Warsaw Court of Appeal order
dated 24 May 2018
Case No. VII Ago 40/18
Summary by arbitraz.laszczuk.pl:
P. M applied for an enforcement clause for an award of the Arbitral Tribunal (…) in W. of 23 April 2015 and demanded the cost of proceedings.
(…), a joint-stock company, requested the application be dismissed.
The Court of Appeal in Warsaw found the application meritless.
According to Art. 1213 § 1 of the Polish Civil Procedure Code (the ‘PCPC’) the court shall rule on recognition or enforcement of an arbitration award or a settlement made before an arbitral tribunal upon application of a party. The party shall enclose with the application the original award or settlement or a copy thereof certified by the arbitral tribunal, as well as the original arbitration agreement or an officially certified copy thereof.
Pursuant to Art. 129 § 2 of the PCPC, the party may file a certified copy of a document instead of an original document, if its conformity with the original has been certified by a notary public or the party’s proxy acting in the case being an advocate, an attorney-at-law, a patent agent or an attorney of the General Counsel to the Republic of Poland.
It is impossible to meet the requirements specified in Art. 1213 § 1 of the PCPC by attaching to an application a certified copy of the document containing the arbitration agreement, certified to be a true copy of the original by the party’s counsel in the case who is an advocate. Art. 1213 § 1 of the PCPC in terms of documenting the existence of an arbitration agreement requires the petitioner to file either the original arbitration agreement (a document containing the arbitration agreement) or an officially certified copy thereof. It is not permissible to file an arbitration agreement in any other form, especially in the form provided for in Art. 129 § 2 of the PCPC.
In the opinion of the Court of Appeal, Art. 1213 § 1 of the PCPC is a special provision with respect to Art. 129 of the PCPC. The provisions governing an appeal apply accordingly to proceedings for enforcement of an arbitral award or a settlement made before an arbitral tribunal (Art. 1213 1 § 2 of the PCPC), so under Art. 391 § 1 of the PCPC, also Art. 129 of the PCPC. However, the last of the aforementioned provisions could be applied in proceedings concerning enforcement of an arbitration award – with regard to an arbitration agreement – only if Art. 1213 § 1 of the PCPC had not created a special provision.
If a copy certified to be a true copy of the original by an advocate or an attorney-at-law replaced the original arbitration agreement (see Art. 129 § 2 of the PCPC), Art. 1213 § 1 of the PCPC in fact would be deprived of its normative content. It would not introduce any special solutions as to the form of documents proving for the existence of an arbitration agreement in the face of rules applicable in declaratory proceedings and would be needless from this perspective.
Excerpts from the text of the court’s ruling:
[A]rt. 1213 § 1 of the Polish Civil Procedure Code is a lex specialis (special provision) with respect to Art. 129 § 2 of the PCPC. Therefore, in proceedings concerning enforcement of an arbitration award it is not permissible to file – instead of an original or officially certified arbitration agreement – a copy thereof certified to be a true copy of the original by an advocate.