Polish Supreme Court judgment
dated 23 April 2021
Case No. III CSKP 78/21
Summary by arbitraz.laszczuk.pl:
The Internet Domains Arbitration Court at the Polish Chamber of Information Technology and Telecommunications (the ‘Arbitration Court’) rendered an award of 21 September 2017 in the case brought by D. Ż. against J. K., in which it found that the respondent infringed the rights of the claimant as a result of entering into a “(…).pl’ Internet domain maintenance agreement. The Arbitration Court, among other things, obliged the respondent to pay the claimant PLN 4,880.
J. K. filed a petition to set aside the arbitration award. According to the petitioner, the arbitration agreement was invalid because of the fact that M. T., the advocate who entered into the arbitration agreement on behalf of D. Ż., had not been authorized to do so. Therefore, the petitioner claimed that the arbitration award was contrary to the fundamental principles of the legal order of the Republic of Poland.
On 5 December 2018, the Court of Appeal dismissed the petition to set aside the arbitration award. It found that the power of attorney granted to M. T. – interpreted in the light of Art. 65 § 1 of the Polish Civil Code (the ‘PCC’) – authorized M. T. to enter into the arbitration agreement on behalf of the principal. According to the wording of the power of attorney, advocate M. T. was authorized to represent D. Ż. in the case before the Arbitration Court in the case concerning the “(…).pl” domain in all instances, before all courts and authorities which have jurisdiction in the case, as well as in enforcement proceedings. M. T. was also authorized to ‘take any and all necessary and desirable actions associated with the subject matter of the power of attorney, including to make and accept declarations of will’. Thus, the power of attorney indicated a group of activities regarding a particular dispute which is adjudicated by a given arbitral tribunal.
J. K. filed a cassation appeal to the Polish Supreme Court alleging that Art. 365 § 1 in connection with Art. 1216 § 1 of the Polish Civil Procedure Code (the ‘PCPC’) and Art. 1206 § 1 point 1 in connection with Art. 88 PCPC in connection with Art. 89 of the PCC had been infringed.
The Polish Supreme Court found the cassation appeal meritless. Pursuant to its stance, the power of attorney had been granted by a party seeking to institute legal proceedings and without an arbitration agreement indicating the object of the dispute (Art. 1161 § 1 of the PCPC), representation in the case regarding the domain (including filing a lawsuit) would be in fact unusable. Therefore, entering into the arbitration agreement was deemed a necessary activity referred to in the power of attorney.
The Polish Supreme Court made a reference to the Polish Supreme Court order dated 1 December 2017, Case No. I CSK 170/17.
Excerpts from the text of the court’s ruling:
1. [P]assing an order concerning recognition or enforcement of an arbitration award does not preclude any subsequent setting aside of the award …. .
2. In proceedings regarding recognition and enforcement of a domestic arbitration award, a state court examines only the existence of the prerequisites indicated in Art. 1214 § 3 of the PCPC – they do not include the invalidity or ineffectiveness or expiration of an arbitration agreement – which corresponds only to a part of the grounds examined in a case regarding a petition to set aside an arbitration award, that is the grounds examined by a court ex officio under Art. 1206 § 2 of the PCPC. Therefore, there is a need to agree with the view that, with reference to domestic arbitration awards, proceedings regarding a petition to set aside an arbitration award primarily have a control function.