Łódź Court of Appeal judgment
dated 19 April 2018
Case No. I ACa 1557/16
Summary by arbitraz.laszczuk.pl:
M. R. and E. R. had separate estates since 1 February 2005 by virtue of a judgment of the District Court in Opoczno. M. R. entered into a revolving loan facility with (…), a limited liability company, based in B. in May 2005. E. R. was indicated in the agreement as the guarantor.
A dispute arose between the parties to the agreement. Therefore, the Arbitral Tribunal delivered an award of 9 May 2006 and ordered M. R., as the borrower, and E. R., as the guarantor, to pay jointly and severally to the company in B. over PLN 10,200 with interest and the cost of the proceedings. The sole arbitrator was an attorney-at-law P. B.
However, E. R. filed a petition to set aside the arbitration award. She claimed that she learned about the arbitration award on 11 September 2016, when she received a copy of the award with the notice on initiation of execution proceedings against her. The petitioner denied that she was a guarantor of the loan facility concluded by her ex-spouse M. R. and indicated that her signature on the loan agreement was forged. Therefore, she alleged that the arbitration agreement did not exist and that there were grounds for setting aside of the arbitration award set out in Art. 1206 § 1 (2) and (5) of the Polish Civil Procedure Code (the ‘PCPC’).
Participant of the legal proceedings, the company based in B., requested that the petition be dismissed and alleged that, in its opinion, the petitioner failed to comply with the deadline for filing the petition under Art. 1208 of the PCPC. The second participant of the legal proceedings, the G. V. Non-Standardised Securitisation Closed-End Investment Fund based in W., requested, among other things, that the petition be dismissed as late.
The Court of Appeal in Łódź found that on the return receipt notice concerning the consignment with the copy of the award there was, among other things, a signature and a note “B., a son”. However E. R. does not have a son named B., she only has son J. R. Since M. R. wrongfully obtained the loan facility and forged the signature of his ex-wife, he was sentenced to a fine by the District Court in Opoczno on 29 November 2017. However, prior to the aforementioned judgment, the execution proceedings against M. R. and E. R. were initiated.
In the opinion of the Court of Appeal the petitioner filed a petition to set aside the arbitration award within the deadline resulting from Art. 1208 of the PCPC.
According to current wording of Art. 1208 § 1 of the PCPC, a petition to set aside an arbitral award shall be filed with the court of appeal whose territory includes the court that would have been proper to hear the case if the parties had not made an arbitration agreement, or if such basis is absent, the Warsaw Court of Appeal, within two months after service of the award, or if a party has applied for supplementation, correction or interpretation of the award, within two months after service by the arbitral tribunal of the ruling on the application.
Prior to the amendment of 10 September 2015, a petition to set aside an arbitration award could be filed within 3 months. Pursuant to Art. 1208 § 2 PCPC, which was not the subject of that amendment, if a petition to set aside an arbitral award is based on grounds provided in Art. 1206 § 1 (5) or (6) PCPC, the deadline for filing the petition shall run from the date when the party learned of such grounds. However, a party cannot demand that an award be set aside more than five years after the date of the service of the award.
The petitioner did not enter into the loan facility with the company based in B., therefore it cannot be considered that she was bound by the arbitration agreement. The Court of Appeal found that the allegation concerning the basis for setting aside of the arbitration award set out in Art. 1206 § 1 (5) PCPC was founded in this case. According to this provision, a party may by petition demand that an arbitral award be set aside if the award was obtained by means of an offence or the award was issued on the basis of a forged or altered document.
Taking everything into consideration, the Court of Appeal in Łódź, among other things, overruled the award of Arbitral Tribunal against E. R.
Excerpts from the text of the court’s ruling:
1. If (…) a petition to set aside an arbitration award is based on the fact that the award was obtained by means of an offence or the award was issued on the basis of a forged or altered document or the petition is based on the charge of res iuducata, the petition may be filed within the time limit calculated from the day when the party learned of that ground.
2. An arbitration agreement is a contract to which provisions of the Polish Civil Code apply.