1. [P]roceedings initiated by a petition to set aside an arbitration award do not lead to a repeated substantive consideration of the dispute, but their purpose is only to verify the applicant’s pleadings presented in the petition as to existence of grounds referred to in Art. 1206 § 1 of the Polish Civil Procedure Code, and to assess if any of the conditions referred to in Art. Art. 1206 § 2 of the Polish Civil Procedure Code exist, regardless of whether the applicant relied thereon (…).

2. Application by an arbitral tribunal of the substantive law applicable in the case is subject to control by a common court, only inasmuch as it is required to assess the award in terms of compliance with the public policy clause specified in Art. 1206 § 2 (2) of the Polish Civil Procedure Code (…).

3. An arbitration award may be set aside pursuant to the public policy clause, only if violation of substantive law by an arbitral tribunal has consequences which are impossible to be consistent with the fundamental principles of Polish legal order, i.e. which are clearly and grossly contrary to these principles (…). An ad casum assessment whether an award violates the fundamental principles of legal order shall be made with caution, with a preference for restrictive interpretation of its wording (…).

4. Abstractedly speaking, there are no doubts that an assessment of an arbitral tribunal under Art. 1206 § 1 and 2 of the Polish Civil Procedure Code requires – to a smaller or larger extent – determination of the course of broadly understood arbitration proceedings (procedural actions of the parties, procedural decisions of the arbitration tribunal, examination of evidence, factual findings and interpretation, as well as application by the arbitral tribunal of relevant provisions of substantive law (…)), which also applies to the appellate court.   

[The Purchaser] is not (…) bound by the arbitration agreement made in the lease agreement (…).

1. [T]he concept of an ‘agreement in writing’, whereunder parties undertake to refer a dispute to arbitration, has been explained as meaning both an arbitration clause contained in a contract (i.e. relating to disputes which may arise in the future) as well as a compromise, i.e. an agreement to refer a dispute to arbitration concluded after a dispute has arisen.

2. [D]evelopment of means of distance communication results in acceptance of the viewpoint that the intent of Art. II (2) sentence 2 of the New York Convention is fulfilled also if a declaration of will is made by new technical methods, including an exchange of e-mails or faxes. In any of these situations, however, two requirements need to be fulfilled. Firstly, since we are dealing with a contract, it is necessary for each of the parties to clearly express its will to refer the dispute to arbitration, which is tantamount to acceptance of exclusion of a case from jurisdiction of a state court. Secondly, mutual acceptance of the idea to refer a dispute to arbitration is not sufficient. It is necessary for the parties to make a declaration of will in a way that fulfils the requirement of written form within the meaning of Art. II (2) sentence 2 of the New York Convention.  

3. To conclude an ‘agreement in writing’ within the meaning of Art. II of the New York Convention it would be also necessary in the situation at hand to make another declaration, whose content would express the will of the contractor agreeing to having a case recognized by an arbitration court. Only then it could be possible to say that was ‘an exchange of letters or telegrams’ (also faxes, e-mails, etc.) within the meaning of Art. II (2) sentence 2 of the New York Convention, understood as documents referring or corresponding to each other and containing consistent declarations of will of the parties to refer a dispute to arbitration. This criterion is not fulfilled, if the parties correspond with each other about matters related to the contract, but from the content of this correspondence it does not follow that an ‘exchange’ took place within the meaning of Art. II (2) sentence 2 of the New York Convention, so an ‘exchange’ of declarations concerning establishment of jurisdiction of an arbitration court.

4. [C]onclusion of an ‘agreement in writing’ or making an arbitration agreement is always a subject to assessment by an arbitration tribunal or a state court which decides on its jurisdiction or lack of jurisdiction to hear the case.

5. Effective reliance on the grounds for application of Art. 1162 § 2 sentence 2 of the Polish Civil Procedure Code is (…) possible only if a contract is concluded with respect to which a dispute may arise, i.e. the so-called main contract (…). 

6. [T]o effectively rely on existence of an arbitration clause, it is not sufficient for the contractor  to challenge the conclusion of the main contract (for example, a sales contract) in which reference is made to the arbitration agreement contained in another document. The issue of existence of the arbitration agreement always requires a separate assessment and a decision on the validity and effectiveness of the arbitration clause.

7. Competence of an arbitration tribunal to settle a dispute results from the will of the parties. This will should be (in legal categories, i.e. terms of assignability  of the declaration) unquestionable (…).

1. The Court of Appeal shall rule on the enforcement of an arbitration award using provisions on appeal (Art. 1213¹ of the Polish Civil Procedure Code) and an order of the court of the second instance on enforcement of an arbitral award issued abroad shall be subject to a cassation appeal (Art. 1215 § 3 of the PCPC).

2. An application for declaration of enforceability in the form of granting of an enforcement clause to an arbitration award may be filed by a legal successor of a beneficiary of the arbitration award, if the beneficiary for the first time launches the procedure of incorporation of such an award to the domestic legal order (…). Jurisdiction of the court ruling in such a case is extended to include examination of the prerequisites from Art. 1214 § 3 and 1215 § 2 of the Polish Civil Procedure Code and legal succession (Art. 788 of the PCPC).

3. Article 788 of the Polish Civil Procedure Code applies to both court and out-of-court executive titles, including an arbitration awards which, after being declared enforceable by a court, have the same legal validity as a state court judgment (Art. 1212 § 1 of the Polish Civil Procedure Code).

4. [A]rbitration awards can be declared enforceable only one time.

5. Arbitration award is not an executive title (Art. 777 § 1 of the Polish Civil Procedure Code (…)). When a court declares it enforceable, such an award has the same legal validity as a court judgment (Art. 1212 § 1 of the PCPC) and becomes a writ of enforcement (Art. 1214 § 2 of the PCPC). An arbitration award which has been declared enforceable shall have such binding power as court judgments in force (Art. 365 of the PCPC) and shall have the force of res iudicata (Art. 366 of the PCPC). Such a writ of enforcement may be granted an enforcement clause as a result of a transfer of rights (Art. 788 of the PCPC) provided that the applicant is a legal successor of the person who obtained the writ of enforcement and the applicant proves legal succession with an official document or with a private document with an officially certified signature.

6. Neither legitimacy of a claim nor an obligation of a debtor resulting from an execution title to provide is not examined in the proceedings concerning enforcement of a foreign arbitration award (…).

1. [T]he reasons for refusal of recognition or enforcement of a foreign arbitration award, referred to in Art. V (1) of the New York Convention, are taken into account only upon request of a party seeking refusal of recognition or enforcement of an award. This follows expressly from the wording of the New York Convention (…).

2. [I]t is impossible to assume that a simple reference to the circumstances referred to in Art. V (1) of the New York Convention, considered only at the request of a party could be decisive for recognition or enforcement of an award being in contradiction to the public policy clause, i.e. the circumstance considered ex officio in the light of Art. V (2) letter b of the New York Convention.   

3. All persons who participated in the foreign proceedings as a party or as a participant take part in the proceedings for recognition of a foreign arbitration award, and an exception to this rule can be only accepted when an application for recognition of a foreign award concerns a part of the award which does not apply to all parties or participants. Despite a change of the provisions regulating recognition of foreign arbitration awards, it needs to be considered that the stance of the Polish Supreme Court presented in the aforementioned ruling [I CSK 330/06] remains valid.

Although one cannot exclude the admissibility of modification of the Rules of Arbitration by the parties, it needs to be assumed that in this respect the claimant and the respondent have not made any modifications. It cannot be assumed that such modifications resulted from the fact that the sole arbitrator preferred – by issuing procedural orders – the use of opinions of private experts appointed by each of the parties, since these orders could not modify the Rules of Arbitration and none of the parties understood them that way (…).

1. According to Art. 1212 § 1 of the Polish Civil Procedure Code an arbitral award or a settlement made before an arbitral tribunal shall have legal effect equal to a court judgment or a settlement made before a court, upon recognition or enforcement thereof by the court. Confirmation of the enforceability of an arbitral award or settlement made before an arbitral tribunal which is capable of enforcement by way of execution, is made by the proceedings regarding obtaining an enforcement clause for it (Art. 1214 § 2 of the Polish Civil Procedure Code).

2. In the course of the proceedings for recognition or enforcement of an arbitral award, the appellate court does not examine the merits of the claim established by the award, but limits itself solely to finding whether there are no negative prerequisites for recognition or enforcement of an award in the case. Art. 1214 § 3 of the Polish Civil Procedure Code enumerates 3 negative prerequisites justifying refusal to recognize or enforce an arbitration award.

1. By entering into an arbitration agreement, the parties revoke the competence of state courts to adjudicate the dispute, entrusting it to a body acting as per the will of the parties. Consequently, the state court control over an arbitration award, as much as it is necessary and statutorily guaranteed, is not instance control and by its nature must be incomplete, limited to the most far-reaching shortcomings and failures of arbitration, which are relevant not only from the point of view of the parties, but also of the general interest.

2. Given the vital role of the principle of the court being bound by the claim (…), it is deemed that the case in which an arbitral tribunal rules ultra petita ad aliu should not revoke the control of the state court. This assumption should be considered legitimate also in the light of the Polish Civil Procedure Code, with the proviso that the character of arbitration may justify an approach to the assessment of the limits of the claim more flexible than in the case of state courts.

3. [A]lthough, Art. 1188 § 1 of the Polish Civil Procedure Code does not indicate obligatory elements of a statement of claim in arbitration proceedings, including the exact wording of the claim (cf. Art. 187 § 1 point 1 of the Polish Civil Procedure Code), nonetheless the necessity to concretise the claim as an element determining the subject matter of arbitration proceedings may be derived indirectly from Art. 1202 first sentence of the Polish Civil Procedure Code; it may also be derived from the rules of procedure agreed upon by the parties or defined in the rules of arbitration.

4. Going beyond the limits of the statement of claim collided not only with the principle of availability which by virtue of its functions and the importance of the freedom of will for the institution of arbitration must be included into the principles of arbitration proceedings (…), but also with the principle of equality of the parties.

5. [S]ince the Arbitration Court ruled on a different claim than the claim advanced, the applicant was deprived of the ability to defend its rights.    

1. The public policy exception (…) is indeterminate, which leaves a court seized of a particular case with a wide range of discretion. If the exception is applied, the question is not whether an arbitration award is consistent with all relevant mandatory rules of the law, but whether it has caused an effect contrary to the fundamental principles of State legal order. Substantive review of arbitration awards is therefore limited to violation of the principles of legal order (…). If parties decide to submit a dispute to arbitration, they need to take these circumstances into account, including also little external control of arbitration awards (…). This does not mean, however, that if a dispute is submitted to arbitration, the parties have to agree to all kinds of procedural and substantive shortcomings of the arbitration tribunal.

2. The fundamental principles of legal order being the basis of assessment of an arbitration award shall be understood not only as constitutional norms, but also as ground rules in particular fields of law (…), and examination of a case in the scope of the grounds for setting aside an award under Art. 1206 § 2 (2) of the Polish Civil Procedure Code shall not go beyond a serious violation of law (…).

3. The public policy exception covers both the fundamental principles of procedural and substantive legal order. Public policy may procedurally be the basis for assessment of an award in two aspects. Firstly, subject to assessment is the compliance of the procedure which led to issue of an arbitration award with the fundamental procedural principles of legal order, and secondly, subject to assessment are the effects of an award from the point of view of their compliance with the procedural legal order, i.e. whether they are compatible with the procedural law system (…).  

4. Compliance or non-compliance of an arbitration award with the fundamental principles of legal order is determined by the wording thereof; it is however not allowed to make such an assessment on the basis of facts and evidence unknown to the arbitration tribunal.

5. It cannot be (…) excluded in advance that due to the consequences for the appealing party, an award adjudicating interest from a different date than the date resulting from the terms of the contract and relevant legal regulations will be in breach of the fundamental principles of legal order, especially if the time lag is significant (…).   

1. [A]n appeal against a court order concerning recognition of a foreign arbitration award is decided at a hearing in camera.

2. [A]n application concerning enforcement of a foreign arbitration award by granting of an enforcement clause, as well as an appeal against this order shall be decided by courts at hearings in camera (…).

3. [I]t shall be assumed that when Art. 1215 § 1 of the PCPC indicates the court which “rules after conducting a hearing”, this means, similarly as in the case of the preceding Art. 1214 § 1 of the PCPC, only the court of first instance. This conclusion is supported by the provisions of Art. 1158 § 1 of the PCPC.

4. In view of (…) the thesis that a party which entered into a dispute before a foreign arbitral tribunal cannot claim in the proceedings for enforcement of the award of this foreign arbitral tribunal that an arbitration agreement does not exist, it should be noted, above all, that the Court of second instance (…) has failed to apply this sanction to the participant of the proceedings. Nevertheless, it must be taken into consideration that the doctrine and case law (…) approve of such a position, although the New York Convention does not provide for the preclusion of a pleading of an arbitration agreement. In its reasoning it is emphasized that the essence of the New York Convention is to make the parties act in accordance with the principles of good faith and with the public decency, and thus the parties are prohibited from acting contrary to these principles. This interpretation makes it impossible to take disloyal actions against co-participants and the arbitral tribunal. However, it should be born in mind at all times that the presented view concerns preclusion of pleadings which the application’s opponent had failed to raise in the deliberative proceedings before the arbitral tribunal. If the pleading of non-existence or invalidity of an arbitration agreement was raised before a foreign arbitral tribunal, a party to the proceedings may still effectively invoke this pleading in the proceedings concerning enforcement of the arbitration award in Poland. This opportunity is not taken away, if the arbitral award has not been challenged before the courts of its origin, which is optional in the light of the New York Convention.

5. Although this does not follow directly from the wording of Art. V (1) letter a in fine of the New York Convention, this provision shall be applied not only if an arbitration agreement is concluded, but is invalid. This provision shall also be applied in the situation when there is no arbitration agreement (no arbitration agreement has been concluded).

6. [I]t is assumed that a ‘written form’ includes also documents exchanged by means of distance communication. Although the provisions of the New York Convention done in 1958 do not expressly indicate other forms of distance communication, a teleprinter, a telefax and forms of electronic communication, including e-mails, are treated in the doctrine equally to a telegram, if they result in automatic written record of the transmitted text. An electronic signature is not required to exchange electronic correspondence. It is permissible to conclude an arbitration agreement also in the ‘ordinary’ electronic form, which does not require an electronic signature verifiable by a valid qualified certificate (…).

7. It is impossible to conclude an arbitration agreement either tacitly or implicitly, as the written form is required.

8. An arbitration agreement is not a provision of an obligatory agreement, even if this agreement has the form of a clause in the ‘main’ contract, and therefore its effectiveness is considered autonomously.

9. [A]ssessment of the validity and efficiency of an authorisation to conclude an arbitration agreement shall be made autonomously, i.e. regardless of the assessment of existence of the entitlement of the attorney-in-fact to perform a legal act which is the source of the legal relation on the basis whereof disputes may be subjected to the competence of the arbitral tribunal.