1. That an arbitrator has knowledge about a given legal institution and presents it, evaluates specific legal institutions and financial instruments, conducts lectures and writes publications, does not constitute a circumstance raising doubts, let alone justified doubts, as to his impartiality and independence.
2. Publication of comments of an expert nature on specific subjects, analyzing them, preparing private opinions for other entities resulting from a broader analysis of practices on the foreign exchange market, reflecting all of the market participants and their intentions, does not constitute a circumstance disqualifying an arbitrator.
3. Under Civil Procedure Code Art. 1173 §1, an arbitrator must be an independent and impartial person. These are fundamental characteristics required of an arbitrator, as an element of the right to a fair trial is the party’s right to consideration of its case by an impartial and independent court. This has to do with the absence of relations between the arbitrator and the parties to the dispute that could affect the substance of the award.
4. The IBA Guidelines on Conflicts of Interest in International Arbitration … are designed to assist in the practice of determining the circumstances that may generate justified doubts as to an arbitrator’s impartiality and independence, which circumstances are subject under applicable national law to mandatory disclosure by a candidate for arbitrator, and which are justified by the open-ended nature of the concepts of “impartiality” and “independence.” The guidelines are not of normative relevance, but establish certain standards on how to evaluate specific situations from the point of view of the requirement for the arbitrator’s impartiality and independence. They are commonly recognized in arbitration practice as a document in the nature of best practice, indicating circumstances that enable an assessment, particularly in ambiguous situations. The document sets forth general standards concerning impartiality, independence and disclosure, and a detailed section with examples of conflict of interest, classifying them in terms of the possible occurrence of justified doubts as to an arbitrator’s impartiality and independence.
5. Civil Procedure Code Art. 1174 §2 is devoted to the issue of removal of an arbitrator, providing that an arbitrator may be removed only when circumstances exist generating justified doubts as to his impartiality or independence, although there is a sound argument that the circumstances involving a state court judge can help interpret this section by analogy. When evaluating this condition, objective criteria of assessment are relevant, not the subjective beliefs of the party filing the challenge.
6. In a situation where a party aware of circumstances that could give rise to justified doubts as to an arbitrator’s impartiality or independence does not exercise its rights, it forfeits the right to reserve them until filing an application to set aside the arbitration award (Civil Procedure Code Art. 1193). A party aware of a given circumstance cannot passively wait to see what kind of award is issued in the case and then condition its actions with respect to challenging the arbitrator on the result. What is relevant is that the circumstances relied on by the party were known to the party, and when they were known.
7. Whether a party exercised its right to present to the state court the ruling on the issue of the existence of grounds to remove an arbitrator is relevant to the further course of the proceedings. In a situation where the party did not challenge the arbitrator before the state court pursuant to Civil Procedure Code Art. 1176 §2, the party forfeits this basis for subsequent challenge to the arbitration award using an application to set aside the award relying on the grounds concerning the arbitrator which were previously existing and known to the party.
Data wydania: 23-03-2017 | Case no.: V ACa 415/16Key issues: arbitrator, petition to set aside arbitration award
1. The set of fundamental principles of procedure before the arbitral tribunal includes only the rules arising under the Civil Procedure Code and the rules agreed by the parties, which does not include the custom [under §9(3) of the Code of Best Practice for Permanent Arbitration Courts, providing that a party applying for default appointment of an arbitrator subject to nomination by both parties or by the previously appointed arbitrators should notify the appointment authority of all candidacies considered and rejected by the parties or the arbitrators and none of those persons should be appointed in the default procedure].
2. The legal classification of a contract by the arbitral tribunal is not subject to review on a petition to set aside an arbitration award.
Data wydania: 18-11-2016 | Case no.: V ACa 67/16Key issues: arbitrator, arbitration procedure, petition to set aside arbitration award
1. It is permissible to seek to set aside an arbitration award in part, if the challenged resolution can be separated from the remaining part of the award.
2. In a proceeding to set aside an arbitration award, the court cannot set aside the award in part if the petitioner applied to set aside the award in its entirety and there are grounds to grant the petition. This is because a demand to set aside an arbitration award in part is not a lesser included demand in a demand to set aside the award in its entirety; it is a different type of demand. Moreover, if the particular parts of the award interlock so that none of the parts can be separated from the other parts without materially deforming the entirety, it is impermissible to set aside the award in part.
3. Informing a party only in the justification of the award that (despite denying the claim in its entirety) one of the party’s demands was not considered because the fee for that claim was not paid, when that demand was the subject of examination during the evidentiary proceeding and was the subject of the response to the statement of claim and pleadings by both parties, while at the same time granting the demands of the opposing party in their entirety, which resolution was dependent on the resolution of the plaintiff’s demands, indicates that the arbitration award is contrary to the public policy clause, depriving the party of the ability to exercise the rights provided by regulations of substantive law and also indirectly depriving the party of a defence against the counterclaims of the opposing party. This method of proceeding before the arbitration court violates the party’s right to a fair and honest trial.
4. Resolving the respondent’s demands in their entirety before resolving the claimant’s complete demand, regardless of whether or not the party could apply for supplementation of the award, is also contrary to fundamental principles of the legal order, including violation of the principle of equal treatment of the parties. Moreover, the arbitration court would already be bound by the award issued by it in the part concerning the counterclaim, and thus it could not issue a ruling with different substantive legal consequences. Undoubtedly the principles of a fair trial require that the party be informed prior to issuance of an award of the possible taking of a procedural decision as to one of the party’s claims, regardless of whether the claimant’s claim is deemed to be an alternative claim (as it was worded, in the event that the main claim is not upheld) or as a separate procedural claim in an accumulation of claims.
5. The defence of the ineffectiveness of an arbitration clause may be asserted not only by the respondent, but also by the claimant. However, it is indicated in the legal literature that in such case, the claimant, as the party initiating the proceeding before the arbitration court, should make a thorough analysis of the factual and legal state of the case, including issues connected with the grounds for commencement of the proceeding before the arbitration court, and if it concludes that the clause is ineffective, it should file the case with the state court, which upon the objection of the respondent will resolve the issue of the effectiveness of the clause. As indicated in the literature, asserting the ineffectiveness of the clause only at this stage violates the principle of due diligence which a professional participant in commercial dealings is required to comply with.
6. An arbitration clause may cease to be in force in the instances set forth in Civil Procedure Code Art. 1168 and 1195 §4 or in the bankruptcy law, or in the occurrence of certain substantive legal events (e.g. repudiation of the legal consequences of a declaration of will), including those indicated by the parties as the reasons for the clause ceasing to be in force. The mere change in the rules of the arbitration court does not result in loss of force of the clause, either under the regulations currently in force or in accordance with the regulations in force on the date of conclusion of the clause.
7. The mere fact that one of the parties to the arbitration participated in creation of the list of arbitrators by nominating candidates for arbitrators from among persons who are authorities in the given field does not mean that there is dependency between the arbitrator and the party or that the party has greater rights. Despite the indirect influence of the banks over a portion of some panels of arbitrators, the rules of the Court of Arbitration at [the Polish Bank Association] ensure the impartially of the arbitration court and do not violate the principle of the equality of the parties in the arbitration proceeding. Because there are numerous arbitrators [on the list], and the party does not know which of them will hear the case and does not select a specific person as presiding arbitrator, it cannot be found that the party had greater rights than its opponent.
8. A petition to set aside an arbitration award may concern issues of the procedure followed only if fundamental principles of procedure before the arbitration court, arising out of a statute or specified by the parties, were not complied with (Civil Procedure Code Art. 1206 §1(4)). In essence this has to do with failure to comply with fundamental principles of civil procedure, but it was not demonstrated that the arbitration court failed to comply with such principles.
Data wydania: 15-12-2014 | Case no.: VI ACa 311/14Key issues: arbitrator, arbitration agreement, arbitration procedure, arbitration award, petition to set aside arbitration award
1. The subject of a ruling ending the proceedings in the case is the resolution of the dispute defined by the statement of claim or the conclusion of the proceedings with respect to that dispute. The dispute pending before the arbitration court in which an application was filed to remove an arbitrator will end before the state court with a ruling on the petition to set aside the arbitration award. It thus cannot be said that the route to consideration of the application was closed as a result of rejection of the applicant’s cassation appeal.
2. Issuance of an award by the arbitration court does not render moot a proceeding before the state court to remove an arbitrator, which proceeding will continue until the application is decided. Granting of the application could provide possible grounds for setting aside the arbitration award. Even if the application to remove an arbitrator has not been ruled on, a party which complied with the deadline for filing such application does not lose the right to rely on the existence of grounds to remove the arbitrator in the petition to set aside the award.
Data wydania: 16-10-2014 | Case no.: III CZ 39/14Key issues: arbitrator, petition to set aside arbitration award
1. The regulations of Title III, Part Five, of the Civil Procedure Code, concerning arbitration, clearly adopt the principle of the priority of the mutual intent of the parties as to the composition of the arbitral tribunal and the manner of appointment of the arbitrators and the presiding arbitrator.
2. Appointment of the presiding arbitrator by the arbitrators may occur after the end of the one-month period following their appointment provided in the act, but before consideration of the application by the state court. … Because the basis for the Civil Procedure Code regulations concerning arbitration is to award priority to the intent of the parties, it would be groundless, irrational and contrary to a purposive interpretation of these regulations to deny the parties the right to decide for themselves on the composition of the arbitral tribunal solely because a court case is already pending concerning this—prior to issuance of a judicial ruling. The one-month period under Civil Procedure Code Art. 1171 §2 should be regarded as establishing the right of a party to file an application to the state court for appointment of an arbitrator or presiding arbitrator, and not as a preclusive period after which the parties lose the right to decide for themselves on whom to appoint as members of the arbitral tribunal.
Data wydania: 07-03-2014 | Case no.: I ACz 121/14Key issues: arbitrator, arbitration procedure
1. Because the [New York] Convention exhaustively governs the grounds for recognition and enforcement of a foreign arbitration award (Art. V of the Convention), the Polish court may not resort to Art. 1215 § 2 in connection with Art. 1214 § 3 (2) of the Civil Procedure Code.
2. The arbitrator’s and counsel’s membership in the same barristers’ chambers does not automatically constitute a source of a conflict of interest but should be considered on a case-by-case basis.
3. In a proceeding for enforcement of a foreign arbitration award, the public policy clause cannot take the place of the procedure for appointment of an arbitrator which the party to the arbitration proceeding declined to follow and which served to reduce the risk of abuse of non-meritorious objections concerning the independence and impartiality of the arbitrator after the completion of the arbitration proceeding.
Data wydania: 11-02-2014 | Case no.: I ACz 1475/13Key issues: New York Convention, arbitrator, recognition and enforcement of foreign arbitration award
1. An arbitrator must not be connected to any of the parties to the proceeding; he should be free of any obligations and pressures, and in performing the duties of arbitrator should decide solely in accordance with his own determination, based on the material gathered in the case. Disclosure of such circumstances must be made promptly after the person is appointed as arbitrator or the circumstances arise. [Civil Procedure Code Art. 1174 §1] also refers to circumstances that could raise doubts as to the impartiality or independence of the arbitrator, not circumstances that do raise doubts.
2. The opposing party, and the not the arbitrator, is given the right to make an assessment of whether the circumstances disclosed by the arbitrator raise doubts or not, and potentially to initiate the procedure pursuant to Civil Procedure Code Art. 1176 §§ 3 and 4, including filing of an application to the state court to remove the arbitrator. It must be clearly stressed, however, that the existence of circumstances that could raise a doubt as to the independence or impartiality of an arbitrator is not equivalent to a finding of a lack of impartiality or independence of the person appointed as arbitrator.
3. The right to make a setoff is a subjective right of the holder and cannot be limited in its realization. Asserting this objection is also a procedural form of the respondent’s defence against the claimant, which it cannot be deprived of. In considering the defence of setoff asserted by the respondent as part of the examination of the justification for the principal claim, the arbitration court did not have to condition this examination on the existence of an arbitration clause in this respect.
4. The jurisdiction of the court considering a petition to set aside an arbitration award generally does not include review of the consistency of the award with substantive law or an examination of the correctness of the factual findings, other than a ruling based on a clearly selective and unobjective assessment of the evidence. Here, the grounds for the arbitration award are extensive, multifaceted and based on the indicated evidence, and explain the basis for the finding by the arbitration court that the claim for damages by the principal respondent asserted as a setoff to the claim of the principal claimant existed in the specified amount and the effectiveness of the setoff made, which resulted in denial of the principal claim. Examination of the justification for the petition is therefore not equivalent to substantive review of the award. Moreover, the appellant must remember that in deciding to submit the dispute for resolution by an arbitration court, it must be aware of both the positive and negative consequences. On one hand, the contracting parties are not exposed to the risk of lengthy proceedings, but on the other hand they waive certain procedural guarantees which apply in proceedings before the state court. Nor was there any barrier to the proceedings before the arbitration court being conducted in two instances (Civil Procedure Code Art. 1205 §2).
Data wydania: 15-01-2014 | Case no.: VI ACa 663/13Key issues: arbitrator, arbitration agreement, arbitration procedure, petition to set aside arbitration award
1. Even though (if the parties did not agree otherwise) the arbitral tribunal shall resolve a dispute applying the regulations of substantive law applicable to the legal relationship, violation of substantive law by the arbitral tribunal is grounds for a petition to set aside the award only if as a result of the violation, the award is contrary to fundamental principles of the legal order of the Republic of Poland. In other words, if despite a violation of substantive law the award cannot be said to be contrary to fundamental principles of the legal order, the mere violation cannot constitute an effective basis for demanding that the award be set aside.
2. The construction of a petition to set aside an arbitration award indicates that this measure is not used to conduct substantive review by the state court of the correctness of the resolution by the arbitral tribunal, similar to appellate review in judicial proceedings.
3. An award is contrary to fundamental principles of the legal order when this concerns constitutional principles of the socio-economic system or leading principles governing specific fields of substantive law. The fundamental principles of the legal order constituting the basis for evaluation of an arbitration award should be understood not only as constitutional norms, but also the leading norms in specific fields of law. … The procedural legal order may be the basis for evaluation of an arbitration award in two aspects. First, the compliance of the procedure which led to issuance of the arbitration award with fundamental procedural principles of the legal order is subject to evaluation. Second, the consequences of the arbitration award from the point of view of their compliance with the procedural public order are subject to evaluation, i.e., whether they are reconcilable with the system of procedural law, e.g. whether they violate res judicata or the rights of third parties.
4. A party forfeits the right to challenge an arbitration award through a petition to set aside the award due to failure to raise objections to an arbitrator subject, in the party’s view, to removal, if the party did not demand removal in the proceeding before the arbitral tribunal.
5. The requirements established for persons serving as arbitrator should be combined with the entitlement of a party to the proceeding to obtain knowledge about any potential ties between the arbitrator and the entities appearing in the proceeding. Generally it is left to the party to evaluate whether the circumstances constitute grounds for a decision whether to select an arbitrator or a decision to challenge the arbitrator. In this sense, the arbitrator’s own assessment is irrelevant, as the essence of the fairness of the procedure is connected with external evaluations made by others.
6. Indeed, the right to a fair trial provided in Art. 45(1) of the Polish Constitution, an element of which is consideration of the case by an independent court in a fairly conducted proceeding, does fall within the fundamental principles of the legal order whose violation the state court must examine at its own initiative. However, it is indicated in the case law and the legal literature that Art. 45 of the Constitution does not apply at all to arbitration, only the state courts.
7. The institution of recusal of a judge is provided for by the Civil Procedure Code both in proceedings before the state court and in proceedings before an arbitration court. The fundamental difference in the regulation of this institution is that in a proceeding before an arbitration court, the code does not provide for removal of the arbitrator or presiding arbitrator by operation of law, as is the case with respect to a judge in proceedings before the state court (Civil Procedure Code Art. 48). The grounds for challenging an arbitrator indicated in Civil Procedure Code Art. 1174 §2 are circumstances raising justified doubts as to his impartiality or independence, as well as lack of qualifications specified in the parties’ agreement. The grounds for recusal of a judge listed in Art. 48 and 49 do not apply to challenge of an arbitrator, but in interpreting the concept of circumstances raising justified doubts as to impartiality or independence Art. 48 and 49 may have auxiliary application. In a proceeding before a state court, under Civil Procedure Code Art. 379(4), participation by a judge recused by operation of law becomes grounds for the invalidity of the proceeding and constitutes grounds to vacate the judgment by the appellate court, as well as by the Supreme Court, and this ground shall be considered by both of these courts at their own initiative (Civil Procedure Code Art. 378 §2 and 39311). … The Civil Procedure Code does not provide for such absolute invalidity in proceedings before an arbitration court. If a party did not challenge an arbitrator or presiding arbitrator despite possessing knowledge of the grounds for challenge, there are no legal grounds to challenge the arbitration award. As an exception only, participation in an arbitration panel by an arbitrator or presiding arbitrator whose rights and obligations could be affected by the result in the case could constitute grounds for setting aside the award, which did not occur in this case. This is because violation of the principle that no one can be a judge in his own case (nemo in re sua judex) would undoubtedly conflict with the fundamental principles of the legal order of the Republic of Poland.
Data wydania: 21-03-2013 | Case no.: I ACa 855/12Key issues: arbitrator, arbitration award, petition to set aside arbitration award
1. Violation of the principle of the equality of the parties may also occur through adoption of the specific wording of the rules of an arbitration court (Civil Procedure Code Art. 1161 §3). … Under the Civil Procedure Code provisions on arbitration, the equality of the parties means—generally speaking—awarding the parties equal rights, both within the main arbitration clause itself and in the rules of the permanent arbitration court, creating equal opportunities for the parties in the definitive resolution of the dispute covered by the agreement.
2. In determining whether the principle [of the equality of the parties] is complied with in the arbitration agreement, a clear distinction should be made between the content of the arbitration agreement itself (also including the provisions of the rules of the permanent arbitration court) and the general rules of operation of the permanent arbitration court. … The principle of the equality of the parties within the meaning of Civil Procedure Code Art. 1161 should be addressed to the content of the arbitration agreement itself, and not to such elements of an organizational nature, which only establish the necessary and proper legal and organizational infrastructure to assure the parties the ability to establish the appropriate panel of arbitrators within the individual legal dispute.
3. Organizational ties between permanent arbitration courts and various professional associations or business organizations are not determinative of a specific dependence on the organizations where the arbitration courts operate or a lack of impartiality of specific arbitrators.
Data wydania: 19-10-2012 | Case no.: V CSK 503/11Key issues: arbitrator, arbitration agreement, arbitration procedure
1. An interlocutory appeal will lie against an order by the state court, as the court of first instance, denying a motion to challenge an arbitrator.
2. The issue of the independence and impartiality of the arbitrator goes to the essence of the arbitration proceeding as a non-judicial procedure for resolving private legal disputes.
3. Impartiality is a certain intellectual attitude, a psychological state of an objective judge (or arbitrator). In opposition to this, partiality is a characteristic connected with a real or apparent biased attitude of the decision-maker in favour of one of the parties or with respect to the issues in dispute.
4. It is asserted in the literature that “independence” refers only to issues arising out of a relationship between the judge (or arbitrator) and one of the parties. Independence means the lack of any relationship between the arbitrator and the parties to the dispute, in the past or during the course of the proceeding, that could affect the substance of the decision.
5. If the deadline indicated in Civil Procedure Code Art. 1176 passes without effect, the party obtains a right to apply to the state court (within two weeks) to recuse the arbitrator.
6. The proceeding before the state court is conducted on the basis of the Civil Procedure Code. Thus the issue of the permissibility of an interlocutory appeal against the order of the state court denying the motion to recuse the arbitrator should be considered on the basis of application of Civil Procedure Code Art. 394 §1 as relevant.
Data wydania: 08-09-2011 | Case no.: III CZP 41/11Key issues: state court assistance, arbitrator
1. The impermissibility of the common court’s hearing a case because of a binding arbitration clause (absent the grounds set forth in Civil Procedure Code Art. 1165 §2) also occurs when resolution of the matter presented for determination by the common court is not possible without resolving a dispute subject to the arbitration clause.
2. The principle of equality expressed in [Civil Procedure Code] Art. 1161 §2 requires ... that neither of the parties to a dispute to be decided by an arbitration court enjoy special rights in the proceeding before such court. This plainly applies to the manner in which arbitrators are selected. This is expressly stated in Art. 1169 §3, which provides that provisions of an agreement awarding one of the parties greater rights in appointment of the arbitration court shall be ineffective. This should be applied as relevant to a situation in which a provision of this type is contained in the rules of the permanent arbitration court selected by the parties.
Data wydania: 24-11-2010 | Case no.: CSK 291/10Key issues: arbitrability of dispute, arbitrator, arbitration agreement
1. A petition to set aside an arbitration award is an extraordinary means of review intended to set aside the award if at least one of the grounds exhaustively set forth in Civil Procedure Code Art. 1206 is justified.
2. When considering a petition [to set aside an arbitration award], the state court is bound by the grounds alleged by the petitioner. Only two of the grounds set forth in Civil Procedure Code Art. 1206 §2 are considered on the court’s motion: the non-arbitrability if the dispute and inconsistency of the arbitration award with the fundamental principles of the legal order of the Republic of Poland.
3. The assessment of whether an arbitration award is contrary to fundamental principles of the legal order is addressed to the content of the award, and not the correctness of the procedure before the arbitration court or the composition of the panel. … An arbitration award may be set aside under the public policy clause if it is found that the results included in the content of the award are not consistent with a specific norm which is regarded as one of the fundamental principles of the legal order in force in Poland. ... These principles include not only constitutional norms, but also the overriding norms in specific fields of law.
4. The requirements made of persons serving as arbitrators should be combined with a party’s right to learn about any ties the arbitrator may have to entities appearing in the proceeding. It is up to the party to evaluate such circumstances as grounds for a decision to select an arbitrator or to seek removal of an arbitrator. The arbitrator’s self-assessment is irrelevant, because the essence of a fair procedure is tied to objective judgment by others. ... The fundamental principles of the legal order include the right to a court as provided in Art. 45(1) of the Polish Constitution, an element of which is a party’s right to have its case heard by an independent court, in a fairly conducted procedure.
Data wydania: 09-09-2010 | Case no.: I CSK 535/09Key issues: arbitrator, arbitration procedure, arbitration award, petition to set aside arbitration award
1. A judicial proceeding to set aside an arbitration award should be conducted through to the end in accordance with the provisions in force upon commencement of the proceeding, that is, applying Civil Procedure Code Art. 165 §1, at the time of filing of the petition to set aside the award with the proper court. Thus if the petition was filed prior to 17 October 2005 [when the law was amended], the proceeding thereby initiated should be conducted thereafter in accordance with Civil Procedure Code Art. 712–715, but a proceeding commenced by a petition filed on that date or later, in accordance with Civil Procedure Code Art. 1205–1211. Similarly, a proceeding before an arbitration court should be conducted through to the end in accordance with provisions in force upon commencement of the proceeding. However, in light of the rule set forth in Civil Procedure Code Art. 1186, the date of commencement of a proceeding before an arbitration court will generally be the date of service on the respondent of the document containing the demand for arbitration.
2. In instances in which arbitrators are appointed by each party independently, a new arbitrator appointed by one of the parties has the same status as the former arbitrator. Since the former arbitrator was unable to reach agreement on selection of a super-arbitrator and it was necessary for the super-arbitrator to be appointed by the court, the decision of the court in this respect could hardly be questioned just because of the appearance of a new arbitrator. There is no need to assure him an influence over appointment of the super-arbitrator, since his predecessor with an analogous status failed to make use of his opportunity in this respect.
3. There may be various reasons for loss of force of an arbitration clause. In addition to the procedural grounds listed in Civil Procedure Code Art. 1168 (previously Art. 702 §1) and Art. 1195 §4 (previously Art. 707 §2), it could also involve such events as dissolution of the arbitration agreement, occurrence of a suspensory condition, or lapse of the deadline by which an arbitration award should have been issued. Termination of the agreement containing the clause does not in and of itself constitute such grounds, however. This rule is now stated clearly by Civil Procedure Code Art. 1180, but should not have been in doubt prior to adoption of that provision.
Data wydania: 27-11-2008 | Case no.: IV CSK 292/08Key issues: arbitrator, arbitration agreement, arbitration procedure, petition to set aside arbitration award
In accordance with the established view in the case law, no cassation appeal lies from an order by the court of second instance appointing an arbitrator, and such cassation appeal would be inadmissible.
Data wydania: 11-05-2006 | Case no.: I CZ 20/06Key issues: arbitrator
The subject of the motion is ... to appoint arbitrators. ... Regardless of which specific arbitration court the appointment of the arbitrators is to serve, the proceeding is by its nature incidental. The ruling issued in the case thus may not be regarded as ending the proceeding in the case, which under Civil Procedure Code Art. 392 is a condition for permissibility of a cassation appeal.
Data wydania: 12-07-2005 | Case no.: I CZ 38/05Key issues: arbitrator
An order by the court of second instance denying a motion to appoint a substitute arbitrator ... is not an order concluding the proceeding in the matter within the meaning of Civil Procedure Code Art. 392 §1.
Data wydania: 17-12-1999 | Case no.: I CZ 177/99Key issues: arbitrator
1. The institution of recusal of a judge is provided for by the Civil Procedure Code in a proceeding before the state court as well as in a proceeding before an arbitration court. There are differences in how this institution is governed by the code for the two types of proceedings. The fundamental difference is that in a proceeding before an arbitration court, the code does not provide for recusal of an arbitrator or presiding arbitrator by operation of law, as is the case with a judge in a proceeding before the state court (Civil Procedure Code Art. 48).
2. In a proceeding before the arbitration court, an arbitrator or presiding arbitrator may be challenged only upon motion of a party, on the same grounds that would justify recusal of a state judge.
3. If a party challenged an arbitrator or presiding arbitrator in the arbitration, and the challenge was not sustained despite the existence of grounds for the challenge, the party may challenge the arbitration award using a petition to set aside the award under Civil Procedure Code Art. 712 §1(3). If the party did not challenge the arbitrator or presiding arbitrator, it has no legal grounds to challenge the arbitration award. Exceptionally, only participation in the arbitration panel by an arbitrator or presiding arbitrator whose rights and obligations could be affected by the result in the case could serve as a basis for setting aside the arbitration award.
4. The wording of Civil Procedure Code Art. 712 §2 indicates without Any doubt that if the decision by the arbitration court exceeds the bounds of the arbitration clause, a party may seek to set aside the award only in the portion exceeding the arbitration clause, and only in a situation in which a party that actively participated in the proceeding before the arbitration court objected to consideration of the claims exceeding the bounds of the arbitration clause.
Data wydania: 24-09-1999 | Case no.: I CKN 141/98Key issues: arbitrator
By permitting in a separate regulation (Civil Procedure Code Art. 701 §3) an interlocutory appeal against an order concerning, among other things, appointment of an arbitrator, the Parliament clearly let it be known that it does not treat them as ending the proceeding in the matter, as then the general rule set forth at the beginning of Civil Procedure Code Art. 394 §1 would apply.
Data wydania: 24-02-1998 | Case no.: I CKN 455/97Key issues: state court assistance, arbitrator
1. Because Part 1, Chapter 3 of the Civil Procedure Code, covering the issue of arbitration, does not contain a special regulation on admissibility and deadlines for appellate instruments, the regulations from Chapter 1 will apply as relevant, including among them Civil Procedure Code Art. 392.
2. An order of the province court denying an interlocutory appeal from an order of the district court concerning appointment of an arbitrator and presiding arbitrator may not be regarded as an order ending the proceedings in the case. From the point of view of the proceedings before the state court, the case is ended only by an order ending the proceeding on the petition to set aside the arbitration award (Civil Procedure Code Art. 715), or, as the case may be, an order dismissing the statement of claim because of the existence of an arbitration clause (Civil Procedure Code Art. 199 §1(4)).
Data wydania: 22-01-1997 | Case no.: I CKN 48/96Key issues: state court assistance, arbitrator
1. Recusal of an entire court may not be demanded, but only recusal of specific judges (one or more of them), identified by name, but this does not mean that in this case the arbitration court itself could determine that the motion by the defendant should not be granted. The province court correctly stated that the arbitration court may not decide a motion to recuse an arbitrator, either on the merits or on procedural grounds, even if the motion was clearly unjustified or late.
2. The ruling issued as a result of a petition to set aside an arbitration award is in the nature of cassation, and thus the state court may only set aside the award or deny the petition, and may not rule on the merits. In consequence, when the state court sets aside an arbitration award by granting a petition under Civil Procedure Code Art. 712 §1(2)–(5), the arbitration court retains its jurisdiction to decide the dispute.
Data wydania: 23-05-1996 | Case no.: I ACr 189/96Key issues: arbitrator, jurisdiction of arbitral tribunal, petition to set aside arbitration award
1. No review [by the province court] will lie against an order by the county court appointing an arbitrator pursuant to Civil Procedure Code Art. 492.
2. An interested party will be able to assert its allegations connected with appointment of an arbitrator under Civil Procedure Code Art. 492 in an eventual petition to set aside the arbitration award, which may be filed with the state court in the event of the existence of the defects referred to in Civil Procedure Code Art. 510 §1.
Data wydania: 12-10-1960 | Case no.: 3 CO 21/60Key issues: arbitrator, petition to set aside arbitration award
1. An arbitration clause is an agreement which requires written form in order to be valid. For the clause to be valid, there must be submission of a dispute for determination by an arbitration court, in a written declaration (Civil Procedure Code Art. 486 and 487). It is not possible to conclude an agreement submitting a dispute to determination by an arbitration court in an implicit manner.
2. Appointment of an arbitrator is not ... in and of itself a declaration submitting a dispute for determination by an arbitration court, and is not equivalent to making and signing an arbitration clause.
Data wydania: 27-06-1960 | Case no.: 4 CR 874/59Key issues: arbitrator, arbitration agreement
1. It follows from Civil Procedure Code Art. 488 §2, which provides that each party shall appoint one arbitrator and the arbitrators so appointed “shall appoint a presiding arbitrator,” unless the arbitration clause provides otherwise, and from Art. 492, which provides that in the event of lack of agreement between the arbitrators, the presiding arbitrator shall be appointed by the state court, that the appointment of a presiding arbitrator is mandatory unless the arbitration clause provides otherwise.
2. Because as a result of failure to appoint a presiding arbitrator the arbitration court was not appointed in the prescribed composition, the award issued by an arbitration court composed of two arbitrators was made in an invalid proceeding.
3. Under applicable law, violation of regulations concerning the composition of the arbitration court constitute absolute grounds for setting aside the arbitration award in every instance.
Data wydania: 17-09-1956 | Case no.: 3 CR 505/56Key issues: arbitrator, petition to set aside arbitration award
A clause under which one of the parties is given the right to select all or a majority of the arbitrators conflicts with fair practice, as it provides one party an advantage in appointing the arbitrators and subjects the other party to its discretionary power.
Data wydania: 16-03-1948 | Case no.: I C 1260/47Key issues: arbitrator
1. It cannot be accepted ... that since the arbitration court decided to apply the regulations of the Civil Procedure Code in its proceedings, any failure to apply such regulations calls for setting aside the arbitration award. ... Requirements may not be imposed on the arbitration court that are stricter than those imposed on the state court.
2. Recusal is ruled on by the arbitration court, in which the presiding arbitrator or other arbitrator whose recusal is sought cannot be replaced by another judge, as in the state court; in the case of removal of the presiding arbitrator or one of the other arbitrators, the arbitration court would not be able to function at all.
3. Since the parties agreed to arbitration, and the arbitration agreement is binding on them, one party may not do anything by act or omission to prevent arbitration. Thus if a party refuses to appoint an arbitrator, the other party may apply to the state court to appoint an arbitrator, and if the arbitrators appointed by the parties, who may act in this respect in accordance with the wishes of the parties, do not reach agreement on appointment of a presiding arbitrator, a party may apply to the state court to appoint a presiding arbitrator.
4. The matter is different if the arbitration court cannot be empanelled or the arbitration cannot be held, without fault of the parties, or if the arbitration court cannot be empanelled in the composition or manner to which the parties agreed and expressed their intent in the arbitration clause. If, for example, the clause provides that the presiding arbitrator is to be selected mutually by the parties, but such agreement cannot be reached, the state court may not appoint the presiding arbitrator, as this would violate the clause, which in such case lapses and ceases to be in force. Similarly, if the clause provides that in the event of a lack of agreement by the arbitrators on selection of the presiding arbitrator, the presiding arbitrator is to be appointed not by the state court but by another institution or person, and such person or institution cannot appoint or refuses to appoint the presiding arbitrator, the arbitration court cannot be empanelled, without fault of the parties, and the parties may not be forced to submit the case to an arbitration court empanelled in a manner other than provided for in the clause. The Civil Procedure Code does not contain any provision under which in such case the state court could take the place of the institution or third party indicated in the clause. The clause thus lapses in this case as well. Of course, both parties may mutually amend the clause in the manner provided by law.
Data wydania: 21-05-1946 | Case no.: C III 879/46Key issues: arbitrator, arbitration agreement, arbitration procedure
1. In a proceeding in the common court, governed by the regulations of Part 1, Book 3 of the Civil Procedure Code, if such book does not provide otherwise the provisions of Part 1, Book 2 of the Civil Procedure Code should be applied as relevant.
2. A proceeding commenced upon motion of a party to appoint an arbitrator or a presiding arbitrator is essentially a separate proceeding which is only to prepare the proceeding before the arbitration court. No interlocutory appeal will lie from the appointment of an arbitrator or presiding arbitrator (Civil Procedure Code Art. 485 §2), and thus there may not be a cassation appeal either, as there is no cassation appeal against an order by the court of first instance. However, an interlocutory appeal does lie from the refusal to make an appointment, and a cassation appeal lies from the order of the court of second instance upholding the negative determination of the court of first instance, as from an order ending the proceeding.
3. A proceeding upon a motion by an arbitrator to set his fee is also a separate proceeding, based on the arbitration agreement. Both the arbitrator and the parties litigating before the arbitration court may file interlocutory appeals against the order of the court of first instance and cassation appeals against the order of the court of second instance, as from an order ending the proceeding.
4. A proceeding commenced upon motion of a party seeking a ruling that an arbitration clause has expired is also a separate proceeding before the common court. Here, the state court rules after hearing the dispute between the parties concerning the effectiveness of the agreement. The order resolving this dispute should be considered comparable to a judgment, and thus the parties have a right to file an interlocutory appeal against the order of the court of first instance and a cassation appeal against the order of the court of second instance.
5. Finally, an order on enforceability of an arbitration award or a settlement concluded before the arbitration court also ends a separate proceeding commenced upon motion of a party. ... An interlocutory appeal will thus lie from the order of the court of first instance concerning enforceability, and a cassation appeal will lie from the order of the court of second instance.
6. The court filing fee should be charged on a cassation appeal in the cases referred to above in accordance with general rules.
7. In these instances, the amount in dispute and the amount of the appeal will be the amount in dispute that would be subject to resolution by the arbitration court.
8. In all the foregoing instances, a cassation appeal is obviously permissible only when the amount of the appeal is [at least] PLZ 500 (subject to [Civil Procedure Code] Art. 425 §§ 2 and 3 and Art. XX §1 of the regulations introducing [the Civil Procedure Code]).
Data wydania: 28-05-1938 | Case no.: C III 2479/36 and C III 1301/36Key issues: state court assistance, arbitrator, arbitration agreement, recognition and enforcement of domestic arbitration award
1. A party bound by an arbitration clause which in its opinion is invalid may file a case in the state court, which will take up the issue of the validity of the clause only if the other party, prior to joining issue on the merits, asserts as a defence that the case belongs in arbitration; otherwise, even a valid clause will cease to be in force (Civil Procedure Code Art. 235).
2. An arbitrator may be recused for the same reasons as a state court judge, who is recused if there is a personal relationship between the judge and a party raising justified doubts as to the judge’s impartiality.
Data wydania: 24-05-1938 | Case no.: C II 2690/37Key issues: arbitrator, arbitration agreement
1. Interference in arbitration by the state courts must be limited to instances strictly provided for by statute. Thus, as Civil Procedure Code Art 485 §1 provides for appointment of the presiding arbitrator by the state court upon application of a party only when the arbitrators have failed to agree on the selection, that court may not intervene in a case where the parties have failed to agreement on the selection of the presiding arbitrator who was to be appointed upon their mutual agreement.
2. [Civil Procedure Code] Art. 491 §1(4), which provides that an arbitration clause shall cease to be in force “if the parties cannot agree on an arbitrator whom under the clause they were to appoint jointly,” does not draw any distinction as to whether the parties failed to agree on selection of an arbitrator for a single-member panel or a three-member panel, or whether the person who was to be selected upon mutual agreement was intended to be a presiding arbitrator; thus what is fundamentally important is that the manner in which the parties agreed that the court would be empanelled proved impossible because of lack of agreement on selection of an arbitrator.
Data wydania: 19-11-1937 | Case no.: C I 2960/36Key issues: state court assistance, arbitrator
1. An arbitrator is never recused purely by operation of law, as is the case under Civil Procedure Code Art. 54, but recusal of an arbitrator occurs only via a party, and only Civil Procedure Code Art. 55 may be applicable.
2. Recusal of an arbitrator may not be raised for the first time via a petition under [Civil Procedure Code] Art. 503 §1.
3. Neither the German Civil Procedure Code, under which the arbitration clause was made, nor the Polish Civil Procedure Code defines the relationship under the clause as purely personal and not passing to the general successor by way of universal succession.
Data wydania: 08-02-1937 | Case no.: C III 1254/35Key issues: arbitrator, arbitration agreement
Art. 1376 of the [Russian] Civil Procedure Code provides that changes in the persons serving as arbitrators may occur upon mutual consent of the parties. In instances of resignation, exclusion or failure to perform their duties by the arbitrators, a new arbitrator is appointed by the party who appointed the outgoing arbitrator. A party’s failure to appoint a new arbitrator does not stay consideration of the dispute, and the resolution by the remaining arbitrators will be lawful. It follows from the foregoing that intervention by the court in such a case is excluded.
Data wydania: 15-09-1936 | Case no.: C I 398/36Key issues: arbitrator
1. As the code does not mention intervention by the state court with respect to removal of arbitrators, an interpretation drawn from the justification for the code, for which the applicants argue, would be justified if there were no other provisions indicating that in any instance in which the participation of the state court in an arbitration proceeding is to be permissible, a specific provision of the code is required.
2. As the code does not specifically provide for participation by the state court in the removal of arbitrators, consideration and resolution of this matter lie within the exclusive jurisdiction of the arbitration court.
Data wydania: 08-02-1935 | Case no.: C III 664/34Key issues: arbitrator
1. A party’s lack of confidence in an arbitrator may not constitute grounds for the arbitrator to decline to perform the duties. The arguments in the petition for review seeking to demonstrate that an arbitrator is a decision-maker
and at the same time the trusted confidante of the party that appointed
him are erroneous.
A party does demonstrate its confidence by choosing someone as an arbitrator in its case, but in the sense that the selected arbitrator will resolve the dispute impartially, not looking only to the interests of the party appointing him as an arbitrator. The arbitrator is not a judge only of that
party, but of both parties, and the duty of impartiality arises out of his
character as a judge.
2. Regardless of whether it is a matter of non-justiciability or lack of jurisdiction of the court, the arbitration court may not hold an arbitrator liable for payment of costs, but only one of the parties conducting the dispute, for costs caused by conducting the dispute itself.
Data wydania: 09-01-1935 | Case no.: C II 2194/34Key issues: arbitrator
1. The state court could only either find the arbitration award enforceable in its entirety or refuse to find the award enforceable also in its entirety,
as it is not the place of the state court in considering a case seeking recognition of an arbitration award as enforceable to review which of the reasons behind the award are justified or unjustified, or which item in an accounting was proved or acknowledged by a party, or to enter at all into consideration of the merits of the dispute.
2. The arbitration court may apply § 319 of the [former German] Civil Procedure Code, i.e. correct obvious errors of calculation, typographical errors or the like. It may not, however, amend its material content after service
of the award on the parties, unless both parties consent to such amendment.
3. Resignation of appointment is a declaration by arbitrators that they refuse to perform their duties, that they renounce the agreement with the parties obliging them to resolve the dispute.
4. In light of the declaration by the arbitrators in the presence of the parties that they resign their appointments, and thus renounce the agreement to perform the duty of arbitrators, pursuant to § 1033 of the [former German] Civil Procedure Code the arbitration agreement ceased to be in force, and expired.
5. In light of expiration of the arbitration agreement, the arbitrators who resigned their appointments had no legal basis to take up their rights and obligations again upon the unilateral request of the plaintiff without the consent of the defendant, as they did.
Data wydania: 16-02-1934 | Case no.: C III 143/33Key issues: arbitrator, arbitration agreement, arbitration procedure, recognition and enforcement of domestic arbitration award
The legal relationship that arose between the parties as a result of the plaintiff’s appointment by the defendant as an arbitrator cannot be regarded as a service contract under Civil Law §§ 1151 and 1153 ... or as a contract to perform a specific work (Civil Law §§ 1165 et seq.) ... It is a distinct type of contract which, according to Civil Law § 1391, is governed more specifically by the Civil Procedure Code.
Data wydania: 29-09-1933 | Case no.: C II Rw 1650/33Key issues: arbitrator
Lack of a signature on the award by an arbitrator who has been outvoted cannot be grounds for invalidating the arbitration award.
Data wydania: 31-08-1933 | Case no.: C I 2776/32Key issues: arbitrator, arbitration award
In light of the legal finality of the resolution ... appointing an arbitrator ..., there is no legal basis for holding the arbitration clause to be ineffective, because the basis that arose through [the arbitrator’s] resignation was cured as a result of appointment of another arbitrator by the state court. The arbitration clause may be deemed ineffective pursuant to [former Austrian] Civil Procedure Code § 583(2)(2) only if an arbitrator refused to perform his duties or is in excessive delay in performing his duties.
Data wydania: 18-08-1932 | Case no.: R 385/32Key issues: state court assistance, arbitrator, arbitration agreement
The resolution [appointing an arbitrator] could not be appealed pursuant to [former Austrian Civil Code § 582(2)] by the petitioner’s opponent, and he did not appeal against it.
He had even less right to appeal against the order of the first court failing to grant the request by [the arbitrator] to release him from the appointment as arbitrator, as [the arbitrator] accepted this order by the court.
Data wydania: 23-03-1932 | Case no.: III R 106/32Key issues: arbitrator
1. An arbitrator may not be ordered to sign the arbitration award by resort to the courts. Such a procedure is not provided for by the civil procedure code, which in a separate chapter governs the entire proceeding before the arbitration court. It only imposes an obligation on an arbitrator who fails to perform the duties connected with accepting the role of an arbitrator to redress the loss caused by such failure.
2. Signing of the arbitration award that has been handed down is the same obligation as the obligation to issue an award, as the signature is an essential requirement for the effectiveness of the arbitration award.
Data wydania: 19-12-1931 | Case no.: III 1 Rw 1925/30Key issues: arbitrator, arbitration award
The demand for a holding that the arbitration clause is deprived of legal force is properly grounded on §583(2)(2) of the [former Austrian] Civil Procedure Code, pursuant to which an arbitration clause loses its binding force not only when an arbitrator expressly referred to in the clause refuses to perform the obligation imposed on him as a result of accepting the duties of an arbitrator, but also when this is done by an arbitrator appointed by a party pursuant to the arbitration clause. In both of these instances, both parties have a right to demand a ruling that the arbitration clause is deprived of legal force.
Data wydania: 08-08-1931 | Case no.: R 395/31Key issues: arbitrator, arbitration agreement
The amended Art. 1367, 1370 and 13701 of the [former Russian] Civil Procedure Code, insofar as they contain substantive legal norms, that is with respect to a compulsory submission to arbitration and appointment of arbitrators without the consent of both parties, may not be applied with respect to general arbitration clauses concluded before entry into force of the act of 16 July 1925 [amending the former Russian Civil Procedure Code].
Data wydania: 13-02-1931 | Case no.: C 1783/30Key issues: arbitrator, arbitration agreement
Decisions issued by the court of first instance on appointment of arbitrators and specification of the terms of the submission, whether granting the application or denying it, are not subject to interlocutory appeal.
Data wydania: 18-10-1929 | Case no.: C 1162/28Key issues: state court assistance, arbitrator
This provision [former Civil Procedure Law Art. 13701] that consideration of claims referred to in Civil Procedure Law Art. 1370 shall lie with the court which would have jurisdiction in the event of a judicial dispute should be understood as reiterating the general rule with respect to jurisdiction of the court depending on the amount sought by the plaintiff.
Data wydania: 06-07-1926 | Case no.: IC N 89/26Key issues: state court assistance, arbitrator
The defendant’s objection to appointment of a super-arbitrator is not justified by Civil Procedure Law Art. 13701, which clearly vests this right with the court, and the arbitrators’ mutual selection of the super-arbitrator is not provided for in the statute.
Data wydania: 17-02-1926 | Case no.: I C N 2991/25Key issues: arbitrator, arbitration agreement
An arbitration agreement is governed by provisions of public law, not private law. Under the regulations concerning the judicial system, a person who is formally subject to guardianship due to mental illness may not become a judge; therefore, applying this rule by analogy, a person is not capable of serving as an arbitrator who at the time of appointment as an arbitrator was formally subject to guardianship due to mental illness, notwithstanding the claim that such person was already in fact mentally fit at that time or upon issuance of the award.
Data wydania: 08-11-1922 | Case no.: R 832/22Key issues: arbitrator