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Polish Supreme Court judgment dated 4 December 2015 Case No. I CSK 26/15

The concept of “public policy” is included in numerous provisions of Polish public law. This concept under the New York Convention corresponds to the concept of “fundamental principles of the legal order” included in a dozen or more provisions of Polish law. Fundamental principles of the legal order constituting grounds for evaluating an arbitration award should be understood to mean not only constitutional norms, but also the principal norms in specific fields of law.

Data wydania: 04-12-2015 | Case no.: I CSK 26/15

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

id: 20408

Judgment of the Court of Justice of 13 May 2015, Gazprom

Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as not precluding a court of a Member State from recognising and enforcing, or from refusing to recognise and enforce, an arbitral award prohibiting a party from bringing certain claims before a court of that Member State, since that regulation does not govern the recognition and enforcement, in a Member State, of an arbitral award issued by an arbitral tribunal in another Member State.

Data wydania: 13-05-2015 | Case no.: C-536/13

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

id: 20392

Supreme Court of Poland order dated 23 January 2015 Case No. V CSK 672/13

1. Interpretations of Art. IV of the New York Convention must reflect its functional connection with Art. II of the convention, which specifies the requirements for an agreement including an arbitration clause. Art. II(2) of the New York Convention provides that an “agreement in writing” for purposes of Art. I(1) [sic—Art. II(1)] shall include an arbitral clause in a contract or an arbitration agreement for example in the form of an exchange of letters or telegrams. It is beyond dispute that Art. II(2) of the New York Convention contains an autonomous regulation of arbitration agreements. It is commonly accepted in the case law and commentaries that the wording of Art. II(2) of the New York Convention calls for a liberal understanding of the concept of an “agreement in writing” as the requirement for effectiveness of an arbitration clause, and requires an acceptance that the parties have freedom with respect to selection of the form of the agreement in which they submit to the jurisdiction of the arbitration court. It is thus possible to conclude such agreement also using means of reaching agreement at a distance, e.g. by an exchange of faxes or statements by email. Following this line, the view that is aptly presented in the commentaries is that the applicant fulfils the requirement of submission of the agreement in the original if it files a document which constitutes evidence of conclusion of the specific agreement, regardless of its form. Thus it is obvious that to evaluate whether the applicant has filed the required document concerning the agreement containing the arbitration clause, it was necessary to determine whether the form of the document is consistent with the manner in which the agreement was concluded. Written form of the agreement is not excluded, for example, if the respondent in the proceeding sent a fax of the text of the agreement signed by it, and the applicant placed its signature on that.

2. A condition of recognition or enforcement of an arbitration award should be the existence of the arbitration agreement, and not submission of a document confirming its conclusion. For this reason the position is also presented that the applicant’s failure to submit the agreement referred to in Art. IV of the New York Convention does not prevent granting the application if the existence of the clause for arbitration before a foreign arbitration court is undisputed.

Data wydania: 23-01-2015 | Case no.: V CSK 672/13

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

id: 20393

Gdańsk Appellate Court order dated 11 February 2014 Case No. I ACz 1475/13

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 1475/13

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

id: 20190

Polish Supreme Court order dated 23 January 2013 Case No. I CSK 186/12

1. Pursuant to Civil Procedure Code Art. 1215 §1, the court shall rule on recognition or enforcement of an arbitration award issued abroad or a settlement concluded before an arbitration court abroad after conducting a hearing. This provision confirms the rule provided for adversarial proceedings in Civil Procedure Code Art. 148 §1 that cases are considered at a hearing. A departure from this rule should be interpreted narrowly. Therefore, if a provision specifies the type of cases that are considered at a hearing, this method of consideration applies regardless of whether the court upholds the claim (or application) or denies it.

2. The [New York] Convention sets forth the material conditions for recognition (primarily in Art. IV and V), and therefore a proceeding for recognition of a foreign arbitration award should be conducted primarily in accordance with the provisions set forth in the Convention, and on the basis of the Civil Procedure Code in other respects not governed there.

3. The requirements with respect to the form of conclusion of an arbitration agreement should be assessed according to the [New York] Convention, and not according to Civil Procedure Code Art. 1162.

4. A liberal interpretation of [New York Convention Art. II(2)] is accepted in practice, recognizing that the enumeration therein of methods of concluding an agreement is not exhaustive, but also includes other techniques used for reaching agreement at a distance.

5. It should be accepted that the law of the state in which an arbitration award was issued should decide on the issue of certification of the contents of the award.

6. The view that failure to enclose the documents specified in Civil Procedure Code Art. 1213 with an application for recognition does not constitute a formal defect that is subject to supplementation pursuant to Civil Procedure Code Art. 130 §1 in connection with Art. 13 §2 is incorrect.

7. The respondent was not named in the arbitration award, but only the business name under which he trades was stated. The correctness and effectiveness of such identification should be decided by the law of the state of origin of the award.

Data wydania: 23-01-2013 | Case no.: I CSK 186/12

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

id: 20269

Katowice Court of Appeal order dated 12 December 2012 Case No. V ACz 914/12

1. The ineffectiveness of an arbitration clause results from events arising after the clause is made which nonetheless do not affect its validity. It must be stressed in this respect that the arbitration clause itself is treated as an act of a dual nature, that is, of both substantive and procedural law. This leads to the conclusion that when making an arbitration clause, the parties can condition its effectiveness, as with any other contract, on the passage of a certain time or fulfilment of a certain suspensory condition. The Convention on the Recognition and Enforcement of [Foreign] Arbitral Awards, in particular Art. II, does not provide for limitations in this respect. On the contrary, Art. II(2) indicates a broad interpretation of the concept of “agreement in writing under which the parties undertake to submit to arbitration all or any differences”, which justifies the conclusion that this wording is not infringed by introduction into the agreement of regulations prior to the arbitration proceeding.

2. The essence of the New York Convention is the requirement for the parties to proceed in accordance with good faith and fair practice, and thus a prohibition against acting contrary to these principles. This interpretation stands in the way of actions disloyal to the other participants and the arbitration court, and deprives of justification objections by a party to the proceeding of the non-existence or invalidity of the arbitration clause in a proceeding for recognition or enforcement of an arbitration award in Poland, even though preclusion of such an objection is not expressly provided for in the regulations of the convention, if the party joined issue on the merits of the dispute before the arbitration court without asserting the court’s lack of jurisdiction.

Data wydania: 12-12-2012 | Case no.: V ACz 914/12

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

id: 20414

Polish Supreme Court order dated 13 September 2012 Case No. V CSK 323/11

1. A proceeding for recognition and enforcement of foreign rulings is a proceeding on the merits of the case, which is based on substantive law…. The court of appeal could therefore apply the law of the [New York] Convention as the applicable substantive law.

2. Art. II(2) [of the New York Convention] is more liberal, also permitting conclusion of an arbitration clause by electronic means, even without the signatures of the parties. This is also a fundamental provision, determining the permissible form of the agreement, while the requirements connected with submission of the arbitration agreement included in Art. IV( 1) should be considered in light of the form in which the agreement could be concluded. Consequently, Art. IV is derivative in nature and thus cannot undermine the rationale of the rule set forth in Art. II of the convention.

3. A party which joined issue on the merits of the dispute before the arbitration court without alleging the lack of jurisdiction of such court (e.g. because of the ineffectiveness of the clause) loses such allegation in the proceeding for recognition or enforcement of the arbitration award before the national court. … The essence of the New York Convention is a requirement for the parties to act in accordance with principles of good faith and fair dealing, and hence a prohibition against acting in violation of such principles. Such interpretation frustrates actions disloyal to the other parties and the arbitration court, causing unnecessary costs and a waste of time. There is no concern in this respect that the party’s procedural rights will be limited, because the party decides on the arbitration clause autonomously.

Data wydania: 13-09-2012 | Case no.: V CSK 323/11

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

id: 20270

Warsaw Appellate Court order dated 18 October 2011 Case No. I ACz 1627/11

1. Although the court ruling on an application for enforcement of an arbitration award is not bound in any respect by the ruling of the Vienna Commercial Court in the action to set aside the arbitration award, it must not be ignored that the New York Convention provides grounds for the domestic court deciding on enforcement of a foreign arbitration award to consider, upon application of a party, a ruling setting aside the arbitration award as grounds to refuse enforcement of the award.

2. If a proceeding to set aside or stay enforcement of an arbitration award is only pending, that does not justify refusal to issue or confirm the enforceability of the award, but may justify postponing a decision on the matter.

Data wydania: 18-10-2011 | Case no.: I ACz 1627/11

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

id: 20367

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.

Data wydania: 06-11-2009 | Case no.: I CSK 159/09

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

id: 20298

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.

Data wydania: 22-02-2007 | Case no.: IV CSK 200/06

Key issues: New York Convention, arbitration agreement

id: 20235

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.

Data wydania: 18-01-2007 | Case no.: I CSK 330/06

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

id: 20234

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.

Data wydania: 03-11-2004 | Case no.: III CK 510/03

Key issues: New York Convention, arbitration agreement

id: 20209

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.

Data wydania: 29-08-2000 | Case no.: I CKN 240/00

Key issues: New York Convention, arbitration agreement

id: 20179

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.

Data wydania: 16-02-1999 | Case no.: I CKN 1020/98

Key issues: New York Convention, arbitration agreement, jurisdiction of arbitral tribunal

id: 20160

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