Warsaw Court of Appeal order
dated 31 March 2015
Case No. I ACz 358/15
Summary by arbitraz.laszczuk.pl:
In an arbitration in Poland under the UNCITRAL Arbitration Rules between a Polish contractor and the Director General for National Roads and Motorways (GDDKiA) (for the Polish State Treasury), an award was issued granting unspecified non-monetary relief in four points and making an award on costs in the fifth point which provided only that the contractor shall be responsible for 25% of the costs of the arbitration (including the arbitrators’ fees) and GDDKiA shall be responsible for 75% of the costs. The justification for the award included a point outlining and totalling the costs (over EUR 567,000). These amounts were not disputed between the parties. The parties had exchanged correspondence concerning the costs, and GDDKiA had undertaken to pay its share of the costs upon enforcement of the award.
The company applied to the Warsaw Regional Court for recognition of the award in points 1–4 and for enforcement of the award in point 5 by issuance of an enforcement clause for the amount of the costs to be paid by GDDKiA. The court granted recognition of the award in points 1–4 but denied enforcement of the award in point 5 because the award did not specify the amount to be paid, thus requiring the court to interpret the award to reach a figure, which the court was not entitled to do in a proceeding seeking issuance of an enforcement clause.
The company appealed, and the Warsaw Court of Appeal held that the award as a whole was clear and undisputed, and determining the amount subject to enforcement required a mere mathematical calculation. The court of appeal determined the amount in question and amended the order below to issue an enforcement clause for point 5 of the award in an amount of over EUR 141,000, equal to the balance of 25% of the arbitrators’ fees and expenses for which GDDKiA was liable to the contractor.
Excerpts from the text of the court’s ruling:
1. Rulings of arbitration courts, like rulings of foreign courts, may have content departing from the requirements imposed on such domestic rulings by Polish law.
2. The absence of an express regulation with respect to adjustment of arbitration rulings does not exclude such adjustment if as a result of an indubitable interpretation of the arbitration ruling it is possible to conduct an interpretation of the foreign writ so that it would exert the same effects as a domestic ruling by indentifying the relief and its scope.
2. As Art. 783 §1 of the Civil Procedure Code provides for the possibility of including in the enforcement clause, when needed, information concerning identification of the relief subject to execution and the scope of execution, this means that the possibility of the court making an interpretation of a writ of execution in the form of a ruling of an arbitration court is not excluded if it involves only identification of the relief and its scope.
3. Only in a situation where making an objective interpretation is not possible should the application be denied, because issuance of an enforcement order which the execution authorities cannot execute would conflict with public order. Interpretation does not consist of issuing the court’s own ruling, replacing or amending the ruling of the arbitration court, but should only display or make more understandable the intention of the arbitration court already expressed in the ruling—even if it is set forth imperfectly and inadequately defined for purposes of its enforcement—and in this respect help give effect to that intention.
4. It is incorrect to refuse to issue an enforcement clause solely because the award somewhat less precisely describes the scope of the parties’ settlements with respect to the costs of the proceeding.