id: 20298

Polish Supreme Court order dated 6 November 2009 Case No. I CSK 159/09 »

1. Whether a given ruling of a foreign court may be legally relevant cannot be determined in advance at the time of recognition. Thus it cannot be anticipated what effects the ruling might have or in what circumstances a given entity might rely on it in the future. Thus the petitioner is right in asserting that Civil Procedure Code Art. 1145 §1 does not provide grounds to refuse recognition of a ruling by a foreign court only because in the view of the court where recognition is sought it will not exert legal effects in Poland.

2. If the petitioner [seeking recognition] appeared as a party in a proceeding before an Austrian court, it not only has a legal interest to have standing in the recognition proceeding before the Polish court, but such interest also means that if the grounds set forth in Civil Procedure Code Art. 1146 do not exist, it may obtain recognition of the award as effective in Poland.

3. A ruling denying a petition to set aside an arbitration award, formally speaking, is a merits decision and not only procedural. Such rulings thus, as a rule, are capable of recognition. It should be pointed out, however, that the dispute between the parties on the merits was resolved by the arbitration court, acting on the basis of the intent of the parties as expressed in the arbitration clause. The judgment in a proceeding to set aside an arbitration award is therefore only a resolution with respect to the state’s exercise of oversight of arbitration rulings.

4. A judgment by a domestic court issued in a proceeding upon a petition to set aside an arbitration award must be taken into consideration in a proceeding seeking recognition of a foreign arbitration award only when permitted by the provisions governing such proceeding. As grounds for denial of recognition, the Civil Procedure Code and the New York Convention provide only for the court in the country deciding on recognition of a foreign arbitration award to consider, upon motion of a party, a judgment setting aside the arbitration award.

5. Given the specific nature of an arbitration award, which is issued based on the intent of the parties, and the function performed by a foreign court that denies a petition to set aside an arbitration award, there is no legal basis for recognition of such judgment by the foreign court, which essentially involves only oversight and not the merits. The connection between such judgment by a foreign court and the arbitration award, and thus the not entirely independent nature of the judgment, is primarily a barrier to treating the judgment as a ruling that may be recognized in Poland under Civil Procedure Code Art. 1145 §1.

Case no.: I CSK 159/09  

Key issues: arbitration award, New York Convention, petition to set aside arbitration award, recognition and enforcement of foreign arbitration award

id: 20235

Polish Supreme Court order dated 22 February 2007 Case No. IV CSK 200/06 »

1. If a proceeding in which Civil Procedure Code Art. 1162 §2 may be applicable was commenced after entry into force of the amending act, then under Art. 2 [of the Act dated 28 July 2005 Amending the Civil Procedure Code] it is permissible to apply it, and the complex nature of an arbitration clause, combining properties of a substantive and a procedural legal agreement, does not prevent application of the interim regulation set forth in the code. Art. 2, being later and specific, excludes Art. XV §2 of the Regulations Introducing the Civil Procedure Code and the prohibition on retroactive application of the law set forth in Art. XXVI of the Regulations Introducing the Civil Code (Act dated 23 April 1964, Journal of Laws Dz.U. No. 16 item 94, as amended).

2. The constitutional order of priority of legal acts (Polish Constitution Art. 91(1)) requires an assessment of requirements as to form first and foremost under the New York Convention, which sets forth in Art. II (1) and (2) the requirement of written form, understood broadly to include an exchange of letters or telegrams.

3. An arbitration agreement that is dependent on an election left up to the professional, the defendant company, without indicating the rules on which the decisions of the American Arbitration Association are based, imposing on the customer foreign law that differs substantially from European law, additional difficulties in enforcing claims because of the different system of law, distance and costs, and the commonly known difficulties in obtaining a visitor’s visa to the United States, creates a situation that must be regarded as an impermissible clause for purposes of Directive 93/13 (EEC). The arbitration clause imposed on the plaintiff constitutes an impermissible contract clause which results in a situation inconsistent with Art. 6(2) of the directive and justifies renunciation of the obligation to submit the case to arbitration.

4. An interpretation of [New York Convention] Art. II (1) and (2) does not allow for the conclusion that conclusion of an agreement in an implicit manner meets the requirement for ordinary written form, without departing from the sense of the rule. Nor is there any reason for finding that acceptance of content on a website is in written form, particularly since the convention is silent on specific issues, i.e. concerning the time, place and manner of acceptance of a form available on the Internet.

5. According to [Civil Procedure Code Art. 1162 §2], the form of an arbitration clause is fulfilled also when the clause is included in correspondence or statements submitted using telecommunications in a manner that enables the content to be fixed, or a written agreement incorporating a separate document containing a provision on submission of a dispute to resolution by an arbitration court. Entering a webpage containing a form of agreement addressed to an indefinite set of readers, and online confirmation of one’s intent to conclude an agreement, does not constitute a declaration enabling the content to be fixed. In particular, a factual computer action of “confirmation,” unlike a typical electronic signature of basic, i.e. lower reliability, does not provide a basis for identifying or reconstructing the content of the declaration. This requirement would be fulfilled, however, by a declaration transmitted by e-mail enabling identification of the sender.

Case no.: IV CSK 200/06  

Key issues: New York Convention, arbitration clause

id: 20234

Polish Supreme Court order dated 18 January 2007 Case No. I CSK 330/06 »

1. The fact that the New York Convention defines “substantive” grounds for recognition ... does not change the fact that a proceeding for recognition of a foreign arbitration award must be conducted in accordance with the regulations governing the course of such proceedings, set forth partially in the convention and otherwise in the Civil Procedure Code (Art. 1145–1149, excluding Art. 1146, concerning grounds for recognition, and regulations concerning trials under Art. 13 §2). In terms of the grounds for cassation, it should be concluded that allegations concerning violation of “substantive” conditions for recognition should be asserted under the first ground for cassation (Civil Procedure Code Art. 398³ §1(1) in connection with Art. 13 §2).

2. A proceeding for recognition of a foreign ruling is a specific type of judicial proceeding generally taking a bilateral form. Those who must participate in the proceeding, apart from the movant, whose source of standing to bring suit is a legal interest (Civil Procedure Code Art. 1147 §1), include all of the persons taking part in the foreign proceeding as a party or respondent, as they are subject to the substantive legal finality of the ruling; then they have standing to be sued. This applies respectively to any legal successors of such persons if they are subject to the substantive legal finality of the ruling undergoing recognition. An exception from this rule may be allowed only in a situation in which the motion for recognition of the foreign ruling would concern part of the decision set forth in the ruling and the part does not refer to all the parties or respondents. In such case, it should be found that participation in the proceeding for recognition is necessary only for the parties or respondents in the foreign proceeding affected by the part of the ruling that is included in the motion for recognition.

3. Regulations concerning trials apply as relevant to a proceeding for recognition of a foreign ruling (Civil Procedure Code Art. 13 §2). The specific nature of such proceeding consists in the fact that it does not decide on the rights and obligations of the parties, but whether the ruling issued abroad is to be effective in Poland. For this reasons regulations concerning principal and auxiliary intervention cannot be applicable.

Case no.: I CSK 330/06  

Key issues: New York Convention, recognition and enforcement of foreign arbitration award

id: 20209

Polish Supreme Court order dated 3 November 2004 (Case No. III CK 510/03) »

1. An agreement to submit a dispute to an arbitration court for resolution is a form of evidence because it demonstrates that the parties are subject to an arbitration clause under which an arbitration award was issued, and one of the conditions for enforcement of a foreign arbitration award is for the movant to demonstrate that the parties were bound by such an agreement.

2. If a specific provision imposes on a given person an obligation to present documents as evidence, there is no justification for applying Civil Procedure Code Art. 248. For this reason, Art. 248 does not apply in a proceeding for enforcement of a foreign arbitration award insofar as Art. IV(1)(b) of the [New York] Convention, as a specific regulation, imposes on the movant the obligation to present the original or a certified copy of the agreement to submit the dispute to the arbitration court for resolution. In a proceeding for recognition or enforcement of an arbitration award conducted under the Convention, the arbitration agreement thus constitutes a condition for granting the motion.

Case no.: III CK 510/03  

Key issues: New York Convention, arbitration clause

id: 20179

Polish Supreme Court order dated 29 August 2000 Case No. I CKN 240/00 »

1. Because the respondent signed the contract, and it was undisputed that the contract was previously signed by the claimant, an “agreement in writing” was established as referred to in Art. II(2) and Art. V(1)(a) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards dated 10 June 1958 ([promulgated in Poland at] Journal of Laws Dz.U. 1962 No. 9 item 41) and in the section of the Ukrainian Code of Procedure governing the rules of the arbitration court ..., and in denying the interlocutory appeal against the order enforcing the award of the Ukrainian arbitration court the appellate court did not violate these provisions.

2. Civil Procedure Code Art. 1105 §2 governs matters subject to consideration in the situation provided for in Art. V(2)(a) of the [New York] Convention, and not in the situation governed by Art. V(1)(a) of the Convention.

Case no.: I CKN 240/00  

Key issues: New York Convention, arbitration clause

id: 20160

Polish Supreme Court judgment dated 16 February 1999 Case No. I CKN 1020/98 »

1. An agreement vesting jurisdiction in a foreign court or an arbitration court operating abroad (Civil Procedure Code Art. 1105 §§ 1 and 2) must be preceded by the existence of domestic jurisdiction. Exclusive jurisdiction of a Polish court may, however, constitute a barrier to effective conclusion of an agreement on jurisdiction. But such barrier functions only with respect to vesting jurisdiction in a foreign state court (Civil Procedure Code Art. 1105 §1, second sentence) and does not apply with respect to vesting jurisdiction in a foreign arbitration court, which is subject only to the limitations provided in Civil Procedure Code Art. 697 §1.

2. The requirement of “foreign status” of one of the parties as a condition for the permissibility of an arbitration clause as provided for in Civil Procedure Code Art. 1105 §2, refers to the phase of conclusion of the agreement on jurisdiction, and thus applies to the parties to such agreement and not the parties to the dispute covered by the arbitration clause.

3. Civil Procedure Code Art. 1105 §2 also applies to multilateral agreements. ... In the case of a multilateral agreement, it may happen that a foreign arbitration court has jurisdiction to hear a dispute between parties that are domestic entities.

Case no.: I CKN 1020/98  

Key issues: arbitration clause, jurisdiction of arbitration court, New York Convention