Supreme Court of Poland order
dated 23 January 2015
Case No. V CSK 672/13
Summary by arbitraz.laszczuk.pl:
A foreign company, H.H.I.S. Co. Ltd., obtained an arbitration award against a Polish company, L.M.H. sp. z o.o., before a foreign arbitration court, and applied to the Warsaw Regional Court for issuance of an enforcement clause for the foreign arbitration award. The regional court found that the documentation submitted by the applicant was sufficient for enforcement of the award under the New York Convention and there were no grounds to deny enforcement, and granted the application accordingly.
On interlocutory appeal, the Warsaw Court of Appeal ignored the allegations on appeal and, acting on its own initiative, amended the order appealed against to deny the application for enforcement. The court of appeal found that the arbitration agreement was filed with the regional court in the form of a photocopy, which did not constitute the original arbitration agreement or a duly certified copy thereof for purposes of Art. IV(1)(b) of the New York Convention, nor was the duly authenticated original of the award or a duly certified copy of the award submitted pursuant to Art. IV(1)(a) of the convention. The court held that these were substantive defects preventing granting of the application.
On cassation appeal by the applicant, the Supreme Court of Poland found that the applicant ultimately had submitted the award to the court in the duly certified form, and because this was merely a formal defect the failure to cure it earlier did not prevent granting the application for enforcement. On the adequacy of the form in which the arbitration agreement was submitted, the Supreme Court found that the court of appeal had not sufficiently explored the manner in which the arbitration agreement was concluded, which would affect what evidence was required to prove the existence of the arbitration agreement. Moreover, this evidence would be moot if the respondent did not dispute the existence of the arbitration agreement before the arbitration court. This was another issue which the court of appeal had failed to determine. The Supreme Court granted the cassation appeal accordingly, and issued an order vacating the order of the court of appeal and remanding the matter to the court of appeal for reconsideration.
Excerpts from the text of the court’s ruling:
1. Interpretations of Art. IV of the New York Convention must reflect its functional connection with Art. II of the convention, which specifies the requirements for an agreement including an arbitration clause. Art. II(2) of the New York Convention provides that an “agreement in writing” for purposes of Art. I(1) [sic—Art. II(1)] shall include an arbitral clause in a contract or an arbitration agreement for example in the form of an exchange of letters or telegrams. It is beyond dispute that Art. II(2) of the New York Convention contains an autonomous regulation of arbitration agreements. It is commonly accepted in the case law and commentaries that the wording of Art. II(2) of the New York Convention calls for a liberal understanding of the concept of an “agreement in writing” as the requirement for effectiveness of an arbitration clause, and requires an acceptance that the parties have freedom with respect to selection of the form of the agreement in which they submit to the jurisdiction of the arbitration court. It is thus possible to conclude such agreement also using means of reaching agreement at a distance, e.g. by an exchange of faxes or statements by email. Following this line, the view that is aptly presented in the commentaries is that the applicant fulfils the requirement of submission of the agreement in the original if it files a document which constitutes evidence of conclusion of the specific agreement, regardless of its form. Thus it is obvious that to evaluate whether the applicant has filed the required document concerning the agreement containing the arbitration clause, it was necessary to determine whether the form of the document is consistent with the manner in which the agreement was concluded. Written form of the agreement is not excluded, for example, if the respondent in the proceeding sent a fax of the text of the agreement signed by it, and the applicant placed its signature on that.
2. A condition of recognition or enforcement of an arbitration award should be the existence of the arbitration agreement, and not submission of a document confirming its conclusion. For this reason the position is also presented that the applicant’s failure to submit the agreement referred to in Art. IV of the New York Convention does not prevent granting the application if the existence of the clause for arbitration before a foreign arbitration court is undisputed.