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Polish Supreme Court order dated 27 October 2016 Case no. V CSK 66/16

The assertion of the impermissibility of the cassation appeal because it does not meet the requirement set forth in Art. 3982 §1 of the Civil Procedure Code concerning the amount in dispute in the cassation appeal is groundless. The requirement set forth in that provision does not apply to a cassation appeal in a proceeding for recognition and enforcement of an arbitration award or a settlement concluded before an arbitral tribunal (Civil Procedure Code Art. 1215 §3), because the permissibility of a cassation appeal is governed in each proceeding in a specific manner, which means that the reference provided in Civil Procedure Code Art. 13 §2 does not apply to the issue of the permissibility of this instrument of review in proceedings other than a civil trial.

Data wydania: 27-10-2016 | Case no.: V CSK 66/16

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

id: 20438

Polish Supreme Court resolution of 28 September 2016 Case No. III CZP 40/16

1. Enforcement of an arbitration award issued in the Republic of Poland or a settlement concluded before such arbitral tribunal is ruled on by the court of appeal in closed session in a panel of a single judge.

2. A proceeding for recognition or enforcement of an arbitration award issued in Poland or a settlement concluded before an arbitral tribunal in Poland is an auxiliary proceeding, while a proceeding for recognition or enforcement of an arbitration award issued abroad or a settlement concluded before such a foreign arbitral tribunal is analogous to a proceeding on the merits of the case.

3. Art. 12131 §2 of the Civil Procedure Code justifies application as relevant of Art. 390 §1 of the Civil Procedure Code.

4. Recognition and enforcement are treated in the law uniformly, with respect to an arbitration award issued in Poland or a settlement concluded before an arbitral tribunal in Poland, on the one hand, and an arbitration award issued abroad or a settlement concluded before a foreign arbitral tribunal, on the other hand.

5. In proceeding for recognition or enforcement of an arbitration award issued in Poland or a settlement concluded before an arbitral tribunal in Poland, review of the order is provided for through an interlocutory appeal to another panel of the court of appeal (Civil Procedure Code Art. 1214 §4). Such review is conducted in a panel of three judges (Civil Procedure Code Art. 367 §3, first sentence, in connection with Art. 397 §2, first sentence, Art. 3942 §2 and Art. 1214 §4).

Data wydania: 28-09-2016 | Case no.: III CZP 40/16

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

id: 20431

Polish Supreme Court order dated 25 May 2016 Case V CSK 257/15

The term “agreement in writing” referred to in Art. II (1) and (2) of the [New York] Convention also includes an agreement which provides for transfer of the rights covered by the agreement. Submission by a party seeking enforcement of a foreign arbitration award of a written agreement containing an assignment of a claim covered by an arbitration clause thus constitutes a formal requirement for the application identical to the requirement set forth in Art. IV(1)(b) of the convention.

Data wydania: 25-05-2016 | Case no.: V CSK 257/15

Key issues: recognition and enforcement of foreign arbitration award

id: 20423

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

Warsaw Court of Appeal order dated 31 March 2015 Case No. I ACz 358/15

1. Rulings of arbitration courts, like rulings of foreign courts, may have content departing from the requirements imposed on such domestic rulings by Polish law.

2. The absence of an express regulation with respect to adjustment of arbitration rulings does not exclude such adjustment if as a result of an indubitable interpretation of the arbitration ruling it is possible to conduct an interpretation of the foreign writ so that it would exert the same effects as a domestic ruling by indentifying the relief and its scope.

2. As Art. 783 §1 of the Civil Procedure Code provides for the possibility of including in the enforcement clause, when needed, information concerning identification of the relief subject to execution and the scope of execution, this means that the possibility of the court making an interpretation of a writ of execution in the form of a ruling of an arbitration court is not excluded if it involves only identification of the relief and its scope.

3. Only in a situation where making an objective interpretation is not possible should the application be denied, because issuance of an enforcement order which the execution authorities cannot execute would conflict with public order. Interpretation does not consist of issuing the court’s own ruling, replacing or amending the ruling of the arbitration court, but should only display or make more understandable the intention of the arbitration court already expressed in the ruling—even if it is set forth imperfectly and inadequately defined for purposes of its enforcement—and in this respect help give effect to that intention.

4. It is incorrect to refuse to issue an enforcement clause solely because the award somewhat less precisely describes the scope of the parties’ settlements with respect to the costs of the proceeding.

Data wydania: 31-03-2015 | Case no.: I ACz 358/15

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

id: 20428

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

Polish Supreme Court order dated 14 January 2015 Case No. I CZ 97/14

1. In a situation where the proceeding before an arbitration court was located abroad and the arbitration award was issued abroad or a settlement was concluded before the arbitration court abroad, it may be said that the proceeding for recognition or enforcement allows legal consequences to be obtained equivalent to those that exist if the proceeding before the arbitration court is located in Poland and an award is issued here or a settlement is concluded here. This proceeding is therefore not limited to the functions fulfilled by a proceeding for recognition or enforcement of an arbitration award issued in Poland or a settlement concluded before an arbitration court in Poland. In effect, a proceeding for recognition or enforcement of an arbitration award issued abroad or a settlement concluded before an arbitration court abroad cannot be reduced to the role of a proceeding of an auxiliary nature, 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 the “counterpart” of the proceeding in the case.

2. When amending Civil Procedure Code Art. 1215 via the Act of 22 July 2010 Amending the Civil Code, the Civil Procedure Code and the Bankruptcy and Recovery Law (Journal of Laws Dz.U. 2010 No. 155 item 1037), the Parliament decided the issue of the scope of permissibility of a cassation appeal by permitting it only against an order of the court of second instance on recognition or enforcement of an arbitration award issued abroad or a settlement concluded before an arbitration court abroad. This allows the conclusion a contrario that a cassation appeal is not permitted against an order of the court of second instance on recognition or enforcement of an arbitration award issued in Poland or a settlement concluded before an arbitration court in Poland.

Data wydania: 14-01-2015 | Case no.: I CZ 97/14

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

id: 20386

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 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.

Data wydania: 20-05-2011 | 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: 20355

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

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.

Data wydania: 24-09-2009 | Case no.: I ACa 995/08

Key issues: arbitrability of dispute, arbitration agreement, jurisdiction of arbitral tribunal, recognition and enforcement of foreign arbitration award

id: 20294

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.

Data wydania: 24-06-2009 | Case no.: I CSK 538/08

Key issues: recognition and enforcement of foreign arbitration award

id: 20266

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.

Data wydania: 04-07-2008 | Case no.: I CZ 139/07

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

id: 20250

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).

Data wydania: 17-01-2008 | Case no.: III CZP 112/07

Key issues: recognition and enforcement of foreign arbitration award

id: 20247

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.

Data wydania: 17-07-2007 | Case no.: III CZP 55/07

Key issues: recognition and enforcement of foreign arbitration award

id: 20239

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 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.

Data wydania: 09-03-2004 | Case no.: I CK 412/03

Key issues: recognition and enforcement of foreign arbitration award

id: 20203

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.

Data wydania: 20-02-2003 | Case no.: I CZ 10/03

Key issues: recognition and enforcement of foreign arbitration award

id: 20194

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.

Data wydania: 09-02-1999 | Case no.: I CKN 887/98

Key issues: recognition and enforcement of foreign arbitration award

id: 20159

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.

Data wydania: 06-10-1998 | Case no.: I ACz 841/98

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

id: 20279

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.

Data wydania: 24-09-1998 | Case no.: III CKN 628/98

Key issues: recognition and enforcement of foreign arbitration award

id: 20156

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.

Data wydania: 25-07-1989 | Case no.: C-190/89

Key issues: recognition and enforcement of foreign arbitration award

id: 20318

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