id: 20355

Polish Supreme Court order dated 20 May 2011 Case No. IV CZ 18/11 »

1. Final refusal to issue an order enforcing an arbitration award definitively eliminates the possibility of treating the award as equivalent to a state court judgment, and thus eliminates the result of the proceeding up to that point before the arbitration court.

2. Without doubt, the debtor has standing to file a petition to set aside an arbitration award. The creditor is deprived of such possibility, however. A party satisfied with the resolution may only commence a proceeding provided for in Civil Procedure Code Art. 1212 §2. In the situation of the creditor, the proceeding for recognition or enforcement of the award is the only procedure available to such entity for review of the propriety and legality of the determination by a domestic arbitration court.

3. The Civil Procedure Code provides for two forms of review of the rulings of the arbitration court. Alongside the proceeding for enforcement of the rbitration award is the petition to set aside the arbitration award. ... These are independent proceedings, based on independent grounds. ... From the point of view of the proceeding before the state court, the case is definitively ended only by the proceeding on the petition to set aside the arbitration award.

4. An order on recognition or enforcement of an arbitration award issued abroad—unlike an order on recognition or enforcement of a domestic arbitration award—is analogous to rulings issued in the main proceedings on the merits of the case.

5. A cassation appeal on recognition or enforcement of a domestic arbitration award is impermissible.

Case no.: IV CZ 18/11  

Key issues: petition to set aside arbitration award, recognition and enforcement of domestic arbitration award, recognition and enforcement of foreign arbitration award

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: 20294

Warsaw Appellate Court order dated 24 September 2009 Case No. I ACa 995/08 »

1. The New York Convention does not contain provisions indicating the form in which the parties should make a choice of law governing the arbitration clause. Art. V(1)[(a)] of the New York Convention does not require that the choice of law governing the arbitration clause be made in writing. The term “indication” should be interpreted to mean behaviour by a person in the form of writing, or any other behaviour that sufficiently reveals the person’s intent. Art. VI(2) of the European Convention on International Commercial Arbitration made at Geneva on 21 April 1961 uses the term “indication” without specifying the form, and thus “indication” should be interpreted as any behaviour by the parties indicating their joint intent.

2. It is not possible to conclude a settlement where, based on the nature of the disputed legal relations, the parties cannot freely dispose of the rights. Thus the appellate court holds that a dispute over the effectiveness of an agreement on sale of shares in a limited-liability company is not arbitrable.

3. The plaintiff determines who is a party when it initiates a dispute. The attribute of being a party is purely formal in nature and is not tied to the existence of a substantive legal claim, nor does it determine the jurisdiction of the arbitration court to decide the merits of the case. In a case where the arbitration court finds that it lacks jurisdiction over a “party,” it cannot be inferred that the ruling on the merits of the dispute is binding on that party. The party was not a party to the dispute on the merits because the arbitration court did not have jurisdiction over it.

4. Assessment of procedural acts of the parties in an arbitration proceeding lies within the power of the arbitration court, and a court ruling on recognition of an award may not make assessments contrary to that of the arbitration court, or assessments under the Polish Civil Procedure Code, which was not applicable in the proceeding before the arbitration court.

5. The state court is bound by the ruling of the arbitration court concerning its lack of jurisdiction to resolve specific disputes, regardless of whether the arbitration court’s interpretation of the scope of the arbitration clause was correct or not. It is clear that the arbitration court is authorized to rule on its own jurisdiction.

6. In order to decide on its jurisdiction, the arbitration court must consider the grounds for or against its jurisdiction. This cannot mean, however, that in cases in which the same issues are decisive of both the jurisdiction of the arbitration and the resolution on the merits the authority to resolve the issue of jurisdiction is also authority to decide the merits of the dispute. Otherwise the party would de facto be deprived of the ability to effectively assert the defence of lack of jurisdiction on the part of the arbitration court.

7. None of the provisions of law providing the arbitration court the authority to decide on its jurisdiction and analyze all factual and legal issues necessary to perform this task provides it a priori authority to decide the merits of the case. If the jurisdictional determination is negative, the arbitration court must refrain from deciding the merits of case. Review of the merits in such instance serves only as a basis for the jurisdictional ruling.

8. It is impermissible that res judicata effect of a ruling by the arbitration court would exert effects in Poland with respect to persons not covered by the legal finality of such ruling in the country of origin.

Case no.: I ACa 995/08  

Key issues: arbitrability of dispute, arbitration clause, jurisdiction of arbitration court, recognition and enforcement of foreign arbitration award

id: 20266

Polish Supreme Court order dated 24 June 2009 Case No. I CSK 538/08 »

1. Where Civil Procedure Code Art. 1215 §1 states that the court “shall rule after conducting a hearing,” it refers only to a court of first instance, as in the preceding Art. 1214 §1.

2. Civil Procedure Code 1151 §2 categorically states that with respect to enforceability of a ruling of a foreign court, “the court shall rule after conducting a hearing,” with no more specific explanation of the stage of the proceedings to which this requirement applies. Notwithstanding such wording, neither the doctrine nor the precedent has taken the view that a court of second instance is required to consider an interlocutory appeal at a hearing. To the contrary, it is accepted under Civil Procedure Code Art. 397 §1 in connection with Art. 13 §2 that it should be considered by the court in closed session. ... There is no reason to interpret the wording of Civil Procedure Code Art. 1215 §1 differently.

Case no.: I CSK 538/08  

Key issues: recognition and enforcement of foreign arbitration award

id: 20250

Polish Supreme Court order dated 4 July 2008 Case No. I CZ 139/07 »

1. An analysis of the current regulations of Part Five of the Civil Procedure Code supports ... arguments in favour of accepting the differentiation so far in admissibility of a cassation appeal from the ruling of the court of second instance on recognition or enforcement of an arbitration award issued in Poland, or issued abroad.

2. The nature of a proceeding for recognition or enforcement of an arbitration award or a settlement concluded before an arbitration court is not uniform, and must be viewed differently depending on whether the proceeding concerns an arbitration award issued in Poland or a settlement concluded in Poland, or an arbitration award issued abroad or a settlement concluded before an arbitration court abroad.

3. A proceeding for recognition or enforcement of an arbitration award issued abroad or a settlement concluded before an arbitration court abroad cannot be relegated to the role of an auxiliary proceeding as is the case with a proceeding for recognition or enforcement of an arbitration award issued in Poland or a settlement concluded before an arbitration court in Poland. This conclusion is confirmed by the broader scope of review of an award or settlement by the state court in the case of an arbitration award issued abroad or a settlement concluded before an arbitration court abroad. For these reasons, a proceeding for recognition or enforcement of an arbitration award issued abroad or a settlement concluded before an arbitration court abroad should be treated as a “counterpart” to the proceeding in the matter.

4. Pursuant to Civil Procedure Code Art. 394¹ §2 in connection with Art. 13 §2, an interlocutory appeal to the Supreme Court from an order of the court of second instance dismissing a petition to renew the proceeding in a case seeking recognition or enforcement of an arbitration award issued in Poland or a settlement concluded before an arbitration court in Poland is impermissible.

Case no.: I CZ 139/07  

Key issues: recognition and enforcement of domestic arbitration award, recognition and enforcement of foreign arbitration award

id: 20247

Polish Supreme Court resolution dated 17 January 2008 Case No. III CZP 112/07 »

1. In a case seeking recognition or enforcement of an arbitration award issued abroad, insofar as not governed by Part Five of the Civil Procedure Code, including Art. 1212, the provisions concerning trials apply (Civil Procedure Code Art. 13 §2), not the provisions concerning recognition of judgments of foreign state courts.

2. In a case seeking recognition or enforcement of an arbitration award issued abroad, the court rules in a panel of a single judge, and orders outside of the hearing are issued by the presiding judge (Civil Procedure Code Art. 47 §1 in connection with Art. 13 §2).

3. In a case seeking recognition of an arbitration award issued abroad, the court of first instance, when dismissing an interlocutory appeal in closed session, rules in a panel of a single judge (Civil Procedure Code Art. 370 in connection with Art. 397 §2, Art. 47 §§ 1 and 3, and Art. 13 §2).

Case no.: III CZP 112/07  

Key issues: recognition and enforcement of foreign arbitration award

id: 20239

Polish Supreme Court order dated 17 July 2007 Case No. III CZP 55/07 »

1. Standing to file an action [in a proceeding for enforcement of a foreign judgment] is held by a person that may rely on the ruling in question in the state of origin that is subject to the motion for endorsement [exequatur], while standing to be sued is held by the person against whom the ruling may be asserted, and thus a person that bears the obligation of performing under the judgment.

2. The position of creditor and debtor, as well as legal succession, should be assessed under the law of the state of origin of a ruling, which is obvious because otherwise there could be different treatment of the same ruling and the same persons in different countries.

3. Enforcement of a ruling in the state of performance should be denied for or against a person with respect to whom it would not be possible (or permissible) in the state of origin.

4. Standing to be sued in a proceeding [for enforcement by issuance of an enforcement clause for a foreign arbitration award] is held by a person against whom, under the law of the country of origin of the award, the plaintiff (creditor) may rely on the award for enforcement.

5. In determining the country of origin of an arbitration award, in light of the various conceptions of the location of arbitration, the country that should be considered is either the one in which the award was issued, or the one whose law was applied when conducting the arbitration and issuing the award. The law of the country thus determined becomes the proper law for assessing who is entitled to rely on the specific arbitration award or against whom the award may be enforced, subject to consideration of legal succession, if any.

6. The law of the country of origin of an arbitration award is proper ... for an assessment ... of whether an award that refers in the operative wording to an entity as the respondent that under applicable law does not have legal or judicial capacity or capacity to be sued may be relied on for enforcement against the entity that, in substantive legal terms, should have been indicated in the award as the respondent.

Case no.: III CZP 55/07  

Key issues: recognition and enforcement of foreign arbitration award

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: 20203

Polish Supreme Court order dated 9 March 2004 (Case No. I CK 412/03) »

1. The concept of “public policy” primarily extends to principles arising under the Constitution and the leading principles of specific fields of law. … Under civil contractual arrangements ... this means first and foremost the principle of the autonomy of the will of the parties and the equal standing of the parties. These principles would have been applied if the Polish court had itself applied the law under which the foreign arbitration award was issued.

2. If a ruling by a foreign court is an example of application of a legal institution that is recognized under Polish law, such ruling cannot be regarded as contrary to the fundamental principles of the legal order, and Civil Procedure Code Art. 1146 §1(5) is no barrier to recognition of the ruling by the foreign court.

Case no.: I CK 412/03  

Key issues: recognition and enforcement of foreign arbitration award

id: 20194

Polish Supreme Court order dated 20 February 2003 Case No. I CZ 10/03 »

1. Entry into force of Civil Procedure Code Art. 1148 §3 in its new wording did not exclude at all the permissibility of a cassation appeal in a proceeding for enforcement of a foreign judgment, but only prevented further reliance on Civil Procedure Code Art. 392 in connection with Art. 13 §2 for the permissibility of a cassation appeal in a proceeding for recognition or enforcement of a foreign judgment. From that point, the basis for permissibility of a cassation appeal in such proceedings thus became Civil Procedure Code Art. 1148 §3—with respect to a proceeding for recognition, express grounds, and with respect to a proceeding for enforcement, grounds by way of analogy.

2. In a proceeding for enforcement of a foreign judgment, as well as an arbitration award issued abroad, a cassation appeal ... is permissible on the basis of Civil Procedure Code Art. 1148 §3 applied by way of analogy. An order of the court of second instance concerning enforcement of a foreign judgment and an order of the court of second instance concerning enforcement of an arbitration award issued abroad are subject to review using this appellate instrument.

Case no.: I CZ 10/03  

Key issues: recognition and enforcement of foreign arbitration award

id: 20159

Polish Supreme Court order dated 9 February 1999 Case No. I CKN 887/98 »

1. A cassation appeal from an order of the court of second instance concluding the proceeding in cases seeking enforcement of a ruling of a foreign court or an arbitration award issued abroad is permissible.

2. It follows from their essence and basic functions that arbitration courts are non-state courts, established by the will of the parties, within the bounds in which they may dispose of private rights and within the framework of applicable laws. There is thus no justification for regarding arbitration courts as an organ of the state.

3. There is no requirement in [the New York Convention] that a foreign arbitration award be “capable of enforcement by way of execution,” as is provided in Civil Procedure Code Art. 1150 §1. The convention does not provide for separate proceedings for recognition and enforcement of an arbitration award, but provides uniform conditions for denial of the motion with respect to both forms of award.

Case no.: I CKN 887/98  

Key issues: recognition and enforcement of foreign arbitration award

id: 20279

Katowice Appellate Court order dated 6 October 1998 Case No. I ACz 841/98 »

It follows from the very nature of entering into a contract through implicit acts that this may involve only acts that were actually performed by the parties. In a situation where the opposing party denies submitting the dispute to the arbitration court, it cannot be said that an arbitration clause was concluded implicitly.

Case no.: I ACz 841/98  

Key issues: recognition and enforcement of foreign arbitration award, arbitration clause

id: 20156

Polish Supreme Court order dated 24 September 1998 Case No. III CKN 628/98 »

The scope of application of the 1994 Treaty between Poland and Belarus on Legal Assistance and Legal Relations in Civil, Family, Employment and Criminal Matters does not cover recognition and enforcement of arbitration awards.

Case no.: III CKN 628/98  

Key issues: recognition and enforcement of foreign arbitration award

id: 20318

Judgment of the Court of Justice of 25 July 1989, C-190/89, Marc Rich and Co. A.G. v. Società Italiana Impianti P.A. »

1. By excluding arbitration from the scope of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, by virtue of Article 1(4) thereof, on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.

2. Consequently, the abovementioned provision must be interpreted as meaning that the exclusion provided for therein extends to litigation pending before a national court concerning the appointment of an arbitrator, even if the existence or validity of an arbitration agreement is a preliminary issue in that litigation.

Case no.: C-190/89  

Key issues: recognition and enforcement of foreign arbitration award