary by arbitraz.laszczuk.pl:
G.P. SA, a party to an arbitration against Drukarni B. sp. z o.o. sp.k. which was pending before the Court of Arbitration at the Polish Chamber of Commerce in 2013, challenged one of the arbitrators and sought a ruling from the regional court. The challenge was denied by the regional court in September 2013. The petitioner filed an interlocutory appeal with the court of appeal, which was dismissed in January 2014. The petitioner sought to file a cassation appeal against that order with the Supreme Court of Poland, but it was rejected by the court of appeal, which held that no cassation appeal was available because the challenge to the arbitrator was an incidental issue and the denial of the challenge was not a ruling ending the proceedings in the case.
The petitioner filed an interlocutory appeal with the Supreme Court, alleging violation of its right to a fair trial and its right to appeal. The respondent alleged that the challenge to the arbitrator was moot because in the meantime, in December 2013, the arbitral tribunal had issued an award in the case, and in January 2014 the petitioner had filed a petition to set aside the award.
The Supreme Court upheld the ruling of the court of appeal that the challenge to the arbitrator was an incidental matter not ending the proceedings in the case. The proceedings in the state court in the arbitration case would end with the proceeding to set aside the award. Therefore a cassation appeal was not permissible at this juncture. However, the court pointed out that the challenge to the arbitrator was not rendered moot because of issuance of an award, because the allegation that the arbitral tribunal was improperly empanelled could be raised in the proceeding to set aside the award.
The Supreme Court denied the interlocutory appeal accordingly.
Excerpts from the text of the court’s ruling:
1. The subject of a ruling ending the proceedings in the case is the resolution of the dispute defined by the statement of claim or the conclusion of the proceedings with respect to that dispute. The dispute pending before the arbitration court in which an application was filed to remove an arbitrator will end before the state court with a ruling on the petition to set aside the arbitration award. It thus cannot be said that the route to consideration of the application was closed as a result of rejection of the applicant’s cassation appeal.
2. Issuance of an award by the arbitration court does not render moot a proceeding before the state court to remove an arbitrator, which proceeding will continue until the application is decided. Granting of the application could provide possible grounds for setting aside the arbitration award. Even if the application to remove an arbitrator has not been ruled on, a party which complied with the deadline for filing such application does not lose the right to rely on the existence of grounds to remove the arbitrator in the petition to set aside the award.