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. [I]f a participant of legal proceedings before a foreign arbitral tribunal did not contest the jurisdiction of the arbitral tribunal and did undertake substantive defense, such a participant is not able to successfully seek non-existence or invalidity of the arbitration agreement in the proceedings concerning recognition and enforcement of the arbitration award… .

2. [T]he wording of Art. II 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 an arbitral tribunal. It is thus possible to conclude such an agreement also using means of reaching agreement at a distance, for example by an exchange of faxes or statements by email.

3. With reference to the public policy clause (Art. V (1) (b) of the New York Convention), the Polish Supreme Court in its case law explained that the views of the doctrine regarding the fundamental principles of the legal order referred to in Art. 1214 § 3 point 2 of the Polish Civil Procedure Code shall apply. In other words, these are the principles arising out of the Constitution and the principles governing particular fields of law, a violation of which is incompatible with the very concept of a specific legal institution in Poland, not just with particular provisions regulating the same institution in the country of origin of the arbitration award and in Poland, as the state of execution of the award, which results in the conclusion that in proceedings concerning enforcement of an arbitration award, its substantive review is not allowed… .

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.

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. [I]nfringement of the provisions of substantive law shall be examined in the proceedings initiated by a petition to set aside an arbitration award only when the infringed provisions set principles of the legal order of the Republic of Poland, whereby the public policy clause shall be interpreted restrictively.

1. In fact, an effective pleading of existence of an arbitration agreement causes a state of inadmissibility of the proceedings, which makes it necessary to dismiss the lawsuit … .

2. [A]n arbitration agreement cannot violate the principle of equality, however, Art. 1161 § 2 of the PCPC in fact provides only one example of infringement of this principle, i.e. the arbitration agreement containing a provision which entitles only one party to bring a case before an arbitration tribunal provided for in the arbitration agreement or before a court … .

Pursuant to Art. 1204 § 2 of the Polish Civil Procedure Code, permanent arbitration courts, and the International Court of Arbitration at the International Chamber of Commerce in P. is such a court, may keep files in their own archives and then they should make them available to courts and other authorities on their demand.