Szczecin Court of Appeal order
dated 7 August 2009
Case No. I ACz 397/09
Summary by arbitraz.laszczuk.pl:
In 2009, a manufacturing, trade and service enterprise brought a claim in the Gorzów Wielkopolski Regional Court against a bank seeking a declaratory judgment that certain currency option (forex hedging) contracts from 2008, totalling EUR 9.6 million, between the enterprise and the bank were invalid or non-existent. The bank moved to dismiss the claim because the framework agreement from 2007 under which the disputed transactions were concluded contained a clause calling for arbitration before the Court of Arbitration at the Polish Bank Association. The regional court found that the dispute was covered by the arbitration agreement. The fact that the plaintiff was disputing the validity or existence of specific options contracts concluded under the same framework agreement did not affect the validity of the arbitration clause, which was a standalone agreement. The regional court dismissed the claim accordingly.
On interlocutory appeal to the Szczecin Court of Appeal, the plaintiff alleged inter alia that the framework agreement, including the arbitration clause, was a contract of adhesion as it was drafted by the bank and the plaintiff had no influence over its terms, and thus any ambiguity should be construed against the bank. The plaintiff also alleged that the arbitration agreement covered only disputes under the framework agreement, and the dispute in question involved separate currency option agreements, not the framework agreement.
The court of appeal found that the dispute was covered by the arbitration agreement, as was apparent from the annex to the framework agreement listing the types of transactions covered by the framework agreement, as well as the bank’s terms and conditions incorporated by reference. The plaintiff, a professional business, was seeking to apply rules of construction favouring consumers. Generally the plaintiff’s arguments against the applicability of the arbitration clause were based on a distortion of the terms in question.
The court denied the interlocutory appeal accordingly.
Excerpts from the text of the court’s ruling:
1. Submission to an arbitral tribunal of disputes arising out of a contractual relationship means that the jurisdiction of the tribunal extends to any and all claims for performance of the contract, claims arising in the event of non-performance or improper performance of the contract, claims for unjust enrichment in the event of the invalidity or repudiation of the contract, as well as tort claims arising out of an event that also constitutes breach of contract.
2. The court cannot uphold the existence of an arbitration agreement on its own initiative, but only as a defence asserted before joining issue on the merits of the case. Joining issue on the merits of the case occurs when the defendant disputes the justice of the plaintiff’s demands by asserting that it does not acknowledge the claim or applies for denial of the claim.
3. Pursuant to Civil Procedure Code Art. 1165 §2, the defence of an arbitration clause will be denied if the state court finds that the clause is invalid, ineffective, unenforceable or no longer in force, or if the arbitral tribunal has already ruled that it lacks jurisdiction. The clause is invalid if it violates mandatorily applicable provisions of the law governing the clause; ineffective, if it ceases to exert the intended effects in consequence of events arising after it is made but these are not events that cause the clause to cease to be in force. An arbitration clause may be said to be unenforceable when it is not possible to commence a proceeding before the arbitral tribunal. The statement of claim also cannot be dismissed as a result of assertion of the defence of an arbitration clause if the arbitral tribunal has previously ruled that it lacks jurisdiction.
4. It is irrelevant for whether the parties are bound by an arbitration clause that the wording of the parties’ contractual arbitration clause is identical to the wording of the arbitration clause drafted by a permanent arbitration court. The validity of an arbitration clause examined by the state court depends on fulfilment of the conditions set forth in the Civil Procedure Code.