Gdańsk Appellate Court order
dated 29 June 2012
Case No. V ACz 450/12
Summary by arbitraz.laszczuk.pl:
P. SA, with its registered office in W., submitted an offer to sell shares in a company to M. SA, with its registered office in Ś., which apparently purported to accept the offer. P. SA denied that the offer was binding and refused to convey the shares. M. SA filed a claim in arbitration against P. SA, apparently seeking conveyance of the shares, and P. SA filed a counterclaim seeking a declaratory judgment, apparently to the effect that the offer to sell the shares was not binding. The arbitration court issued an award in favour of M. SA.
P. SA brought an action against M. SA to set aside the arbitration award before the regional court in B. The respondent M. SA sought to transfer the case to the regional court in W. The court in B. held that it was not the proper court, and forwarded the case to the regional court in W., which would have been proper to hear the claim filed by M. SA were it not for the arbitration clause, because it was the location of the registered office of P. SA, which would have been the defendant on the main claim, and also because it was the place of performance of the share sale agreement in question.
P. SA filed an interlocutory appeal against the order transferring the case, alleging that venue to hear the petition to set aside the award could also be based on the venue that would have been proper to hear the counterclaim, and thus the petitioner could elect either court; and that the regional court erred in basing the alternative determination of venue on the place of performance of the share sale agreement rather than the “general agreement” in connection with which the share sale agreement would be concluded, which in any event was not W. but Ś., where most of the actions in performance of the share sale agreement would take place, including actual transfer of the shares.
The Gdańsk Appellate Court held that the court proper to hear the petition to set aside the arbitration award was the court that would have been proper to hear the claim asserted by the claimant in arbitration if not for the arbitration clause, which was W., where the defendant (P. SA) had its registered office. The dispute submitted to arbitration did not concern the general agreement as such (which would not come into force until the shares were transferred), but only whether the offer made by P. SA was binding. The place of performance of the share sale agreement would be an alternative basis for venue, but that would also be W., where P. SA received the statement by M. SA accepting the offer to sell the shares and where the price would be paid to the bank account of P. SA, also located in W. Venue thus established on the main claim by M. SA would be unaffected
by the counterclaim filed by P. SA. The fact that P. SA would have had a choice of venue
if it had asserted its counterclaim as the main claim in a separate action was irrelevant. The court denied the appeal accordingly.
Excerpts from the text of the court’s ruling:
1. Under the wording of Civil Procedure Code Art. 1158 §1, the court proper to hear a petition to set aside an arbitration award will be the court that would have been proper to hear the case if the parties had not made an arbitration clause. This rule should be understood to mean that any court could be proper, without any limitations, and thus proper based on general venue or alternative venue, at the election of the petitioner, of course under the condition that exercise of such election is possible at all in the given case.
2. Under Civil Procedure Code Art. 204 §2, a counterclaim is filed with the court of the main statement of claim, and thus it should be found that the election by the defendant (the petitioner) to file a counterclaim during the course of the proceeding before the arbitration court, and not a separate claim in a separate proceeding, determines its current litigation stance and means that the court proper to hear a petition to set aside the arbitration award will be the same court that would have been proper to hear the main claim (Civil Procedure Code Art. 1158 §1 in connection with Art. 204 §2), and not the court proper for a claim asserted … in a separate proceeding rather than as a counterclaim.