Szpara Justyna, Łaszczuk Maciej
Palestra 2008, Nr 9-10, s. 27-35
Comments on the Scope of Assistance Given by a State Court to
an Arbitration Court under Art. 1192 of the Polish Civil Procedure Code
By concluding an arbitration agreement (or an arbitration clause), the parties express the intention that an existing or future dispute between them be resolved by arbitrators, without the intervention of a state court. The principle of the autonomous will of the parties is subject to certain limitations, however, imposed by the legislature, which has provided for the state court to take certain actions in relation to a proceeding pending before an arbitration court. Viewing the relationship between the arbitration court and the state court in terms of the function fulfilled by the state court allows for a division of the actions by the state court into those involving oversight and those involving assistance to the arbitration court.1 Assigning certain actions by the state court provided for in the Civil Procedure Code (“CPC”) regulations concerning arbitration courts to one or the other of these groups may be doubtful,2 but not in the case of actions taken by the court3 under CPC Art. 1192 §1, which are acts of assistance provided upon motion by the arbitration court.
Under CPC Art. 1192 §1, “An arbitration court may apply to have evidence taken, or to perform another action which the arbitration court cannot perform, to the district court in whose district the evidence is to be taken or other action performed. The parties and the arbitrators may take part in the evidentiary proceeding before the district court, with the right to ask questions.”
This not an exhaustive consideration of the topic set forth in the title, but only a contribution to the discussion concerning interpretation of CPC Art. 1192. We attempt to answer the question of whether the scope of assistance that may be given by the court to an arbitration court under CPC Art. 1192 §1 permits the court, upon motion of the arbitration court, to apply compulsory measures against witnesses and other persons in order to enable the arbitration court to take evidence, and whether it enables the court to administer oaths.
The wording of the first sentence of CPC Art. 1192 §1, after the changes introduced by the Act of 28 July 2005 Amending the Civil Procedure Code,4 differs from the analogous provisions of former CPC Art. 706 §2 and of Art. 495 §2 of the 1932 Civil Procedure Code5 in that the new provision expressly mentions “taking evidence” as an action which the arbitration court may request of the court, alongside other actions which the arbitration court may not perform. The previous regulations, despite minor linguistic differences, had the same normative substance and authorized the arbitration court to apply to the court to perform an action that the arbitration court itself could not perform.6 Even though the regulations previously in force did not refer directly to taking evidence, it was recognized in the literature that such action, if the arbitration court could not perform it, was included in the scope of assistance given by the court.7 There was no uniform position, however, concerning the scope of actions which the court could perform to assist the arbitration court. Nor were there any exhaustive commentaries addressing this issue. Nonetheless, in the literature commenting on the regulation set forth in CPC (1932) Art. 495 §2, it was indicated that under that provision, the court could perform actions involving, more specifically, administering oaths and applying compulsory measures. CPC (1932) Art. 495 §1 was cited as justification for this view, under which section the law provided that the arbitration court could administer an oath (or pledge)8 to parties, witnesses or experts, or apply compulsory measures. It was indicated that the legislature was referring specifically to these actions in §2 of that article as “actions which the arbitration court has no authority to perform.” Thus it was recognized that the arbitration court could apply to a state court to administer an oath to a witness who would thereafter testify before the arbitration court, to bring a witness by force to the arbitration court in order to testify, or to fine a third party for unjustified refusal to present a document, and so on.9 Only K. Potrzobowski and W. Żywicki10 found that it was impermissible for an arbitration court to apply to a state court to administer an oath or apply compulsory measures in order to obtain the testimony of a party, witness or expert, and then to take such evidence itself. In the view of those authors, if there were a need to administer an oath or apply compulsory measures, the evidence would be taken by the state court.
Entry into force on 1 January 1965 of the Civil Procedure Code of 17 November 1964 represented a change in the law in only one respect: under CPC Art. 706 §1, the arbitration court was vested with a right to administer oaths.11 The wording of §2 of this article, concerning assistance from a state court to an arbitration court, despite minor editing revisions, remained identical to the rule set forth in CPC (1932) Art. 495 §2. Under the new law, it was accepted that the scope of actions which the arbitration court could not perform, and which it could request the court to perform, included, along with other actions, both taking evidence and applying compulsory measures in order to enable the arbitration court to take evidence.12 In light of the wording of CPC Art. 706 §1, the issue of administration of oaths by the state court was not addressed.
The change in law as of 17 October 2005,13 as pertinent here, was that the legislature omitted from CPC Art. 1192 §1 the wording referring to administration of oaths, which had been contained in former CPC Art. 706 §1. Under the new law, there can be no doubt that the arbitration court is not authorized to administer oaths to the parties, witnesses or experts, or to caution witnesses of criminal liability for giving false testimony, and there is no basis for finding that giving false testimony in a proceeding before an arbitration court constitutes perjury under Penal Code Art. 233.14
Comments in the doctrine concerning the ability of the court to provide assistance by applying compulsory measures against witnesses, parties, experts or third parties in connection with the arbitration court’s taking evidence have essentially not changed from the comments made under prior law.15 It should be noted, however, that in the latest publications, some authors16 no longer take a view clearly recognizing that the court may apply compulsory measures in connection with taking of evidence by the arbitration court.
Surprisingly, interpretation of CPC Art. 1192 §1 presents significant difficulties. First and foremost, there are doubts concerning the meaning of the phrase “action which the arbitration court cannot perform.” It is unclear whether this condition refers only to “other actions” (that is, other than taking evidence), or also to taking evidence. A linguistic interpretation of this provision does not provide an unequivocal answer to this question. In our view, however, a functional interpretation leads to the conclusion that this condition refers both to the act of taking evidence and to other actions – generally, all actions in the proceeding, also including evidentiary actions, should be performed by the arbitration court. Interpreting this provision otherwise would violate the purpose of the arbitration clause, under which the parties have specifically excluded the authority of the state court in favor of the arbitration court. The condition that an evidentiary action or other action cannot be taken by the arbitration court should be understood to mean that the inability to perform the action also includes the notion of a serious impediment, for example where a witness resides in a distant location, even though in such case the arbitration court could take such evidence itself.
Pursuant to the motion by the arbitration court, the court may perform only such actions as would lie within the scope of actions performed by the courts in a proceeding on the merits of a civil dispute [postępowanie rozpoznawcze]. In performing these actions, the court acts in accordance with CPC provisions.17 This framework for actions by the state court is also laid down in the second sentence of Art. 27 of the UNCITRAL Model Law on International Commercial Arbitration (1985).18 While this restriction was not actually repeated in the Polish regulation, the reason for this may have been a view on the part of lawmakers that it was unnecessary to include a restriction of this type, since a Polish common court may act only on the basis of procedural regulations in force in Poland. The bounds of the actions that may be performed by the court by way of assistance to an arbitration court are thus laid down primarily by CPC provisions concerning actions that may be performed by the court.
But may any action which a court is authorized to perform under the CPC in a proceeding on the merits also be performed by way of assistance to an arbitration court? More specifically, the question arises concerning the permissible scope of the court’s use of compulsion within a proceeding before an arbitration court and the administration of oaths – because in a proceeding on the merits the court is generally authorized to use compulsion and also to administer oaths.
As indicated above, actions involving use of compulsion have most often been given in the literature as examples of actions which the arbitration court cannot perform, and thus which it could apply to the court to perform. This view is based on the wording of CPC Art. 1191 §1, which provides that an arbitration court may not apply compulsory measures. Given that under this provision the arbitration court cannot perform actions involving use of compulsory measures, therefore, in the view of some commentators, the arbitration court may apply to the court to perform precisely these actions (i.e. imposing a fine on a witness or expert for unjustified failure to appear or refusal to testify, ordering that a witness be brought to appear by force in the event of unjustified failure to appear, ordering the arrest of a witness in the event of unjustified refusal to testify, or imposing a fine on a third party for unjustified refusal to present a document or an item for inspection), and the court is authorized to apply measures of this type. Is that really the case? A response to this question requires separate consideration of the authority of a state court to perform specific types of actions referred to above by way of assistance.
There is no doubt that neither a witness nor an expert19 has a duty to appear before an arbitration court or to submit to questioning. Consequently, there is no provision in the regulations concerning arbitration which would give a right to refuse to testify or to refuse to answer specific questions under specific circumstances. Thus the arbitration court may question a witness only if the witness appears before the arbitration court and is willing to testify. This follows from the nature of arbitration as a private dispute resolution method founded on a contract between the parties. The lack of a duty to appear and give testimony excludes the possibility of imposing a fine on a witness for unjustified failure to appear or unjustified refusal to testify, as well as applying measures involving bringing the witness to appear by force or ordering that the witness be arrested. Firstly, since there is no duty to take a given action, there is also no basis to impose a sanction for failure to take such action – regardless of whether the sanction would be imposed by an arbitration court or a state court. Secondly, there are no regulations which would provide a basis for imposing such sanctions in the event of failure to appear or refusal to testify before an arbitration court. CPC Art. 274 §1 and Art. 276 §§1 and 2, respectively, do not provide such basis. CPC Art. 274 §1 authorizes imposition of a fine or ordering that a witness be brought to appear by force only in the event of unjustified failure to appear before a state court. Furthermore, in the event of failure to appear before an arbitration court, a witness has no duty to present any justification. Similarly, CPC Art. 276 §§1 and 2 are applicable only in the event of refusal to testify before a state court. Given that the witness has no duty to testify at all, there is no way in any event to regard a refusal to testify as unjustified.
The issue is analogous with respect to compulsion in the form of imposing a fine on a third party who refuses to present a document or an item for inspection. The ability to apply this sanction is tied to the duty to present the document upon order of the court under CPC Art. 248 §1, or the duty to present an item for inspection under CPC Art. 293. Such duty exists only if an order is issued by the state court requiring presentation of the document or item for inspection. There is no such duty if an arbitration court issues such an order. As a result, for the same reasons as presented with respect to imposition of a fine for unjustified failure to appear or unjustified refusal to testify, it would be impermissible to impose a sanction on a third party for refusal to present a document or an item for inspection to an arbitration court.
It is also impermissible, although for somewhat different reasons, for the court to administer an oath to a witness, expert or party in connection with questioning of such persons by an arbitration court. For purposes of the CPC, the oath is strictly tied to criminal liability for perjury. However, giving testimony as evidence in an arbitration court proceeding can never serve as a basis for criminal liability for perjury under Penal Code Art. 233, because an arbitration court proceeding is not a judicial proceeding or other proceeding conducting pursuant to statute, for purposes of Penal Code Art. 233.20 Thus not only the arbitration court, but the court as well, may not administer an oath to a witness, expert or party. This view also applies in a case where the testimony of the witness or party or the expert’s opinion is to be taken not by the arbitration court, but by the court upon motion of the arbitration court. The court then applies the CPC provisions governing evidentiary proceedings, but it may not administer either a caution concerning criminal liability or an oath, because in such case criminal liability for perjury does not attach. This is because Penal Code Art. 233 does not tie liability for perjury to the body before which testimony is given, but to the type of proceeding in which the testimony is to serve as evidence. Regardless of whether the testimony is given before the arbitration court or before the court by way of assistance to the arbitration court, the testimony serves as evidence in the arbitration court proceeding. Thus the fact that the testimony is given before the court does not change the analysis with respect to criminal liability for perjury.
Thus if a witness refuses to appear or testify, and the arbitration court regards the witness’s testimony as essential evidence, then the only option is to apply to the court to take the witness’s testimony. An additional argument supporting this view is provided by the wording of the second sentence of CPC Art. 1192 §1, under which the parties and arbitrators may take part in the evidentiary proceeding before the district court, with the right to ask questions. That being the case, it follows that the court’s assistance in taking evidence may only involve the district court’s conducting an evidentiary proceeding within a given scope, and not the court’s performance of actions intended to enable the arbitration court to take evidence.21 In taking such evidence, the court applies the CPC provisions concerning evidence in the form of testimony by witnesses. If the court conducts a legal assistance proceeding upon motion of the arbitration court, the witness will be required to appear and to give testimony (although in this instance provisions giving a certain category of witnesses the right to refuse to testify or to refuse to answer questions will also apply). This follows from the fact that in taking the evidence, the court would now be applying the CPC provisions concerning the given type of evidence, including also provisions concerning the duty to appear and testify (which are intended to uphold the authority of the court as an instrument of the justice system). Consequently, if the court takes evidence, it may, in the event of unjustified failure to appear or unjustified refusal to give testimony, punish the witness with a fine, order that the witness be brought in by force (in the event of unjustified failure to appear), or order that the witness be arrested (in the event of unjustified refusal to testify). As referred to above, however, the court may not caution the witness about criminal liability or administer an oath to the witness.
Similarly, if a third party in possession of a document that should be evidence in an arbitration court proceeding refuses to submit the document, then the arbitration court may, under CPC Art. 1192 §1, apply to the court to receive the document in evidence. Under the assistance proceeding opened pursuant to the arbitration court’s motion, CPC Art. 248 §1 will also apply, giving the court the authority to order a third party in possession of a document constituting evidence of a fact material to the resolution of the case to present the document, and creating a duty on the part of such third party to comply with the order of the court. In such case, obviously, Art. 248 §2 will also apply, specifying instances in which the person may decline to perform such duty. The question should be posed at this juncture whether the court may, under CPC Art. 248 §1, order that a document be presented to the arbitration court. An affirmative response could be justified by the literal wording of this provision, under which the person in possession of the document has a duty to present it “at a designated time and place.” In our view, however, such conclusion would be unjustified, because the duty to present the document upon order of the court is clearly tied to the authority of the court as an instrument of the justice system. The court serves as a guarantor that the document will not be used in a manner inconsistent with the intention of the holder, or damaged, and that after it is used in the proceeding, it will be returned upon request of the person who presented it. Therefore, as well, in our view CPC Art. 248 §1 only permits an order that the document be presented in court or at a place under the control of the court. Moreover, CPC Art. 248 §1 constitutes only a means to allow the court to receive the document in evidence, and not an independent procedural institution. Thus, also, while it is permissible for the court to issue such an order in order to carry out the request by the arbitration court to receive a document in evidence, it is not permissible for the court to grant a motion by the arbitration court ordering that the document be presented before the arbitration court itself. The court to which the document is presented pursuant to an order under CPC Art. 248 §1 should receive the document in evidence, that is, examine the document and allow the arbitrators and parties to the arbitration proceeding to examine the document – the basis for which is provided by the second sentence of CPC Art. 1192 §1. If a person ordered by the court to present a document to the court under CPC Art. 248 §1 unjustifiably refuses to present the document, then the court is authorized to impose a fine pursuant to CPC Art. 251. These comments also apply respectively to an order by the court to present an item for inspection under CPC Art. 293.
This analysis leads to the conclusion that if a given action may not be performed by an arbitration court, and such action generally lies within the scope of actions performed by a court in a proceeding on the merits, this is insufficient to find that such action may be performed by a state court under CPC Art. 1192 §1. In each instance the authority of the court to perform an action under CPC Art. 1192 §1 should undergo a thorough review, also taking into account the function of the given legal measure to be applied.
1 See T. Ereciński & K. Weitz, Sąd arbitrażowy (The Arbitration Court), Warsaw 2008, p. 58.
2 See T. Ereciński & K. Weitz, op. cit., p. 59.
3 Hereinafter we use the simple term “court” to refer to the state court.
4 The Act was published at Journal of Laws No. 178 item 1478 and came into force on 17 October 2005.
5 Following changes in the numbering of the articles as a result of publication of a unified text of the Civil Procedure Code by the Justice Minister on 25 August 1950 (Journal of Laws No. 43 item 394), what had been Art. 495 became Art. 502. The unified text of the CPC using the new numbering was in force from 2 October 1950.
6 CPC (1932) Art. 495 §2: “To perform an action which the arbitration court has no authority to perform, such court shall apply to the county court in whose district the action is to be performed.” CPC Art. 706 as it read prior to 17 October 2005: “To perform an action which it cannot perform itself, the arbitration court shall apply to the district court in whose district the action is to be performed.”
7 See e.g. R. Kuratowski, Sądownictwo polubowne (Arbitration), Warsaw 1932, p. 126; M. Rosenberg, Kodeks sądów polubownych (Arbitration Court Code), Warsaw 1933, pp. 34-35; J.J. Litauer, Komentarz do Procedury Cywilnej (Commentary on Civil Procedure), Warsaw 1933, p. 301; L. Peiper, Komentarz do Kodeksu Postępowania Cywilnego (Commentary on the Civil Procedure Code), vol. II, Cracow 1934, pp. 1000-1001; N. Goldwag, Przewodnik sędziego polubownego (Arbitrator’s Handbook), Warsaw 1938, pp. 47-52; I. Wajsfater, Sądy polubowne (Arbitration Courts), Warsaw 1938, pp. 43-44; K. Potrzobowski & W. Żywicki, Sądownictwo Polubowne, Komentarz dla potrzeb praktyki (Arbitration: A Practice Commentary), Warsaw 1961, pp. 74-77; S. Dalka, Sądownictwo polubowne w PRL (Arbitration in the People’s Republic of Poland), Warsaw 1987, pp. 92-93; T. Ereciński, in T. Ereciński (ed.), Komentarz do kodeksu postępowania cywilnego. Część pierwsza. Postępowanie rozpoznawcze (Commentary on the Civil Procedure Code: Part One – Proceedings on the Merits), Warsaw 1997, pp. 283-284; S. Dalka, in K. Piasecki (ed.), Kodeks postępowania cywilnego. Komentarz (Civil Procedure Code: Commentary), vol. II, Warsaw 1997, p. 547.
8 The institution of an “oath” [przysięga] referred to inter alia in CPC (1932) Art. 495 §1 was replaced by the Act of 27 April 1949 (Journal of Laws No. 32 item 240) with the institution of a “pledge” [przyrzeczenie].
9 See e.g. M. Rosenberg, op. cit., p. 34; L. Peiper, op. cit., pp. 1000-1001; M. Holub, Sądy polubowne (Arbitration Courts), Rohatyń 1934, pp. 24-25; R. Kuratowski, “Kilka uwag o stosunku sądów państwowych do sądów polubownych według K.P.C.” (A Few Remarks on the Relation of the State Courts to Arbitration Courts under the Civil Procedure Code), Głos Sądownictwa 1935 No. 4, p. 208; M. Zabarnik, “Pomoc prawna w postępowaniu przed sądem polubownym” (Legal Assistance in an Arbitration Proceeding), Głos Sądownictwa 1935 No. 9, p. 643; N. Goldwag, op.cit., pp. 47 & 52.
10 K. Potrzobowski & W. Żywicki, op. cit., pp. 75-76.
11 Art. 706 §1: “The arbitration court may take testimony from parties, witnesses and experts and administer oaths to them, but may not apply compulsory measures.”
12 See e.g. S. Dalka, op. cit., pp. 92-93; T. Ereciński, in J. Jodłowski & K. Piasecki (ed.), Kodeks postępowania cywilnego z komentarzem (The Civil Procedure Code with Commentary), Warsaw 1989, p. 1076; T. Ereciński, “Arbitraż a sądownictwo państwowe” (Arbitration and the State Court System), Przegląd Ustawodawstwa Gospodarczego 1994 No. 2, p. 6; M.P. Wójcicki, in A. Jakubecki (ed.), Kodeks postępowania cywilnego. Praktyczny komentarz (The Civil Procedure Code: A Practical Commentary), Cracow 2005, p. 1023; T. Ereciński, in T. Ereciński (ed.), Komentarz do kodeksu postępowania cywilnego. Część pierwsza. Postępowanie rozpoznawcze (Commentary on the Civil Procedure Code: Part One – Proceedings on the Merits), vol. 2, Warsaw 1999, pp. 322; S. Dalka, in K. Piasecki (ed.), Kodeks postępowania cywilnego. Komentarz (Civil Procedure Code: Commentary), vol. II, Warsaw 1997, pp. 545-546.
13 See note 4 above.
14 For a detailed treatment of this issue, see M. Łaszczuk, “O dopuszczalności odbierania przyrzeczenia od świadków przez sąd polubowny” (An Arbitration Court’s Authority to Administer Oaths to Witnesses), in P. Nowaczyk, S. Pieckowski, J. Poczobut, A. Szumański & A. Tynel (ed.), Międzynarodowy arbitraż handlowy u progu XXI wieku. Księga pamiątkowa dedykowana doktorowi habilitowanemu Tadeuszowi Szurskiemu (International Commercial Arbitration at the Threshold of the 21st Century: A Commemorative Volume Dedicated to Dr. Tadeusz Szurski), Warsaw 2008, pp. 69 ff.; cf. T. Ereciński & K. Weitz, op. cit., p. 317.
15 See e.g. T. Ereciński, in J. Ciszewski & T. Ereciński (ed.), Kodeks postępowania cywilnego. Komentarz. Część czwarta. Przepisy z zakresu międzynarodowego postępowania cywilnego. Część piąta. Sąd polubowny (arbitrażowy) (The Civil Procedure Code: A Commentary. Part 4 – Regulations on International Civil Procedure; Part 5 – Arbitration Courts), Warsaw 2006, p. 423; R. Morek, Mediacja i arbitraż (art. 1831-18315, 1154-1217 KPC). Komentarz (Mediation and Arbitration (CPC Art. 1831-18315 & 1154-1217): A Commentary), Warsaw 2006, pp. 227-228; Ł. Błaszczak & M. Ludwik, Sądownictwo polubowne (arbitraż) (Arbitration Courts), Warsaw 2007, p. 242; A. Zieliński, in A. Zieliński (ed.), Kodeks postępowania cywilnego. Komentarz (The Civil Procedure Code: A Commentary), Warsaw 2008, p. 1671.
16 K. Piasecki, Kodeks postępowania cywilnego. Tom III. Komentarz (Civil Procedure Code, Vol. III: A Commentary), Warsaw 2007, p. 301; M. Uliasz, Kodeks postępowania cywilnego. Tom II. Komentarz do artykułów 506 – 1217 (Civil Procedure Code, Vol. II: A Commentary on Art. 506-1217), Warsaw 2007, p. 767; T. Ereciński & K. Weitz, op. cit., p. 321.
17 See T. Ereciński & K. Weitz, op. cit., p. 321.
18 The Model Law was adopted by the United Nations Commission on International Trade Law (UNCITRAL) on 21 June 1985. In regulating the issue of assistance provided by a state court to an arbitration court under CPC Art. 1192 §1, Polish lawmakers relied to a greater extent on previous Polish solutions than on Art. 27 of the Model Law, which was implemented in the Polish legal system in large part by the Act of 28 July 2005 Amending the Civil Procedure Code. Art. 27 of the Model Law concerns only assistance in an evidentiary proceeding.
19 In the case of an expert, the obligation to appear before the arbitration court and give an oral opinion arises out of the contractual relationship between the expert and the party; see the comment on the nature of this relationship in T. Ereciński & K. Weitz, op. cit., p. 319. Similarly, on the nature of the legal relationship between the party and the expert, and the expert’s liability in damages for refusal to appear before the arbitration court, under German arbitration law, see G. Wagner, in F.B. Weigand, Practitioner’s Handbook on International Arbitration, Munich 2002, p. 770.
20 See the extensive discussion of this topic in the article by M. Łaszczuk, op. cit., pp. 69 ff.
21 Under CPC (1932) Art. 502 §2 (prior Art. 495). K. Potrzobowski & W. Żywicki, op. cit., pp. 75-76.