arbitration procedure

1. [A]n arbitration award may be set aside only as a result of reasons indicated in Art. 1206 of the PCPC… .

2. [A] state court cannot examine the dispute between the parties to the arbitration proceedings on the merits within the proceedings to set aside an arbitration award.

3. An assessment as to whether an arbitration award violates the fundamental principles of the legal order shall be formulated narrowly and an affirmative conclusion may be reached only if the effects of the arbitration award would result in a material violation of the aforementioned principles… .

4. [C]ompliance or non-compliance of an arbitration award with the fundamental principles of the 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 arbitral tribunal.

5. [T]here is a great deal of autonomy in arbitration, which is entirely consistent with the intentions of the lawmaker, distinctly limiting the review capabilities of a state court. The fundamental objective of this regulation is to expedite the procedure for resolving civil disputes, and not to create an additional phase of pre-judicial procedure. Parties deciding to submit a dispute to arbitration must take these conditions into account, which also include scant external review of arbitration awards.

6. The procedural public policy may be the basis for assessment of an arbitration award in two aspects. Firstly, the procedure which led to the delivery of the arbitration award is assessed for its compliance with the fundamental procedural principles of the legal order, secondly, the effects of the arbitration award are assessed from the perspective of their consistency with the procedural public policy, i.e. whether they are compatible with the procedural legal system, for example, whether they do not infringe res iudicata or the rights of third parties.

7. In the case law, the fundamental principles of the legal order include, among other things, the principle of civil liability for the injury caused…, the principle of the restitutive nature of liability for damages…, the pacta sunt servanda principle…, the principle of business freedom and freedom of contract, the principle of contractual fairness…, the principle of protection of property rights…, the principle of the autonomy of the will of the parties and of the equality of entities… .

1. Deprivation of a party of the right to defend itself shall be understood strictly. A party is deprived of the ability to defend its rights, if an arbitral tribunal fails to hear the party at all or gives this party no opportunity to provide explanations and statements with reference to the claims of the opposing party… .

2. It is possible… to proceed simultaneously before a state court and an arbitral tribunal. However, if two different rulings have been rendered in the case – one by the arbitral tribunal and one by the state court, this shall be a basis for setting aside of the arbitration award pursuant to Art. 1206 § 1 point 6 of the PCPC.

1. [B]y entering into an arbitration agreement, the parties consciously waived submission to the strictures of proceedings before a state court.

2. Therefore, it is not unreasonable to state that by concluding an arbitration agreement, the parties limit their constitutional and conventional right to court.

3. A party is deprived of the opportunity to defend its rights before an arbitral tribunal when the principle of equality of the parties has been violated, and one of the parties is not heard and does not have the opportunity to address the evidence and allegations presented by the opposing party. For these reasons, every instance in which an arbitral tribunal refuses to admit evidence sought by a party cannot be equated with that party being deprived of the right to a defense. This happens only when a party has no opportunity to present and argue for its position… .

4. [A] petition to set aside an arbitration award is not an appellate instrument, but a type of extraordinary judicial review by a state court over the activity of an arbitral tribunal. Thus in proceedings to set aside an arbitration award a state court cannot consider a dispute between the parties to the arbitration proceedings on the merits… .

1. Provisions regarding grounds of a petition to set aside an arbitration award (Art. 1206 § 1 and 2 of the PCPC) in proceedings initiated thereby constitute a basis for a substantive ruling on the merits of the case, which justifies treating them, in the context of the grounds for a cassation appeal, as a functional equivalent to substantive law provisions… .

2. [A]rbitrability of a dispute, which is one of the prerequisites of the effectiveness of an arbitration award, is subject to assessment by the court considering the petition to set aside an arbitration award, regardless of whether the petitioner has raised particular allegations in the arbitration proceedings or not, or has invoked particular allegations in the petition or not … .

3. Compliance with the requirements regarding the composition of an arbitral tribunal, including the correct appointment of arbitrators, may be … subject to assessment in the proceedings to set aside an arbitration award irrespective of whether an arbitral tribunal has decided on this matter previously.

4. Art. 1206 § 1 point 4 of the PCPC shall apply with regard to irregularities in the composition of an arbitral tribunal at all stages of the proceedings, including the stage of appointment of the arbitrators by the parties or a third party. This applies also to incorrect representation of these persons by appointment of the arbitrators.

5. Failure to comply with the requirements on composition of an arbitral tribunal constitutes a basis for setting aside an arbitration award regardless of its effect on the outcome of the case … .

6. Proceedings to set aside an arbitration award are proceedings separate from the prior arbitration proceedings and its aim is not to consider the dispute resolved by the arbitral tribunal on merits.

7. [S]pecific rules of representation of the defendant company in the proceedings regarding revocation or a declaration of invalidity of a shareholders’ resolution (art. 253 of the Commercial Companies Code) apply also in proceedings to set aside an arbitration award delivered in a dispute whose object is a claim for revocation or declaration of invalidity of a shareholders’ resolution.

8. The entity structure of the proceedings initiated by the petition to set aside the arbitration award, including the ability of the management board in corpore having special judicial capacity to act as a party is the same as in the prior arbitration proceedings, in which the arbitral tribunal ruled on potential defectiveness of a resolution, although procedural roles of the entities participating in the proceedings may change. A judgement delivered in the proceedings to set aside an arbitration award is decisive for the fact whether consideration on the merits of a resolution’s effectiveness remains in force, and indirectly, whether such consideration may acquire the same permanent legal force as a judgment of a state court (Art. 1212 § 1 of the PCPC). Therefore, the same risks regarding a conflict of interests on the side of the representatives of a company, which justify application of specific rules of representation in proceedings concerning revocation or declaration of invalidity of a shareholders’ resolution, are present in proceedings to set aside the award. In conjunction with a protective function of Art. 253 § 2 of the Commercial Companies Code, the aforementioned arguments are in favor of extending those specific rules to the proceedings to set aside an arbitration award, in which the arbitral tribunal ruled on a claim for declaration of invalidity or revocation of the shareholders’ resolution, regardless of the fact whether in such proceedings a company whose shareholders have adopted the resolution is the petitioner or the other party in the dispute.

9. The grounds of a petition to set aside an arbitration award are not of a disjunctive character; they may also be in a causal relation with respect to each other… .

10. One of the fundamental principles of arbitration is the principle of equal treatment of the parties (Art. 1183 of the PCPC). The principle is of a fundamental and axiological character in arbitration… . The principle concerns not only the equal treatment of the parties in the arbitration proceedings in the context of the right to be heard and the procedural means available to the parties, but also at the stage of formation of the arbitral tribunal. A violation thereof results, i.a. from the lack of the necessary equilibrium between the parties by appointment of the arbitrators, which may result not only from the wording of the arbitration agreement (Art. 1161 § 2 of the PCPC), but also from factual circumstances in which the appointment of arbitrators takes place.

1. [T]he state court cannot, within the proceedings to set aside an arbitration award, settle a dispute on the merits between the parties to the arbitration proceedings… .

2. Only a violation of substantive legal norms, causing an arbitration award to result in a clear violation of the overriding principles of the legal order or in a conflict with particular principles of social coexistence may constitute a violation of the principles of the rule of law.

3. [R]eview of compliance of an arbitration award with the public policy clause is not of an appeal character and cannot replace it, because it would be contrary to the essence of arbitration, would render its existence aimless, and would be contrary to the autonomy of the will of the parties who have submitted their dispute to the jurisdiction of an arbitral tribunal, resigning from the jurisdiction of a state court.

4. Violation by an arbitral tribunal of substantive law provisions, i.e. an incorrect interpretation or misapplication thereof does not per se constitute a violation of the rule of law… .

5. It is impossible to draw from the assumption that the provisions on limitation of claims serve the purpose of certainty of the conduct of legal transactions and such a certainty is within the interest of the legal order in general, a conclusion that the set of rules governing limitation of claims constitutes, as a whole, a part of the fundamental principles of the legal order and any misinterpretation thereof leads to a contradiction with the ordre public clause.

6. Violation of a mandatorily binding provision is not … tantamount to a violation of the fundamental principles of the legal order… .

7. [I]n proceedings regarding an arbitration award, the state court is not authorized to make an assessment whether the claim has been time-barred, if this has been assessed by the arbitral tribunal.

8. [G]ross disregard of the principles of interpretation of declarations of will indicated in Art.  65 of the Polish Civil Code may constitute a basis for a petition to set aside an arbitration award, if the arbitral tribunal finds that the evidence relied on to prove the parties’ intention was irrelevant and conducts only an analysis of the wording of the contract, because materialization of the principle of the autonomy of the will of the parties is not possible without the application of the appropriate criteria of assessment of declarations of will made by the parties… . However, the review of the interpretation of declarations of will of the parties made by an arbitral tribunal, in case of properly conducted evidence proceedings, cannot be subject to review in the course of proceedings initiated by a petition to set aside an arbitration award.

9. The inability to abandon a comprehensive clarification of the circumstances of the case shall be understood primarily as an obligation to conduct arbitration proceedings in a way which enables the parties to submit all statements and evidence and – under the principle of their equal treatment – to respond to the statements and evidence submitted by the opposing party. The requirements for conducting evidence proceedings by an arbitral tribunal cannot be stricter than those applicable to a state court, all the more so that an arbitral tribunal does not dispose of coercive measures which are often necessary for effective examination of evidence. The audi alterem partem principle and the availability principle apply also in arbitration. An arbitral tribunal cannot take into account facts not indicated by the parties or apply the presumption of truthfulness of the claimant’s allegations in the event of the claimant’s failure to appear at the hearing, or deem undisputed facts to be true… .

10. [T]he matter of correct application of intertemporal norms per se does not constitute a violation of the public policy clause… .

11. [T]he mere issue of the interest rate cannot constitute a violation of the public policy clause.

12. [E]xamining evidence in the form of documents contained in the arbitration files is not a sine qua non condition of assessment of allegations raised in a petition to set aside an arbitration award… . The need to request such files shall be assessed in the circumstances of a particular case.

13. Hearing a petition to set aside an arbitration award, the state court does not have an obligation to conduct evidence proceedings ex officio… .

1. In the course of proceedings initiated by a petition to set aside an arbitration award, the role of a state court is not to examine the compliance of the arbitration award with the substantive law applicable to the case. The task of the state court is only to examine whether in the case a statutory ground for setting aside of the arbitration award exists… . Control exercised over arbitration by a state court is not tantamount to resolution of a case ex novo, either on the factual or on the legal plane. The circumstances indicated in Art. 1206 § 1 of the PCPC are examined by the state court hearing the petition to set aside an arbitration award only if the petitioner relies on them, and the circumstances provided for in Art. 1206 § 2 of the PCPC are examined ex officio… .

2. An arbitration award shall be set aside under the public policy clause, if violation of the substantive law by the arbitral tribunal leads to consequences irreconcilable with the fundamental principles of the Polish legal system, that is, effects that are plainly and grossly contrary to such principles or to any one of them… .

3. [T]he principle of the autonomous will of the parties is one of the fundamental legal principles of the legal order of the Republic of Poland… .

4. The public policy clause, like any general clause, is not precisely defined, which leaves great discretion to the court ruling on a specific case… . The application of the public policy clause remains in an inseparable relationship with the totality of circumstances of a particular case in close connection with the concrete factual state.

5. The public policy clause is… the only prerequisite for setting aside of an arbitration award enabling the state court to review the arbitration award on the merits. Nevertheless, on the basis of this clause, review of the constitutive elements of an arbitration award may not take on the dimensions proper for a review of the merits (correctness) of the award. The prohibition of a review of the merits of an award is related to the essence of the application of the public policy clause. By application of this clause, the point is not to determine whether the award is consistent with all relevant mandatorily applicable legal regulations, but only to determine whether the award effected a result contrary to the fundamental principles of the domestic legal order… . So only in the situation when the assessment made by the state court that the effects of the arbitration award are plainly and grossly contrary to the fundamental principles of the legal order of the Republic of Poland, it is possible to find a cassation appeal based on the allegation of violation of Art. 1206 § 2 point 2 of the PCPC to be well-founded.

6. [T]here is a great deal of autonomy in arbitration, which is entirely consistent with the intentions of the lawmaker, distinctly limiting the review capabilities of a state court. The fundamental objective of this regulation is to expedite the procedure for resolving civil disputes, and not to create an additional phase of pre-judicial procedure . Parties deciding to submit a dispute to arbitration must take these conditions into account, which also include scant external review of arbitration awards… .

7. It is not unreasonable to state that by concluding an arbitration agreement, parties limit their constitutional right to court (Art. 45 (1) of the Constitution of the Republic of Poland).

8. Deprivation of the right to defense shall be understood strictly. A party is deprived of the ability to defend its rights, if an arbitral tribunal gives this party no opportunity to provide explanations and statements with reference to the claims of the opposing party. If the arbitral tribunal ignores evidence offered by a party because it deems the evidence redundant, it shall not be considered that that party has been deprived of the right to defense. State court review as to whether the arbitral tribunal correctly found evidence to be redundant would constitute an impermissible intrusion into the merits of the case. If the arbitral tribunal disregards a certain portion of the defense submitted by a party, presenting in the reasoning of the award a substantive explanation of the reasons why it has considered the defense irrelevant, the allegation of a party that the arbitral tribunal has omitted its defense is in fact directed against the substantive defense of the dispute and is, as such, inadmissible… .

9. An arbitral tribunal, not being bound by the regulations on proceedings before a state court (Art. 1184 § 2 sentence 2 of the PCPC), has greater freedom to direct the course of the proceedings, including also – to decide on the relevance and purposefulness of examining specific evidence.

10. [T]he provision of Art. 387 § 2¹ of the PCPC, and all the more so of Art. 328 § 2 of the PCPC (cf. Art. 391 § 1 of the PCPC), according to Art. 1207 § 2 of the PCPC, apply only “as relevant” in proceedings before the state court hearing a petition to set aside an arbitration award. It means that the application of this provision must take into account the specificity of arbitration proceedings.

11. The state court hearing a petition to set aside an arbitration award shall not make factual findings, potentially, with the exception of those which are necessary to assess whether there are grounds for setting aside the arbitration award (for example, regarding the notice to a party on appointment of an arbitrator or on arbitration proceedings – Art. 1206 § 1 point 2 of the PCPC). As a consequence, the requirement of “indicating a factual basis” resulting from Art. 328 § 2 of the PCPC in connection with Art. 391 § 1 of the PCPC and Art. 387 § 2¹ of the PCPC cannot apply, as a matter of principle, to the reasoning of a judgment regarding a petition to set aside an arbitration award (Art. 1207 § 2 of the PCPC).

1. The grounds of a petition to set aside an arbitration award have been divided in Art. 1206 of the PCPC into two categories, to which the prerequisites set out in § 1 and § 2 of this provision correspond. In case of the grounds indicated in § 1, the state court shall take them into account only upon request of a party, so it is bound by the grounds relied upon by the petitioner. The grounds indicated in § 2 shall be taken into account ex officio.

2. The public policy clause…, like any general clause is not precisely defined and does not include an exhaustive list of principles. Therefore in each case it is necessary to consider whether the circumstances make it possible to draw the conclusion that a violation was in breach of principles that are the fundamental principles of the legal order. Pursuant to the public policy clause expressed in Art. 1206 § 2 of the PCPC, an arbitration award shall be set aside when effects determined by its content are irreconcilable with the particular norm which is one of the fundamental principles of that order, which leaves a great degree of discretion to the state court ruling in a given case.

3. [A]n arbitration award shall correspond to the wording of the statement of claim. Depending on the content of the claim, an arbitration award may establish, rule on, or shape a right or a legal relationship.

4. [A]lthough Art. 1188 § 1 of the PCPC does not indicate obligatory elements of a statement of claim in arbitration, including the exact wording of the claim…, nonetheless the necessity to specify the claim, as the element determining the subject matter of arbitration, may be derived indirectly from Art. 1202 first sentence of the PCPC; it may also be derived from the procedural rules agreed upon by the parties or defined in the rules of arbitration. Irrespective of the above, this does not mean, however, that going beyond the limits of a claim by an arbitral tribunal evades the state court review.

5. [T]he audi alterem partem principle is the fundamental principle of the legal order. The audi alterem partem principle means the parties’ right to conduct a dispute in a way designated by them and shifts to them the burden of gathering factual and evidentiary material which is necessary to resolve a case.

1. One of the fundamental principles of the legal order, provided for in Art. 45 (1) of the Constitution of the Republic of Poland, is the right to court, an element of which is a party’s right to have its case heard by an independent court, in a fairly conducted procedure. The indicated principle of the legal order applies to all court proceedings, including arbitration proceedings.

2. In the light of Art. 1173 § 1 of the PCPC, an arbitrator shall be an independent and impartial person. … . This refers to the absence of such relations between an arbitrator and parties to a dispute which could affect the content of the award.

3. [I]t is indicated in the case law that it is only exceptionally permissible to invoke circumstances previously known to a party concerning an arbitrator and to invoke non-operation of the preclusion of the grounds for exclusion of the arbitrator in a situation when it comes to the circumstances of such a kind in which the arbitrator’s participation in rendering an award by an arbitral tribunal could be found to be justifying that the award is contrary to the fundamental principles of the public policy… .

1. The essence of arbitration consists of three principles: (i) the non-state character of arbitration, (ii) joint will of the parties as the source of jurisdiction to resolve the dispute and (iii) equating the legal force of an arbitration award with the legal force of a state court judgment.

2. A state court ruling on recognition or enforcement of an arbitration award results in ascribing to the award the same force that rulings of state courts have, which is clearly confirmed by Art. 1212 § 1 of the PCPC. Such an award, thanks to the state court ruling connected with it, must be treated in legal dealings the same as any other ruling of a state court, i.a. it has all the features indicated in Art. 365 § 1 of the PCPC.

3. The purpose of proceedings initiated by a petition to set aside an arbitration award is only to verify the petitioner’s pleadings presented in the petition as to existence of the grounds referred to in Art. 1206 § 1 of the PCPC, and to assess if any of the prerequisites referred to in Art. 1206 § 2 of the PCPC exist.

4. [T]he validity and efficiency of an arbitration agreement shall be determined by the law in force at the time when the arbitration agreement was concluded… .

5. The agreement [arbitration agreement – insertion added] does not identify individual parties to the dispute, but the legal relationship or the object of a dispute, therefore certain claims (receivables), as a result of the arbitration agreement, have such a feature that disputes concerning them shall be resolved by an arbitral tribunal.

6. If a given legal relationship has been submitted to arbitration, the arbitral tribunal retains its jurisdiction to resolve the case, however, as a result of the assignment, the assignor, as a matter of principle, loses the ability to dispose of the claim in the substantive-law sense, in fact loses its ability to settle.

7. The public policy clause covers both the procedural and the substantive fundamental principles of the legal order. Procedural public policy may be a ground for assessing an arbitration award in two aspects. First, the procedure which led to rendering of the arbitration award is assessed for its compliance with the fundamental principles of the legal order, second, the effects of the arbitration award are assessed from the perspective of their consistency with the procedural public policy, i.e. whether they are reconcilable with the system of procedural law. On the other hand, a violation by an arbitral tribunal of the substantive law applicable to the resolution of the legal relationship from which the dispute referred to arbitration arose, legitimates setting aside of the award, only if it is connected with a violation of the fundamental principles of the legal order. At the same time, in the event of non-compliance of an award with the fundamental principles of the legal order, the question is not whether the award is compliant with all absolutely binding provisions of law, but whether the award has had an effect which is irreconcilable with the fundamental principles of the state legal order… .

8. The principle of interpretation of declarations of will is covered by the public policy clause. … The principle of freedom of contracts is also one of the fundamental principles of the substantive legal public policy.

1. [T]he fundamental principles of the legal order are the constitutional principles and the principles of other fields of law including civil, family, labour and procedural law. However, it cannot be assumed that an arbitration award violates the rule of law only on the basis of the arbitration award not being complaint with, for example, certain provisions of substantive law… .

2. Depriving a party of the ability to defend its rights before an arbitral tribunal occurs, if the arbitral tribunal fails to notify the party of the date of the hearing after which the award is announced, if it does not hear out a party at all or fails to give a party the opportunity to submit statements with respect to the matter in dispute, if the principle of equal treatment of the parties or the right of the party to be heard and submit evidence is infringed, if a party is prevented from getting familiar with the opposing party’s position, evidence submitted by the opposing party, if a party is prevented from addressing them, if a party is prevented from presenting and proving their arguments… . A party is no deprived of its defences, if evidence offered by that party is not admitted or examined… .  

3. The petitioner had… at least 3 weeks to authorize a new attorney [in the arbitration proceedings in the case – insertion added]. The fact that it decided to do so only one day before the hearing… cannot be a basis for setting aside of the arbitration award.

4. [A]pplication of Art. 1193 of the PCPC cannot be limited to shortcomings which took place in the course of arbitration proceedings, it should also cover the activities taken at the stage of appointment of the arbitrator, including at the stage of the petition set out in Art. 1206 § 1 point 2 of the PCPC submitted due to violation of the principles of arbitrator appointment.

5. [I]f, during the examination of a case by an arbitral tribunal, a party represented by a professional attorney took part in the activities of the arbitral tribunal and did not demonstrate at that time any procedural violations which were indicated by this party in the petition to set aside the arbitration award as the grounds for setting aside of the arbitration award indicated in Art. 1206 § 1 point 4 of the PCPC, the recourse to a procedural defect identified in such a way cannot take effect… .

6. In connection with the above, in the assessment of the Court of Appeal hearing the case, there are no grounds to find that the disputed arbitration award… violates the fundamental principles of the legal order of the Republic of Poland. In particular, this cannot be demonstrated by the circumstance, relied upon by the petitioner, that the Court of Arbitration recognized the activities of advocate R. D. taken before initiation of the arbitration proceedings to be the activities of an attorney-in-fact, in the situation when in the files of the case there was no power of attorney for an attorney-in-fact, granted to advocate R. D. by the petitioner, which would specify the scope of authorization of the attorney.    

7. [P]roceedings initiated by a petition to set aside an arbitration award do not lead to a substantive re-examination of the dispute between the parties, but their purpose is to verify the petitioner’s pleadings presented in the petition as to existence of the grounds referred to in Art. 1206 § 1 of the PCPC, and to assess if any of the conditions referred to in Art. 1206 § 2 of the PCPC exist, regardless of whether the petitioner relied thereon… .

8. [I]t cannot be accepted that an arbitration award violates the public policy clause solely on the ground that the award is not consistent with certain provisions of substantive law… .

9. A party cannot effectively raise [in the proceedings initiated by a petition to set aside an arbitration award – insertion added] that the composition of the arbitral tribunal was incorrect when during the proceedings before such a tribunal the party did request that a particular arbitrator be excluded… .

1. The deformalized character of arbitration manifests itself both in the manner in which a hearing is conducted, as well as in more liberal procedural rules than before a state court. What is especially important, the speed of the arbitration procedure is increased not only by the manner in which proceedings before an arbitral tribunal are conducted, but also by the limitation of judicial review of arbitration awards.

2. The fact that not all arguments and evidence were deemed by the arbitral tribunal well-founded and sufficiently significant for the outcome of the case does not mean that a party has been deprived of the possibility to defend its rights or that the principle of equality of the parties has been violated. For these reasons, every instance in which an arbitral tribunal refuses to admit evidence sought by a party cannot be equated with that party being deprived of the right to a defence… . It should be emphasized that in arbitration proceedings, an arbitral tribunal has… the right to disregard evidence motions of the parties, if the tribunal finds they are not necessary to examine the case… .

3. Setting aside of an arbitration award is justified… only by such an offence to the substantive law that it would also bring the ruling into conflict with the overriding legal principles in force in the Republic of Poland. In other words, an arbitration award may be unlawful if it results in a ruling that violates the controlling principles of the rule of law… .

4. According to the well-established case law, state court review of arbitration awards does not include the verification of the accuracy of determination of the factual state. Different perception of state court jurisdiction would lead to contestation of the independence of arbitration, distorting not only the concepts underlying its functioning, but also the intention of the lawmaker, who has limited the scope of interference of state courts to exceptional circumstances, expressly indicated in the Act. 

1. The essence of the petition to set aside an arbitration award is to create a review mechanism respecting, on the one hand, the separateness and autonomy of arbitration, and on the other hand, preventing non-state court rulings violating the rule of law from functioning in the legal circulation. Proceedings initiated by a petition to set aside an arbitration award do not result in reconsideration of the merits of the dispute between the parties, but are intended only at verification of the petitioner’s allegations as to the existence of the grounds raised in the petition, as provided for in Art. 1206 § 1 of the PCPC. The aim of the petition is to prevent an arbitration award that is non-compliant the elementary formal requirements of dispute resolution from remaining in the legal circulation… .

2. [The legal doctrine – insertion added] raises that the possibility of conducting arbitration proceedings [before the Internet Domains Arbitration Court at the Polish Chamber of Information Technology and Telecommunications – insertion added] is not excluded by the fact that after filing of the lawsuit, in order to avoid liability for infringements, the content of the website in the disputed domain has been changed in a way which does not allow to determine whether there is an infringement of a third party’s rights at the time.

3. Purposive, functional and comparative interpretation confirms that Art. 2 of the Arbitration Rules of the Internet Domains Arbitration Court at the Polish Chamber of Information Technology and Telecommunications should be interpreted in such a way that the jurisdiction of the Arbitration Court includes examining of legal effects connected with the fact of registration, as well as the effects of registration occurring after the conclusion of the domain maintenance contract, with the proviso that the way in which the domain is used, not the mere fact of registration, usually allows for the assessment whether there has been such an infringement… .

4. The public policy clause covers both the procedural and substantive fundamental principles of the legal order. Procedural public policy may be a ground for assessing an arbitration award in two aspects. First, the procedure which led to rendering of an arbitration award is assessed for its compliance with the fundamental principles of the legal order, second, the effects of the arbitration award are assessed from the perspective of their consistency with the procedural public policy, i.e. whether they are reconcilable with the system of procedural law.

5. [A]rbitration awards after their recognition or enforcement enjoy also the substantive legal finality within the meaning of Art. 365 and 366 of the PCPC… .

6. Submission of a dispute existing between the parties to arbitration does not justify the conclusion that the parties have resigned from the right to reliable and insightful procedure ensuring the possibility of satisfaction of the legal interest of the parties that deserves to be protected.

1. [I]n the proceedings commenced as a result of a petition to set aside an arbitration award, a state court does not examine the arbitral tribunal’s assessment off the accuracy of evidence, the correctness of factual findings or interpretation and application of substantive law. The legitimacy of particular means by way of which an arbitral tribunal has resolved the disputed legal relationship is not subject to a state court’s assessment either. The essence of a petition to set aside an arbitration award is to create a control mechanism respecting, on the one hand, the separateness and autonomy of arbitration, and on the other hand, preventing non-state court rulings infringing the rule of law from functioning in the legal circulation. Proceedings concerning a petition to set aside an arbitration award do not result in reconsideration of the merits of the dispute between the parties, but are intended only to verify the petitioner’s allegations as to the existence of the grounds raised in the petition, as provided for in Art. 1206 § 1 of the PCPC. The aim of the petition is to prevent only an arbitration award which fails to comply with the elementary formal requirements of dispute resolution from remaining in the legal circulation.

2. The grounds resulting from Art. 1206 § 2 point 2 of the PCPC are legitimate, if the effect of an arbitration award is contrary to the fundamental principles of the legal order of the Republic of Poland. (…) The fundamental principles of the legal order which are the basis for assessment of an arbitration award shall be understood not only as constitutional rules, but also as ground rules in particular areas of law, and examination of a case with respect to the ground for setting aside of an award under Art. 1206 § 2 point 2 PCPC shall not go beyond a qualified infringement of law. The public policy clause covers both the procedural and substantive fundamental principles of the legal order. Procedural public policy may be a ground for assessing an arbitration award in two aspects. First, the procedure which led to issuance of an arbitration award is assessed for its compliance with the fundamental procedural principles of the legal order. Second, the effects of the arbitration award are assessed from the perspective of their consistency with the procedural public policy, i.e. whether they are reconcilable with the system of procedural law. Then, an infringement by an arbitral tribunal of the substantive law applicable to the resolution of the legal relationship from which the dispute referred to arbitration arose, legitimates setting aside of the award, only if it is connected with an infringement of the fundamental principles of the legal order. Simultaneously, in the event of a lack of compliance of an award with the fundamental principles of the legal order, the question is not whether the award is compliant with all absolutely binding provisions of law, but whether the award has had an effect which is irreconcilable with the fundamental principles of the state legal order (…). Indeed, the application of the public policy clause does not serve to remove all irregularities and defects of arbitration awards, but is intended to protect the integrity of the public policy.

3. The right to a fair trial is a pillar of a democratic state of law and for this reason its infringement justifies the conclusion that the rule of law has been infringed. (…) such a situation will occur especially in the event of non-consideration of a set-off allegation raised by a party. The principle of the fair trial dictates consideration of a set-off allegation properly raised by the respondent.

4. [T]he Arbitral Tribunal erroneously refused to hear the set-off allegation, because the mere fact of the respondent’s liability not being covered by the arbitration agreement is not an obstacle to consider such an allegation.

1. The essence of arbitration is the autonomy and freedom of action of the parties and an arbitration tribunal is not bound by the provisions of the Polish Civil Procedure Code on proceedings before a state court (Art. 1184 § 2 of the Polish Civil Procedure Code). It is only bound by the mandatory provisions of the Polish Civil Procedure Code which regulate the arbitration procedure (…).

2. The scope of the final resolution by an arbitration tribunal of a submitted claim shall result from the conclusion of the arbitration award and cannot be derived from the statement of reasons (…).

3. [T]he basis in Art. 1206 § 2 point 2 of the Polish Civil Procedure Code is justified, if the effect of an arbitration award is contrary to the fundamental principles of the legal order of the state. These shall be understood not only as constitutional norms of fundamental importance, but also as the ground rules governing particular areas of substantive and procedural law.

4. A court, in proceedings to set aside an arbitration award, cannot resolve a dispute between the parties of arbitration proceedings as to the merits. Consequently, the court cannot examine, whether the arbitration award is not contrary to substantive law and whether this award is based on the facts given in its statement of reasons and whether these facts have been properly established.

5. The principle of the binding force of final court rulings (Art. 365 § 1 of the Polish Civil Procedure Code) as an element of the values protected constitutionally and in the international order is a part of the fundamental principles of the legal order of the Republic of Poland. This rule also applies to arbitration awards after their recognition or enforcement by a state court. Such an award, thanks to the state court judgment related to it, has the same legal effect as a court judgment (Art. 1212 § 1 of the Polish Civil Procedure Code) (…).

6. A state court shall not allow two rulings between the same parties whose enforcement is guaranteed by the state, but which would resolve the same issue differently, to be present in the legal system, since this would undermine the authority of the justice system and the confidence in the courts, colliding with the principle of the stability of final rulings and the principle of legal certainty (…).

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. 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.    

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.

1. [B]y entering into an arbitration agreement, the parties consciously waived submission to the strictures in place for the proceedings before a state court, including some procedural guarantees in such proceedings. Therefore, it is not unreasonable to state that by concluding an arbitration agreement, the parties limit their constitutional right to court. When deciding to submit a dispute for resolution by an arbitral tribunal, the parties must be aware of both positive and negative effects of including particular statements in an arbitration agreement.

2. Unlike a state court, an arbitral tribunal considering cases does not need to strictly apply the provisions of substantive law, but may also base its ruling on principles of equity or rule on the basis of general principles of law. Consequently, review by the state court of awards made by arbitral tribunals is limited to the instances strictly defined by the law … .

3. [E]xamination of a case with respect to the grounds for setting aside an arbitration award under Art. 1206 § 2 of the Polish Civil Procedure Code may not proceed beyond aggravated violations of law, and the parties cannot challenge an arbitration award when such an award was delivered after properly conducted proceedings, but does not satisfy their expectations. A petition is possible only when it has been demonstrated that an arbitration award violates the fundamental principles of the Polish legal order … .

4. [P]ursuant to Art. 1197 § 2 of the PCPC, an arbitration award shall contain the reasons for the award, but this does not mean, however, that the reasoning shall be constructed strictly according to the rules indicated in Art. 328 § 2 of the PCPC … . This follows from the character of the proceedings before an arbitral tribunal, which are not as formalized as the proceedings in civil procedure. Without any doubt, however, the grounds of an arbitration award should be clear and reflect a reasoning analyzable in terms of the grounds to dismiss the petition … .

1. The scope of a state court’s review and its determinations are limited to allegations raised in a petition to set aside an arbitration award. A state court has the authority only to review whether the reasons for setting aside of an award are present (…) and only in this limited scope the proceedings are similar to the proceedings before a state court of II instance.

2. [I]f a party had the possibility to raise before an arbitral tribunal an allegation of being deprived of the right to protect their rights, but they did not do that, it is inadmissible to raise a plea that the party was deprived of the ability to protect their rights before the arbitral tribunal in view of the party not being actually deprived of the ability to protect their rights.

3. [I]n the proceedings commenced as a result of a petition to set aside an arbitration award, a state court does not examine the arbitral tribunal’s assessment of the accuracy of evidence, the correctness of factual findings or interpretation and application of substantive law. The legitimacy of particular means by way of which an arbitral tribunal has resolved the disputed legal relationship is neither subject to a state court’s assessment (…). The essence of a petition to set aside an arbitration award is to create a control mechanism respecting, on the one hand, separateness and autonomy of arbitration, and on the other hand, preventing non-state courts’ rulings infringing the rule of law from functioning in the legal circulation.

4. Competence of the court hearing a petition to set aside an arbitration award does not – as a matter of principle – include the control of the award’s compliance with substantive law and review of correctness of factual findings, except for ruling based on obviously selective and unreliable examination of evidence.

5. [T]he proceedings concerning a petition to set aside an arbitration award do not result in reconsideration of the merits of the dispute between the parties, but are intended only to verify the applicant’s allegations as to the existence of the grounds raised in the application provided for in Art. 1206 § 1 of the PCPC and assess whether any of the prerequisites provided for in Art. 1206 § 2 of the PCPC exist, whether or not asserted by the applicant.

6. “The public policy clause”, like any general clause, is not precisely defined, which leaves great discretion to the court ruling on a specific case. Nevertheless, on the basis of this clause, review of the constitutive elements of an arbitration award may not take on the dimensions proper for a review of the merits (correctness) of the award. The prohibition of a review of the merits of an award is related to the essence of the application of the public policy clause. By application of this clause, the point is not to determine whether the award is consistent with all relevant mandatorily applicable legal regulations, but only to determine whether the award effected a result contrary to the fundamental principles of the domestic legal order (…).

7. In the case-law, it is indicated that an infringement, by an arbitral tribunal, of substantive law applicable to the resolved relationship, compliance with which – as a matter of principle – is prescribed in Art. 1194 § 1 of the PCPC, may result in setting aside of an award of this tribunal only when it is connected with an infringement of the fundamental principles of the legal order (…). The primary difference between proceedings commenced by an appeal and proceedings commenced by a petition to set aside an arbitration award is demonstrated by the permitted scope of interference of a state court in the rulings of arbitral tribunals.

According to Art. 1207 § 1 and 2 of the Polish Civil Procedure Code, Art. 368 of the Polish Civil Procedure Code shall apply accordingly to a petition to set aside an arbitral award, and the provisions on appeal shall apply accordingly to the petition to set aside an arbitral award.

1. Relying on objective illegality of actions of the other party to an agreement and possible concurrent grounds of liability does not override the competence of an arbitral tribunal.

2. [A]n arbitration award may be assessed in the context of procedural public order. Subject to assessment is the compliance with the fundamental procedural principles of legal order of procedure that have led to the delivery of the arbitration award (…).

3. An allegation of infringement of Art. 1183 of the Polish Civil Procedure Code may be justified, if an arbitral tribunal conducts proceedings in omission of evidence offered by a party, but only if this evidence was necessary to resolve the case (…).

4. The control of elements comprising an arbitration award cannot be of the same scope as substantive control (of validity) of such an award.

5. When hearing a case, an arbitral tribunal may be guided by legal intuition, and it does not need to – unlike a state court – strictly apply the provisions of substantive law, but may base its ruling also on the principles of equity or good faith. According to the public policy clause expressed in Art. 1206 § 2 point 2 of the Polish Civil Procedure Code, an arbitration award shall be set aside when effects determined by the award are incompatible with a specific norm which is one of the fundamental principles of this public policy (…).

6. The arbitration award that protects one of the partners encumbered with the contractual risk of failure of the business venture does not infringe upon trading certainty and the principle of trading security, in the situation when the investor (the Fund) could limit its own economic risk resulting from engagement of funds by correct, consistent with the agreement, and, above all, loyal conduct.

7. Application of the public policy clause is not aimed at verification whether the assessed arbitration award id compliant with all applicable absolutely binding provisions of law, but whether effects of such an award are contrary to the fundamental principles of national legal order.

1. The mere potential option of setting aside of a judgment dismissing a petition to set aside an arbitration award is not a ground for ex officio suspending of the proceedings initiated by a request for enforcement of the arbitration award. This could only happen at the joint request of the parties (Art. 178 of the PCPC)… .

2. A party relying on… a document as evidence in a case, should… take into account that such evidence may be used by the arbitral tribunal in order to determine the factual state or to interpret the declarations of will of the parties.

3. When it decided to rely in the arbitration proceedings on the agreement of 29 October 2014, the party relying on the agreement had to reckon with the fact that this agreement could be used by the arbitral tribunal also to its disadvantage.

4. The said agreement… The contractual provision contained therein that “the agreement may be disclosed to the Court of Arbitration in the necessary scope, but the agreement shall not be used as evidence to the advantage of any party or as a basis for interpretation of any contractual provision of the contract”… did not establish a fundamental principle of procedure that would be binding for the arbitral tribunal. The prohibition to use this document as evidence was binding only for the parties to the contract. Evidentiary agreements are not known in the Polish civil procedure. It is difficult to accept that the parties could, by means of an agreement, exclude procedural provisions relating to evidence prohibition, and with a binding effect for the court at that, with the exceptions resulting from legal regulations. Relying by a party on the agreement… as evidence in the case could be alternatively assessed as contractual disloyalty of the parties… .

5. Pursuant to Art. 1217 of the PCPC, in proceedings for enforcement of an arbitration award issued in the Republic of Poland, the court shall not examine the circumstances referred to in Art. 1214 § 3 of the PCPC (identical to those set out in Art. 1206 § 2 of the PCPC), if a petition to set aside the arbitration award was denied with legal finality. The provision of Article 1217 of the PCPC provides for a binding effect of a final judgment dismissing a petition to set aside an arbitration award other than in relation to a legal relationship (resulting from Article 365 of the PCPC). It follows from Art. 1217 of the PCPC that the state court is bound by the determination regarding admissibility of the arbitration award, and that the arbitration award is not contrary to the public policy clause, therefore the state court does not examine these issues after the petition to set aside the arbitration award was denied with legal finality.

6. [A]rt. 1210 of the PCPC. According thereto, at a closed session, a court may stay the enforcement of an arbitration award, but may condition the stay on submission of a security. It cannot be overlooked that this provision forms a part of the regulation of the proceedings initiated by a petition to set aside an arbitration award (title VII in part five in book four of the Polish Civil Procedure Code – Art. 1205-1211 of the PCPC), and its object is the stay of enforcement of an arbitration award. It does not constitute a ground for staying other rulings.

7. [I]n the present legal state, the only basis for lodging a complaint regarding the appellate court order on enforcement of an arbitration award issued in the Republic of Poland is Art. 1214 § 4 of the PCPC.

1. The phrase “fundamental principles of the legal order” used in Art. 1206 §2(2) of the Civil Procedure Code refers to such a violation of provisions of substantive law that will result in violation of the principles of the rule of law, and the award infringes the overriding legal principles in force in the Republic of Poland and conflicts with the legal order, that is, it violates principles of the political and socioeconomic system.

2. The evaluation conducted in the specific case as to whether the ruling violates fundamental principles of the legal order must be made cautiously, and the wording used in the code should be interpreted narrowly.

3. When deciding to include an arbitration clause in a contract, the parties to a civil relationship consciously waive the formal protection provided to the participants in a judicial trial by various provisions of the Civil Procedure Code…. Consequently, they also agree to procedural conditions that are subject to significant autonomy in the course of the arbitration proceeding, leading to minimal external oversight of awards by the arbitral tribunal….

4. Procedural public policy may also be grounds for review of an arbitration award, in two aspects: the evaluation of the consistency of the procedure leading to issuance of the ruling by the tribunal with the fundamental procedural principles of the legal order, and the effects of such ruling from the point of view of their compliance with procedural public policy, that is, whether they can be reconciled with the system of procedural law.

5. The notion of the “grounds” [for an award] within the meaning of Art. 1197 §2 of the Civil Procedure Code does not literally mean “justification” [of a judgment] within the meaning of the Civil Procedure Code, and this provision deliberately uses the word “grounds” and not “justification.” However, the grounds must contain the elements of reasoning of the arbitral tribunal which demonstrate the correctness (soundness) of the ruling in light of the entirety of the material gathered in the case.

6. Conduct of a fair proceeding is the task of both the state court and the arbitral tribunal. That the arbitral tribunal is not bound by regulations of procedure before a state court and under the Civil Procedure Code itself establishes the rules and method of proceeding before it, as agreed by the parties and as it deems proper, does not mean arbitrariness with respect to the principles of judicial civil procedure of an adversarial nature.

1. A petition to set aside an arbitration award is not… an ordinary legal remedy (for example, an appeal) whereupon a court may reassess the merits of the case and the accuracy of the resolution of a dispute by the arbitral tribunal on the merits. Therefore the lawmaker… specified strictly defined grounds for a petition only. However, the lawmaker also specified … that only two circumstances may be taken into account ex officio, namely, that the dispute could not be resolved by the arbitral tribunal or that the arbitration award is contrary to the fundamental principles of the legal order of the Republic of Poland.

2. Experiences connected with the application of the public policy clause in international civil proceedings and private international law may be used by interpretation of the public policy clause… .

3. [I]f an arbitration award is contrary to the public policy of the Republic of Poland, this does not mean that such an award could be contrary to any of the principles of the state legal order, but that it is contrary only to the fundamental principles of the legal order of the Republic of Poland, i.e. constitutional standards, but also standards resulting from labour law, family law or procedural civil law… . Therefore, the concept of public policy is a concept narrower than the concept of the rule of law which entails the obligation to apply, in principle, all legal standards, including absolutely binding legal standards. The following principles have deemed by the doctrine to be the fundamental principles of legal order in terms of civil procedure: the principle of equal treatment of the parties to arbitration, or in terms of substantive law: the principle of freedom of the contract, the pacta sunt servanda principle.

4. It needs to be borne in mind that an arbitral tribunal enjoys much greater freedom in terms of conducting proceedings, including evidence proceedings, than a state court does. According to Art. 328 § 2 of the PCPC, reasoning of a state court’s judgment shall provide the factual basis for the ruling… However, pursuant to Art. 1197 § 2 of the PCPC, an arbitration award must only contain the reasons for the award… . Indication of the reasons which the arbitral tribunal relied upon by delivery of an award does not have to comply with the requirements of state court proceedings. In particular, an arbitral tribunal is not obliged to indicate the factual basis for its award. However, it must result from the reasoning on what facts the arbitral tribunal relied upon and which circumstances it considered necessary to resolve the dispute.

5. [T]he character of arbitration proceedings makes it possible to apply the rules indicated in Art. 322 of the PCPC.

6. The limits of the discretion of an arbitral tribunal in conducting evidentiary proceedings are determined by the requirements of thorough examination of the circumstances essential to resolve the dispute and of equal treatment of the parties to arbitration. Depriving a party of the opportunity to defend its rights should be interpreted narrowly. Arbitral tribunal’s rejection of evidence offered by a party because it finds the evidence unnecessary does not constitute depriving the party of an opportunity of a defense.

7. An arbitral tribunal has, like any other court, the power to assess a contract in terms of whether specific rights and obligations arise out of the provisions of the contract for one or both parties. If the assessment made in this respect, taking into account the joint intention of the parties and the purpose of the contract, is based on evidence gathered in the case, including the hearing of the parties, an assessment unfavourable to one of the parties cannot be regarded as a violation of the fundamental public policy principle.

8. The fundamental principles of the legal order include, among other things, the principle of civil liability for the damage caused…, the principle of the restitutive nature of liability for damages… .

1. The rules of evidence assessment provided for in Division III Chapter 1 of the PCPC, including Art. 233 of the PCPC – are not binding in arbitration proceedings, where the principle is that the parties themselves agree on the rules and the manner of conducting of the proceedings, and in the event no such arrangements have been made – the arbitral tribunal conducts the proceedings in a manner it considers appropriate (Art. 1184 of the PCPC).

2. [A] state court hearing a petition to set aside an arbitration award does not examine whether the award is based on the factual material of the case (unless the arbitration award is completely detached from it, but such a situation did not take place in the case) and does not review the correctness of the factual findings made by the arbitral tribunal, which are in principle binding, insofar as there had been no grounds for setting aside an arbitration award indicated in the petition. As regards the assessment whether an arbitration award is contrary to the fundamental principles of the legal order, which is a prerequisite of setting aside of an arbitration award provided for in Art. 1206 § 2 point 2 of the PCPC, such an assessment must take into account the content of the award, and not the correctness of the arbitration procedure.

3. The fundamental principles of the legal order being the basis of assessment of an arbitration award shall be understood as constitutional standards, but also as ground principles in particular fields of law. However, in all cases, these are supreme standards of a fundamental character. Pursuant to the public policy clause expressed in Art. 1206 § 2 point 2 of the PCPC, an arbitration award shall be set aside when effects determined by its content are irreconcilable with a particular standard being one of the fundamental principles of that legal order… .

4. Partial (or full) satisfaction of a claim covered by the  award of the Court of Arbitration is not a statutory ground indicated in Art. 1206 of the PCPC for setting aside of an arbitration award.

1. An allegation regarding shortcomings in the appointment of the arbitrator is inextricably linked with a violation of the rules of the procedure before an arbitral tribunal, including also… an infringement of equality of the parties in the proceedings.

2. Article 1193 of the PCPC expressly stipulates that there is a preclusion of allegations regarding a violation of relatively binding provisions or rules of procedure established by the parties themselves, including the rules contained in the Arbitration Rules.

3. Arbitral tribunal’s conduct of the proceedings in disregard of the evidence offered by a party may justify an allegation of violation of Art. 1183 of the PCPC, if the evidence was necessary for the resolution of the case.

4. Lack of… evidential initiative, despite the motions submitted by both parties regarding the appointment of another expert witness by the Arbitral Tribunal, needs to be assessed as a failure to examine the merits of the case and such an activity constitutes, undoubtedly, a violation of the fundamental principles of the legal order of the Republic of Poland… . As it is indicated in the doctrine, also a violation of fundamental, prime principles of procedure constitutes a violation of the fundamental principles of the legal order… .

5. [T]he contract, according to which all disputes related to or arising out of the contract or performance of works, whether during the performance of the works or after their completion, whether before the refusal to perform them or another interruption of the contract or after, including disputes regarding an opinion, an instruction, a finding, a certificate or an assessment made by the engineer are subject to arbitration… Such provisions containing an arbitration agreement… shall be treated broadly, as they cover not only the contractual claims sought directly under the contract, but also claims sought on other legal grounds, including unjust enrichment or compensation for the injury caused.

6. [I]f the Republic of Poland was the place of arbitration and the case was heard there and the final award was delivered by the Court of Arbitration, Art. 1205 § 1 of the PCPC, which justifies jurisdiction of the Polish court to consider a petition to set aside an arbitration award, shall apply… .

1. Under Civil Procedure Code Art. 1183, “In a proceeding before the arbitral tribunal the parties shall be treated equally. Each party shall have the right to be heard and to present its arguments and evidence in support thereof.” Thus, in light of this requirement of Polish law, it should be recognized that the principle of equality of the parties is an overriding principle of civil procedure, even if not expressly addressed in any other provision of the Civil Procedure Code.

2. Impartiality is maintained when the arbitrator maintains the same distance in relation to each of the parties, is neutral, does not show favour, and also does not discriminate against either of the parties and is not prejudiced against any of the parties. These circumstances involving the failure to maintain impartiality by the arbitrator deciding the case are relevant under the grounds for setting aside an arbitration award. And thus, lack of impartiality of the arbitrator is the basis for an allegation of violation of the fundamental principles of procedure before the arbitral tribunal, as well as an allegation of inconsistency with fundamental principles of the legal order of the Republic of Poland (Civil Procedure Code Art. 1206 §1(4) and 1206 §2(2)).

3. The debtor of an attached claim should tender performance to the creditor. Fulfilment of such performance results in extinguishment of the debt to the original creditor. It is irrelevant whether this performance occurred outside a judicial enforcement proceeding or during the course of such proceeding as a result of measures taken by the court bailiff. Thus including such claim in an arbitration award violated a fundamental principle of the public policy of the Republic of Poland.

1. [W]hen examining the grounds and prerequisites provided for in Art. 1206 § 1 point 4 of the PCPC, the failure to comply with the requirements with regard to the fundamental rules of procedure before an arbitral tribunal, arising under statute or specified by the parties, is of significant character. One of these principles is to base an award on the established factual state, which takes place after hearing of evidence. In this place it should be noted that an arbitrator’s (arbitral tribunal’s) freedom in assessment of the relevance of given evidence or statements for establishment of the factual state and rendering of an award is proportionately broader than the freedom referred to in Art. 233 § 1 of the PCPC, and a court “reviews” an arbitration award only with reference to the “fundamental rules” of procedure before an arbitral tribunal. Thus, only if a state court finds that hearing of evidence by an arbitral tribunal has not been conducted at all, or has been incomplete or obviously faulty, in breach of the principles of logical reasoning, of linking facts together in a cause-and-effect chain, of selective admission of evidence in the case, or that evidence of only one party has been examined in groundless omission of the evidence requested by the other party etc., it is possible to find that the requirements set out in Art. 1206 § 1 point 4 of the PCPC had not been met.

2. According to the established case law of the Polish Supreme Court developed against the background of the interpretation of Art. 328 § 2 of the PCPC, which in fact refers to reasonings of state courts, and which may be auxiliarily and accordingly applied also to assess the legitimacy of a party’s claim regarding an arbitration award, successful reliance on this plea requires a party to demonstrate that the reasoning of the ruling subject to instance review is so inherently flawed that it does not contain information which would allow the court of higher instance to carry out such a review. So it should be deemed that an infringement of this provision in a way affecting the outcome of the case is present, if the reasoning of a ruling is so flawed that it is not possible to determine, basing on an analysis of the content thereof, whether substantive law and procedural law were correctly applied by the court… .

3. [A]n arbitration award shall be set aside under the public policy clause if violation of the substantive law by the arbitral tribunal results in consequences irreconcilable with the fundamental principles of the Polish legal system, i.e. effects that are plainly and grossly contrary to such principles – at least one of them… .

4. The public policy clause, like any general clause, is not precisely defined, which leaves a great deal of discretion to the court recognising a given case, nevertheless, on the basis of this clause the review of constitutive elements of an arbitration award may not take on the dimensions proper for a review of the merits (correctness) of an award. The prohibition of a review of the merits (correctness) of an award is related to the essence of application of the public policy clause. In applying this clause, the point is not to determine whether an award is consistent with all relevant mandatorily applicable regulations of law, but to determine whether the award has had an effect contrary to the fundamental principles of the domestic legal order. The concept and meaning of the public policy clause, as a not being precisely defined, is subject to interpretation.

5. The fundamental principles of the legal order of the Republic of Poland include, for example, the right to court, understood as the right to have a case heard by an independent court in a fairly conducted procedure; a duty to redress loss by the party to a contract that failed to perform or improperly performed its obligation, if there is an ordinary causal link between the party’s actions and the loss; the principles that damages are due only when the aggrieved party has suffered a loss, the principle of economic freedom and the freedom of contracts, as well as the principles of autonomy of the will of the parties and equality of the parties; the pacta sunt servanda principle and the principle of contractual fairness; as well as the principle of compensatory character of liability, expressed in the prohibition of introducing sanctions in the form of pecuniary performances enriching one of the parties; the principle of the binding force of final court rulings; the obligation to specify the essentialia negotii of a contract in the contract. It was indicated in the case law that an infringement of the public policy clause may also constitute an obvious inconsistency of an arbitration award with the factual state… .

6. [T]he mere misinterpretation of substantive law made by the Arbitral Tribunal is not equivalent to an infringement of the rule of law and only such a misinterpretation may be a ground for finding a petition to set aside an arbitration award to be well-founded, as infringement of substantive law entails contradiction with the fundamental principles of the public order… .

1. Initiation of the proceedings to set aside an arbitration award is effected by filing of a petition and the ending of the proceedings to set aside an arbitration award means delivery of a ruling ending the proceedings in a given instance or another ruling permanently preventing the delivery of a ruling … .

2. A petition to set aside an arbitration award is not an appellate instrument, but a type of extraordinary judicial review by the state court over the activity of an arbitral tribunal. It follows that in the proceedings to set aside an arbitration award a state court cannot consider a dispute between the parties to the arbitration proceedings on the merits … . Despite introduction of Art. 1207 § 2 of the Polish Civil Procedure Code, in proceedings to set aside an arbitration award, the court of appeal exercises the control functions in a different sense – it does not rule on the merits of the case resolved by an arbitral tribunal, but it decides only whether the indicated grounds for setting aside an arbitration award exist. Therefore, many provisions concerning the appeal cannot apply at all, others seldom can apply directly … .

3. On the basis of the public policy clause expressed in Art. 1206 § 2 point 2 of the Polish Civil Procedure Code an arbitration award should be … set aside when effects determined by the award are incompatible with a specific norm which is one of the fundamental principles of this public policy. The public policy clause, like any general clause, is indefinite, which leaves to the court considering a specific case a great degree of discretion, nonetheless, review on this basis of the elements comprising the ruling of an arbitral tribunal cannot take the dimensions proper for a review of the merits (correctness) of the ruling … .

4. The autonomous position of arbitration as an alternative to the state courts means that the parties to arbitration must expect that review of the arbitral tribunal’s resolution by the state court does not and must not constitute the equivalent of appellate review typical for the state court system. Such review … must serve first and foremost to eliminate abuses of arbitration and the most far-reaching violations, relevant not only from the perspective of the parties, but also for the legal system in general … .

5. [I]t is deemed that even a misinterpretation of substantive law does not of itself result in an arbitral award being set aside as contrary to the public policy clause … .

6. [A]n arbitration agreement should be interpreted restrictively.

7. A different outcome of the assessment of the evidence than proposed by a party is not a violation of the rules of procedure before an arbitral tribunal.

1. [T]he proceedings before an arbitral tribunal do not have to consist of two instances. It depends only on the choice of the parties. So unless the parties agree otherwise, the proceedings before an arbitral tribunal consist of one instance (…).

2. [A]n arbitration award issued in the Republic of Poland may be set aside by a state court solely in proceedings initiated by filing of a petition to set aside the award. Therefore, it is not possible to control other verdicts of an arbitral tribunal, unless a special provision provides otherwise (…).

3. [O]nly such absolutely binding norms (…) which are deemed to be of fundamental (special) importance in a particular legal order, may justify a reference to the public policy clause. After all, application of the public policy clause is not intended to correct all shortcomings of an arbitration award. This results from the autonomy granted to arbitration. Certainly, a wrong settlement of the case in terms of facts or law is generally not sufficient to consider that an arbitration award is contrary to public policy clause. A state court is not entitled to examine the substantive legitimacy of an arbitration award.

4. [A]rt. 123 of the Polish Civil Code shall not be considered as a fundamental (basic) norm of the legal order. (…). Therefore, a possible infringement of Art. 123 of the Polish Civil Code cannot constitute an effective basis for a petition to set aside an arbitration award.

1. Art. 1206 of the PCPC stipulates grounds for a petition to set aside an arbitration award and this enumeration is of exhaustive character … . A state court hearing a petition is in principle bound by the grounds cited by the petitioner, however, the grounds for setting aside an award indicated in Art. 1206 § 2 of the PCPC shall be examined ex officio.

2. [A] petition [to set aside an arbitration award] is of quashing nature, as a state court can only set aside the arbitration award in full, in part or reject the petition, but the state court cannot rule on the merits of the case.

3. According to Art. 1207 of the PCPC, Art. 368 of the PCPC shall apply accordingly to a petition to set aside an arbitration award and the provisions governing an appeal shall apply accordingly to a petition to set aside an arbitration award, unless otherwise provided therein.

4. The assessment of whether an arbitration award violates the fundamental principles of the legal order should be thus conducted on a case-by-case basis, narrowly, and an affirmative conclusion may be reached only if the effects of the arbitration award would result in a material violation of the aforementioned principles. However, it should be emphasized that there is a great deal of autonomy of arbitration, essentially limiting the possibilities for review by the state court.

5. In the case law, the fundamental principles of the legal order include, among other things: the principle of civil liability for the injury caused …, the principle of the restitutive nature of liability for damages …, the pacta sunt servanda principle …, the principle of business freedom and freedom of contract, the principle of contractual fairness …, the principle of protection of property rights …, the principle of the autonomy of the will of the parties and the equality of entities … . The aforementioned enumeration is, naturally, only of an exemplary character, because the assessment regarding inconsistency of an arbitration award with the fundamental principles of legal order may be determined based on the analysis of a given case, however, with the proviso that it must be a discrepancy of obvious, general and fundamental character, i.e. a discrepancy which is incompatible with the principles of a democratic state of law, when an arbitration award infringes the governing legal principles in force in the Republic of Poland.

6. [P]ursuant to Art. 1197 § 2 of the PCPC, an arbitration award shall contain the reasons for the award, but this does not mean, however, that the reasoning shall be constructed strictly according to the rules indicated in Art. 328 of the PCPC, which stipulates necessary elements of the state court reasoning. This follows from the character of arbitration proceedings, which are not as formalized as civil law proceedings. However, without any doubt, the grounds of an arbitration award should be clear and reflect a reasoning analyzable in terms of the grounds to reject the petition, but in the properly formulated reasoning an arbitral tribunal is not obliged to refer to all the arguments and arguments presented by a party at any stage of the arbitration proceedings and in any form … . It is sufficient for the arbitral tribunal to consider all factual circumstances and arguments of a judicial nature, significant from the point of view of the award and the examined legal relationship.

7. The circumstance … that not all arguments and evidence were deemed well-founded and sufficiently significant for the outcome of the arbitral award does not mean that a party has been deprived of the possibility to defend its rights or that the principle of equality has been infringed.

8. [I]n arbitration proceedings, the tribunal may also disregard evidence motions of the parties, if the tribunal finds they are not necessary to examine the case or examination of the evidence encounters significant obstacles … .

1. [T]here is a great deal of autonomy in arbitration procedure, which is entirely consistent with the intentions of the lawmaker, distinctly limiting the review capabilities of a state court. The basic goal of this law is the rapidity of the procedure for resolving civil-law disputes, and not creation of an additional phase of pre-litigation proceedings. Parties deciding to submit a dispute to arbitration must take these conditions into account, which also include scant external review of arbitration awards.

2. [P]arties limit their constitutional right to court on their own by entering into an arbitration agreement … .

3. [A]n arbitration award may be set aside only on the grounds listed in Art. 1206 of the Polish Civil Procedure Code.

4. The arbitration tribunal’s violation of the substantive law governing the case, which is generally connected with Art. 1194 § 1 of the Polish Civil Procedure Code, is subject to review by the state court considering a petition to set aside an arbitration award only in terms of application of the public policy clause – ex officio or on the basis of a petition. Mere misinterpretation of the substantive law or misapplication thereof by the arbitral tribunal does not justify upholding of the petition. Infringement of the substantive law shall constitute a basis for setting aside of an arbitration award only insofar as its effects are contrary to the fundamental principles of the legal order. … interpretation of this term shall be restrictive and, as it is argued in the case law …, an assessment made ad casum whether an award violates the fundamental principles of the legal order should be made with caution.

5. Procedural public order may be a ground for assessing of an arbitration award in two aspects. First, the procedure which led to issuance of the arbitration award is assessed for its compliance with fundamental principles of the legal order. Second, the effects of the arbitration award are assessed from the perspective of their consistency with procedural public order, i.e. whether they are reconcilable with the system of procedural law, for example, whether they do not violate the principle of res iudicata or the rights of third parties.

6. In the case law, the fundamental principles of the legal order in terms of substantive law include, among other things: the principle of civil liability for the injury caused …, the principle of the restitutive nature of liability for damages …, the pacta sunt servanda principle …, the principle of business freedom and freedom of contract, the principle of contractual fairness …, the principle of protection of property rights …, the principle of the autonomy of the will of the parties and the equality of entities … .

7. Depriving a party of the possibility to defend its rights, within the meaning of Art. 1206 § 1 point 2 of the Polish Civil Procedure Code shall be equated with the party being objectively prevented from taking such actions which in fact change its procedural position … . A party is deprived of the possibility to take actions only when it was completely deprived of the possibility to defend its rights, i.e. when it was in a situation which prevented, and not only impeded or restricted, the pursuit of the claims before the tribunal … . The assessment whether a party was deprived of the possibility to defend its rights should be made in the light of specific circumstances of the case and the analysis whether a party was deprived of the possibility to take actions should start from consideration, whether procedural provisions were infringed and then it should be determined whether the infringement affected the party’s ability to take actions in the proceedings; finally, it should be assessed if despite these circumstances the party could defend its rights in the legal proceedings. When all these prerequisites are fulfilled cumulatively, it should be assumed that the party was deprived of the possibility to take actions … .  

8. The public policy clause, like any general clause, is not precisely defined, which leaves a great deal of discretion to the court adjudicating a given case, but nonetheless on the basis of this clause, the review of constitutive elements of an arbitration award may not take on the dimensions proper to a review of the merits (correctness) of an award. The prohibition of a review of the merits (correctness) of an award is tied to the essence of application of the public policy clause. In applying the clause, the point is not to determine whether an award is consistent with all relevant mandatorily applicable regulations of law, but only to determine whether the award has had an effect contrary to the fundamental principles of the domestic legal order … .

1. Between the arbitral tribunal ruling again on the basis of the same arbitration clause (Civil Procedure Code Art. 1211) following setting aside of the previous award under Civil Procedure Code Art. 1205 et seq., and the court that granted the application to set aside the award, there is not a relation analogous to that between the courts of first and second instance in the structure of the state courts. The Civil Procedure Code does not adopt the construction encountered in some legal systems in which a state court granting an application to set aside an arbitration award can remand the case to the arbitral tribunal for reconsideration. The arbitrators’ duties generally last until issuance of the arbitration award (Civil Procedure Code Art. 1199); granting of the application results in setting aside the award, while the further proceedings depend on the decisions of the parties, provided however that the arbitration clause remains in force unless the parties agreed otherwise (Civil Procedure Code Art. 1211). A consequence of this is that there is no room for the arbitral tribunal to be bound by the legal evaluation or directions as to the further proceedings, in line with the rule adopted in Civil Procedure Code Art. 386 §6, and this state of affairs was not changed by the amendment of Civil Procedure Code Art. 1207 made by the Act of 10 September 2015 Amending Certain Acts to Support Amicable Dispute Resolution Methods (Journal of Laws Dz.U. 2015 item 1595), calling for application by analogy of regulations on appeals in proceedings on an application to set aside an arbitration award.

2. The fact that the legal evaluation is not binding as it would be in the model of appellate review does not mean that the findings and legal views expressed in the judgment of the state court granting an application to set aside an arbitration award are irrelevant to the arbitral tribunal considering the case anew; the arbitral tribunal must take the judgment into account and draw the relevant conclusions from it within its general obligation to seek an award that will not be subject to being set aside pursuant to review by the state court. The possibility of indirectly instructing the arbitral tribunal by the court considering an application to set aside an arbitration award is provided for only in Civil Procedure Code Art. 1209, but this provision is exceptional, and considering the autonomy of arbitration it cannot serve as the source of generalizations.

3. Guided by the assumption of the complementarity and equal importance of both aspects of substantive legal finality, as well as purposive considerations, the position should be approved that [Civil Procedure Code Art. 1206 §1(6)] also covers the case where an arbitration award is issued in violation of the binding legal finality of a court judgment. Leaving aside the question of whether in this state of affairs the conflict between the arbitration award and the judgment of a state court can be reviewed pursuant to the public policy clause or must be pleaded in the grounds for cassation as a violation of Civil Procedure Code Art. 1206 §1(6), such a conflict can be said to exist only when the arbitration award substantially interferes with the findings covered by the binding force of the state court judgment.

4. Submission of a case to the jurisdiction of an arbitration court removes the dispute between the parties from the jurisdiction of the state courts. The competence of the arbitral tribunal in this respect is not merely in the nature of a preliminary jurisdiction; to the contrary, pursuant to the parties’ intentions, the arbitral tribunal takes the place of the state court with the purpose of independent and complete resolution of the dispute between the parties. The autonomous position of arbitration as an alternative to the state courts means that the parties to the arbitration must expect that review of the arbitral tribunal’s resolution by the state court does not, and must not, constitute the equivalent of appellate review typical for the state court system. Such review, while necessary and universal in a comparative-law context, must serve first and foremost to eliminate abuses of arbitration and the most far-reaching violations, relevant not only from the perspective of the parties but also for the legal system in general.

5. The nature of the review exercised by the state courts over rulings by arbitral tribunals means that a possible error in interpretation of substantive law cannot per se lead to setting aside the arbitration award, unless the error would result in violation of a fundamental principle of the legal order.

6. One element of public policy is the general assumption of the need for stability of long-term states of facts, while the consequences of application of regulations realizing this assumption in specific situations essentially affect the individual interests of the parties, and possible errors in this respect are generally errors in interpretation, escaping the review of the state courts. This is how the view already expressed in the case law of the Supreme Court that an erroneous interpretation of regulations on the limitation on claims does not make an arbitration award inconsistent with fundamental principles of the legal order, should be understood.

7. Violation of a regulation of mandatory applicability is not tantamount to violation of fundamental principles of the legal order.

1. [T]he principle of hearing a case by an independent, impartial and unbiased court applies to every judicial proceedings, also before arbitral tribunals, which are treated as courts of trust. … . Lack of impartiality renders an arbitration award contrary to the principles of public policy.

2. The public policy clause, like any general clause, is indeterminate, which leaves a court seized of a particular case a wide range of discretion, nonetheless, review on this basis of the elements comprising a ruling of an arbitral tribunal cannot take dimensions proper for a review of the merits (correctness) of the ruling. The prohibition of the review of the merits (correctness) of such ruling is connected with the essence of application of the public policy clause. When the clause is used, it is not the point that the awards which is subject to the assessment must be consistent with all relevant absolutely binding provisions of law. The point is whether the award has had an effect contrary to the fundamental principles of the national legal order.

3. [T]he phrase “fundamental principles of legal order” used in Art. 1206 § 2 of the Polish Civil Procedure Code refers to such a violation of provisions of substantive law that results in violation of the principles of the rule of law, and the award infringes the overriding legal principles in force in the Republic of Poland and conflicts with the legal order, that is, it violates the principles of the political and socioeconomic system.

4. Determination of whether an arbitration award violates fundamental principles of public order must be formulated narrowly … .

5. Procedural public policy may be grounds for assessing an arbitration award in two aspects. First, the procedure which led to issuance of the arbitration award is assessed for its compliance with the fundamental procedural principles of the legal order. Second, the effects of the arbitration award are assessed from the perspective of their consistency with the procedural public policy i.e. whether they are reconcilable with the system of procedural law, e.g. whether they violate the principles of res iudicata or the rights of third parties … .

6. [T]here is a great deal of autonomy in arbitration procedure, entirely consistent with the intention of the lawmaker, distinctly limiting the availability of review by the state court … . Parties who decide to submit a dispute to an arbitral tribunal must thus be aware of such conditions, including also of minimal external review of arbitration awards … .

1. A petition [to set aside an arbitration award] in the current shape, maintaining its distinct character with all its limitations, in particular concerning the grounds of the petition, is similar to an appeal. If a petition is well-founded, a state court may only revoke an arbitration award, which does not lead to expiration of the arbitration agreement (Art. 1211 of the PCPC) and should not be treated as consideration of the merits of the case submitted to arbitration. A ruling of a state court frustrates the effects of an arbitration award if any of the grounds indicated in Art. 1206 of the PCPC occurred, however, a ruling of a state court does not resolve, as a matter of principle, the legal dispute between the parties which was referred to arbitration with the exception of determining that an arbitration agreement does not exist, is invalid, ineffective or lost its legal power according to the applicable law.

2. Commencement of proceedings to remove an arbitrator before the conclusion of the proceedings before an arbitral tribunal results in the proceedings regulated in Art. 1176 of the PCPC being the proper procedure to consider the application and the assessment whether there were grounds to remove an arbitrator. However, in the situation of conclusion of proceedings before an arbitral tribunal, the only way to challenge the composition of the arbitral tribunal delivering the award in the case are proceedings initiated by a petition to set aside an arbitration award.

3. In evaluating whether an arbitration award in inconsistent with the fundamental principles of the legal order, the content of the award should be considered, and not the correctness of the procedure before the arbitral tribunal or the correctness of the composition thereof.

4. Because of the fact that the relationships between the arbitral tribunal and the claimant are of institutional and permanent character and the mere arbitration agreement concerns purely and simply one relevant arbitral tribunal, it should be deemed consequently that the arbitration agreement of such content is at least ineffective, i.e. it does not bring any legal effects. It is also reasonable to assume that the arbitration agreement is invalid because the dispute cannot be adjudicated by the indicated arbitral tribunal, i.e. the arbitration award has no relevant content.

Filing of a petition to set aside an arbitration award is an action immediately aimed at enforcement of a claim and consequently interrupts the running of the statute of limitations on the claim.

1. The set of fundamental principles of procedure before the arbitral tribunal includes only the rules arising under the Civil Procedure Code and the rules agreed by the parties, which does not include the custom [under §9(3) of the Code of Best Practice for Permanent Arbitration Courts, providing that a party applying for default appointment of an arbitrator subject to nomination by both parties or by the previously appointed arbitrators should notify the appointment authority of all candidacies considered and rejected by the parties or the arbitrators and none of those persons should be appointed in the default procedure].

2. The legal classification of a contract by the arbitral tribunal is not subject to review on a petition to set aside an arbitration award.

1. The Polish Civil Procedure Code in Art. 1157 enables the parties to subject to arbitration certain categories of disputes. The provisions of part five of this Code and any other regulations contained in the procedural act do not indicate, however, that this type of examination of civil law cases is treated by the legislator as either being better or worse than judicial proceedings. To the contrary, it should be assumed that it is of equal character and it should be treated in the same way.

2. Therefore, by rejecting the strict (restrictive), and conversely, extended interpretation, which would be aimed at maintaining the jurisdiction of the arbitration tribunal at all costs, the arbitration agreement should be interpreted in a way that shall ensure finding of the joint will of the parties and respecting thereof.

3. To use arbitration as a method of dispute resolution, it is essential for the parties to conclude a special agreement – an arbitration agreement (…), in which they shall indicate the subject of the dispute or the legal relationship under which the dispute has arisen or may arise. This minimum content specified by the legislator is both necessary and at the same time sufficient, because in the absence of other provisions, the relevant provisions of the Polish Civil Procedure Code apply, which have enabled both appointment of an arbitration tribunal as well as conduct of arbitration proceedings and issue of an award.

4. Apart from the minimum content, an arbitration agreement may also contain additional provisions (Art. 1161 § 2 of the Polish Civil Procedure Code) by means of which the parties may shape the arbitration procedure according to their expectations and needs. Including in an arbitration agreement of such additional provisions (exceeding the statutory minimum) is always voluntary and is not necessary to have a case heard by arbitrators. So, if the parties had made additional arrangements and included them in the arbitration agreement, these arrangements cannot be treated as meaningless, quite to the contrary, they should be given the meaning resulting from the will of the parties.

5. Regulation of certain issues relating to the arbitration procedure in the broad sense in an arbitration agreement is an expression of the autonomy of the will of the parties and demonstrates unequivocally that the intention of the parties was not to subject their dispute to arbitrators, but to subject it on the terms and conditions specified by the parties. Moreover, it is justified to argue that since the content of the arbitration agreement was agreed upon by the parties, their consent to arbitration was conditional upon inclusion of certain provisions in the arbitration agreement.

6. An arbitration agreement is not only the source of judicial power of arbitrators (along with the relevant basis resulting from the statutory law, but also delimits this power (which an arbitration court cannot exceed) and the way of its exercise. Consequently, arbitrators must, by default, know the content of the arbitration agreement and should conduct proceedings in such a way that the will of the parties disclosed in the arbitration agreement is respected to the fullest extent possible.

7. [W]hen the parties include specific provisions in an arbitration agreement, they must be aware of their meaning and consequences which these provisions may have. When the parties include in an arbitration agreement a relatively short time limit for issue of an award, they should be aware that compliance with this time limit may be difficult or even impossible.

8. From the fact that the arbitrators did not comply with the provisions of the arbitration agreement and adopted a manner of proceeding which in advance excluded keeping the time limit specified in the arbitration agreement, under no circumstances can it be inferred what the original will of the parties was. Arbitrators are obliged to comply with the provisions of the arbitration agreement and they should be aware that failure to comply with the will of the parties expressed in the arbitration agreement may consequently result in setting aside of their award.

1. An arbitration clause, which is an agreement to submit a dispute to an arbitration court for resolution, may be limited in time; that is, it may be in force only until a certain time, at the end of which it ceases to be in force; it may also be made under a condition applicable to the clause itself or the manner of proceeding and resolution by the arbitral tribunal.

2. Civil Procedure Code Art. 1168 governs situations in which the arbitration clause may cease to be in force (if the parties have not agreed on other legal consequences of events covered by the clause). The list set forth in this provision is therefore only exemplary, and the parties may also indicate other situations which will result in expiration (loss of force) of the arbitration clause. This is not changed by the fact that the current law does not regulate the loss of force of an arbitration clause in a situation where the time agreed by the parties in which the arbitral tribunal was required to issue an award expired, because the parties can provide otherwise. In the case considered here, the contractual specification of the deadline for completion of the proceeding before the arbitral tribunal with an award exerts the effect of expiration of the arbitration clause. Therefore this is not an instructive deadline whose only purpose was to encourage all of the participants in the arbitration proceeding, including also the arbitral tribunal, to seek a quick and effective resolution of the dispute.

3. Even when specifying its own rules for proceeding before the arbitral tribunal, the arbitral tribunal is not authorized to modify the mutual position of the parties with respect to the deadline set by them for resolution of the case. Such modification may be made by the parties themselves, but not by the arbitral tribunal.

4. In the event of doubt with respect to the scope of the arbitration clause, a restrictive interpretation should prevail. In interpreting the arbitration clause, it is not permissible to employ any presumptions which would indicate broader application of the arbitration clause. The declarations of will in the arbitration clause may not be supplemented by way of interpretation to include further external elements, events or occurrences.

1. Parties who have submitted a dispute to a permanent arbitration court for resolution in accordance with its rules may in provisions accompanying the arbitration clause or by later agreement modify the provisions of the rules. … Acceptance by the permanent arbitration court (or its authorities) of changes to the rules made by the parties is another issue. The arbitration court may consent to conduct the proceeding in compliance with the rules as modified by the parties, or not accept the changes. However, if it does not accept the changes, the permanent arbitration court can only refuse to accept the case for consideration (Civil Procedure Code Art. 1168 §2), but it cannot conduct the proceeding according to the rules in the version that does not reflect the changes made by the parties if they refuse to give up those changes. If the permanent arbitration court has accepted the case for consideration, then it is required to respect the intent of the parties as manifest in the changes they have made to the rules of the arbitration court.

2. The priority of the intent of the parties over the rules of the permanent arbitration court applies as well when the parties have agreed that the arbitration proceeding is to include two instances, while the rules provide that the proceeding has one instance.

3. If the parties agree that the proceeding before the arbitration court is to include more than one instance (Civil Procedure Code Art. 1205 §2), then the arbitration regulations of the Civil Procedure Code and the principles and rules resulting therefrom also apply to the appellate arbitral tribunal, including establishment of the rules and manner of proceeding before that tribunal and ruling by that tribunal.

4. The rule specified by the parties that the arbitration proceeding is to include the possibility of appealing against the arbitration award issued at the first instance undoubtedly falls within the group of fundamental rules for purposes of Civil Procedure Code Art. 1206 §1(4). Violation of that rule by resolving the dispute at only one instance is a violation that could affect the result in the case, because the appeal could result in a different resolution.

5. Under the circumstances of the case, there was a violation of Civil Procedure Code Art. 1206 §1(4) by considering the dispute and issuing an arbitration award at only one instance, contrary to the rule agreed by the parties of arbitration proceedings at two instances.

1. It is permissible to seek to set aside an arbitration award in part, if the challenged resolution can be separated from the remaining part of the award.

2. In a proceeding to set aside an arbitration award, the court cannot set aside the award in part if the petitioner applied to set aside the award in its entirety and there are grounds to grant the petition. This is because a demand to set aside an arbitration award in part is not a lesser included demand in a demand to set aside the award in its entirety; it is a different type of demand. Moreover, if the particular parts of the award interlock so that none of the parts can be separated from the other parts without materially deforming the entirety, it is impermissible to set aside the award in part.

3. Informing a party only in the justification of the award that (despite denying the claim in its entirety) one of the party’s demands was not considered because the fee for that claim was not paid, when that demand was the subject of examination during the evidentiary proceeding and was the subject of the response to the statement of claim and pleadings by both parties, while at the same time granting the demands of the opposing party in their entirety, which resolution was dependent on the resolution of the plaintiff’s demands, indicates that the arbitration award is contrary to the public policy clause, depriving the party of the ability to exercise the rights provided by regulations of substantive law and also indirectly depriving the party of a defence against the counterclaims of the opposing party. This method of proceeding before the arbitration court violates the party’s right to a fair and honest trial.

4. Resolving the respondent’s demands in their entirety before resolving the claimant’s complete demand, regardless of whether or not the party could apply for supplementation of the award, is also contrary to fundamental principles of the legal order, including violation of the principle of equal treatment of the parties. Moreover, the arbitration court would already be bound by the award issued by it in the part concerning the counterclaim, and thus it could not issue a ruling with different substantive legal consequences. Undoubtedly the principles of a fair trial require that the party be informed prior to issuance of an award of the possible taking of a procedural decision as to one of the party’s claims, regardless of whether the claimant’s claim is deemed to be an alternative claim (as it was worded, in the event that the main claim is not upheld) or as a separate procedural claim in an accumulation of claims.

5. The defence of the ineffectiveness of an arbitration clause may be asserted not only by the respondent, but also by the claimant. However, it is indicated in the legal literature that in such case, the claimant, as the party initiating the proceeding before the arbitration court, should make a thorough analysis of the factual and legal state of the case, including issues connected with the grounds for commencement of the proceeding before the arbitration court, and if it concludes that the clause is ineffective, it should file the case with the state court, which upon the objection of the respondent will resolve the issue of the effectiveness of the clause. As indicated in the literature, asserting the ineffectiveness of the clause only at this stage violates the principle of due diligence which a professional participant in commercial dealings is required to comply with.

6. An arbitration clause may cease to be in force in the instances set forth in Civil Procedure Code Art. 1168 and 1195 §4 or in the bankruptcy law, or in the occurrence of certain substantive legal events (e.g. repudiation of the legal consequences of a declaration of will), including those indicated by the parties as the reasons for the clause ceasing to be in force. The mere change in the rules of the arbitration court does not result in loss of force of the clause, either under the regulations currently in force or in accordance with the regulations in force on the date of conclusion of the clause.

7. The mere fact that one of the parties to the arbitration participated in creation of the list of arbitrators by nominating candidates for arbitrators from among persons who are authorities in the given field does not mean that there is dependency between the arbitrator and the party or that the party has greater rights. Despite the indirect influence of the banks over a portion of some panels of arbitrators, the rules of the Court of Arbitration at [the Polish Bank Association] ensure the impartially of the arbitration court and do not violate the principle of the equality of the parties in the arbitration proceeding. Because there are numerous arbitrators [on the list], and the party does not know which of them will hear the case and does not select a specific person as presiding arbitrator, it cannot be found that the party had greater rights than its opponent.

8. A petition to set aside an arbitration award may concern issues of the procedure followed only if fundamental principles of procedure before the arbitration court, arising out of a statute or specified by the parties, were not complied with (Civil Procedure Code Art. 1206 §1(4)). In essence this has to do with failure to comply with fundamental principles of civil procedure, but it was not demonstrated that the arbitration court failed to comply with such principles.

1. A petition to set aside an arbitration award is an extraordinary measure of judicial review by the state court of the activity of the arbitration court. It is a special legal measure combining the features of extraordinary review (against an arbitration award that is legally final, at least formally) and a claim seeking to modify the legal status brought about by the arbitration award. However, it is not an appellate measure, and the state court reviewing the petition generally will not examine the resolution of the arbitration court on the merits, and in particular will not review whether there is a foundation for the award under the cited facts or whether the facts were properly established.

2. Civil Procedure Code Art. 1206 §1(4) refers to the fundamental rules of procedure before the arbitration court, which should be understood as limiting the possibility to set aside an arbitration award only to those instances which resulted in violation of the principles of a fair trial or procedural violations important enough that they could have influenced the arbitration award, for example violation of the principle of the equality of the parties, or a complete failure to admit evidence. This situation did not occur in the proceeding before the arbitration court, as the objection by the petition referred to the arbitrators’ failure to comply with the 30-day limit for closing the proceeding in the case, late issuance of the award and service on the petitioner, and failure to comply with informational obligations with respect to the petitioner.

3. Fundamental principles of the legal order should be understood as fundamental constitutional principles concerning the socio-economic system, as well as the leading principles governing specific areas of substantive and procedural law. Thus only norms that are mandatorily binding and to which fundamental importance is ascribed may justify reliance on the public policy clause. This clause is not applied to correct all irregularities and defects in arbitration awards, but should protect the integrity of public policy.

1. [I]n case of an ad hoc arbitral tribunal, there is no requirement that the same panel of arbitrators has to consider all cases arising out of a specific legal relationship. Under one contract – if the parties have different claims, there is no obstacle for each claim to be examined by different arbitrators, for example due to the fact that they can specialize in different categories of cases or have the expertise necessary to properly assess only one of the claims. It should be emphasized that a specific agreement (so-called receptum arbitrii) is concluded between a person entitled to appoint an arbitrator and the arbitrator. Such an agreement bounds each of the arbitrators with both parties and obliges: the arbitrators to resolve the dispute impartially and the parties to pay the remuneration… . A person appointed to be an arbitrator is not obliged to accept the position of the arbitrator. Since it is an agreement, both the person entitled to appoint an arbitrator and the appointed arbitrator need to know the scope of the agreement – in this case, the subject of the dispute.

2. There is a dispute in the doctrine of civil law as to what character – procedural or substantive – the choice of arbitrators has. The Court of Appeal shared the view that it is only a substantive legal statement. This character of the statement is not only supported by the fact that it is a part of a civil law agreement, but also by the specific limitation of the possibility of its revocation. Currently, both the doctrine and the case law provide that procedural statements are revocable by nature and substantive elements are revocable only when relevant statutory prerequisites exist. In the situation of appointment of an arbitrator, the law-maker in a significant way, by enumeration in the statutory law, has limited a party’s unilateral right to remove an arbitrator once selected by the party. It is commonly accepted that Art. 61 of the Polish Civil Code applies to this statement, i.e. a norm reserved for substantive law statements. The lack of a substantive law power of attorney and the lack of confirmation of this activity by the company being the respondent results in the statement not having the expected legal effects, i.e. it does not lead to appointment of an arbitrator or conclusion of an agreement between the parties and the person appointed to be an arbitrator.

3. [A]n arbitration award may be said to be contrary to the fundamental principles of the legal order only with respect to constitutional principles of the socio-economic system or the fundamental principles governing specific fields of substantive law. The fundamental principles of the legal order being the basis of an assessment of an arbitration award shall be understood not only as constitutional norms, but also as ground norms in particular fields of law. It has been recognized in the case law that such principles include, among other things, the principle of economic freedom and freedom of contracts…, the principle of the autonomy of the will of the parties and the equality of the parties and the principle of social justice… .

4.  [T]he procedural public policy may be the basis for assessment of an arbitration award in two aspects. Firstly, the procedure which led to the delivery of an arbitration award is assessed for its compliance with the fundamental procedural principles of the legal order, secondly, the effects of the arbitration award are assessed from the perspective of their consistency with the procedural public policy, i.e. whether they are compatible with the procedural legal system, for example, whether they do not infringe res iudicata or the rights of third parties.

5. The public policy clause is not intended for a review of the merits (correctness) of an arbitration award. The prohibition of a review of the merits of an arbitration award is related to the essence of the application of the public policy clause. By application of this clause, the point is not to determine whether the award is consistent with all relevant mandatorily applicable legal regulations, but only to determine whether the award effected a result contrary to the fundamental principles of the domestic legal order.

6. A violation, by an arbitral tribunal, of substantive law applicable to the considered relationship, compliance with which is prescribed in Art. 1194 § 1 of the PCPC, may result in setting aside of an award of this tribunal only when it is connected with an infringement of the fundamental principles of the legal order.

7. An allegation of infringement of Art. 1183 of the PCPC may be justified when an arbitral tribunal conducts proceedings in omission of evidence offered by a party, if this evidence was necessary to resolve the case.

1. The fact that two arbitrators, constituting a majority of the panel, had already signed drafts of the awards was certainly not valid grounds for the presiding arbitrator to refuse to continue deliberations over the awards. This was not equivalent to the act of voting, not to mention equivalent to deliberations on the resolution and the grounds for the resolution. Refusal to continue the deliberations in order to discuss the comments means that it cannot be said that the deliberations were completed and voting was held on the awards. … As pointed out in the legal literature, the list of examples of violations with respect to regulations on voting, removal of an arbitrator and the award which were set forth in Civil Procedure Code Art. 712 §1(3) (in force through 16 October 2005) were not expressly carried over to the wording of Civil Procedure Code Art. 1206 §1(4). There is no doubt, however, that a violation of these rules should generally be treated as a violation of fundamental rules of procedure.

2. Ignoring evidence offered by a party because the arbitration court found the evidence to be unnecessary will not qualify as depriving the party of the ability to present a defence. Examination by the state court of whether the arbitration court correctly found such evidence to be unnecessary would constitute impermissible encroachment into the merits of the case. If the arbitration court ignored a certain portion of the defence presented by the party, while including in the grounds for the award a substantive explanation of the reasons it found the defence to be irrelevant, then the party’s allegation with respect to ignoring its defence is in reality directed against the substantive defence of the dispute and as such is impermissible.

1. [A]n arbitral tribunal is not authorized to apply coercive measures towards witnesses or to draw consequences (therefore also instructing on an obligation to tell the truth) from the fact that a witness is at odds with the truth in his/her testimony. Some representatives of the doctrine think that such a possibility exists when the parties equipped the arbitral tribunal with this type of competence in a way of concordant statements. It is difficult to agree with such a stance… .

2. There can be no doubt that lack of impartiality of the arbitral tribunal resolving a dispute in arbitration constitutes such kind of violation that leads to setting aside of an arbitration award irrespective of the allegations invoked in the petition by a party.

1. The issue of the consistency of the resolution by the arbitration court with the determined state of facts is beyond cassation review in connection with Civil Procedure Code Art. 398³ § 3.

2. The arbitration court’s violation of the substantive law governing the case, which generally is connected with Civil Procedure Code Art. 1194 § 1, is subject to review by the state court considering a petition to set aside an arbitration award only in terms of application of the public policy clause—at the court’s own initiative or on the basis of an allegation in the petition.

3. The circumstances separately listed in Civil Procedure Code Art. 1206 § 1 as grounds for setting aside an arbitration award, proof of which lies primarily in the interests of the party, are excluded from the scope of application of the public policy clause.

4. The arbitration court’s conduct of the proceeding ignoring evidence offered by a party may justify an allegation of violation of Civil Procedure Code Art. 1183 if the evidence was necessary to the resolution of the case.

5. If the evidence raised by the party was ignored as a result of the arbitration court’s interpretation of substantive law, the mere fact that the interpretation may be regarded as erroneous cannot justify granting a petition to set aside the award unless the award also violates fundamental principles of the legal order.

6. The arbitration court’s application of regulations on the limitations period or preclusion may not be regarded as a violation of fundamental principles of the legal order even if this occurred on the basis of an erroneous interpretation of the regulations.

1. The regulations of Title III, Part Five, of the Civil Procedure Code, concerning arbitration, clearly adopt the principle of the priority of the mutual intent of the parties as to the composition of the arbitral tribunal and the manner of appointment of the arbitrators and the presiding arbitrator.

2. Appointment of the presiding arbitrator by the arbitrators may occur after the end of the one-month period following their appointment provided in the act, but before consideration of the application by the state court. … Because the basis for the Civil Procedure Code regulations concerning arbitration is to award priority to the intent of the parties, it would be groundless, irrational and contrary to a purposive interpretation of these regulations to deny the parties the right to decide for themselves on the composition of the arbitral tribunal solely because a court case is already pending concerning this—prior to issuance of a judicial ruling. The one-month period under Civil Procedure Code Art. 1171 §2 should be regarded as establishing the right of a party to file an application to the state court for appointment of an arbitrator or presiding arbitrator, and not as a preclusive period after which the parties lose the right to decide for themselves on whom to appoint as members of the arbitral tribunal.

1. An arbitrator must not be connected to any of the parties to the proceeding; he should be free of any obligations and pressures, and in performing the duties of arbitrator should decide solely in accordance with his own determination, based on the material gathered in the case. Disclosure of such circumstances must be made promptly after the person is appointed as arbitrator or the circumstances arise. [Civil Procedure Code Art. 1174 § 1] also refers to circumstances that could raise doubts as to the impartiality or independence of the arbitrator, not circumstances that do raise doubts.

2. The opposing party, and the not the arbitrator, is given the right to make an assessment of whether the circumstances disclosed by the arbitrator raise doubts or not, and potentially to initiate the procedure pursuant to Civil Procedure Code Art. 1176 § 3 and 4, including filing of an application to the state court to remove the arbitrator. It must be clearly stressed, however, that the existence of circumstances that could raise a doubt as to the independence or impartiality of an arbitrator is not equivalent to a finding of a lack of impartiality or independence of the person appointed as arbitrator.

3. The right to make a setoff is a subjective right of the holder and cannot be limited in its realization. Asserting this objection is also a procedural form of the respondent’s defence against the claimant, which it cannot be deprived of. In considering the defence of setoff asserted by the respondent as part of the examination of the justification for the principal claim, the arbitration court did not have to condition this examination on the existence of an arbitration clause in this respect.

4. The jurisdiction of the court considering a petition to set aside an arbitration award generally does not include review of the consistency of the award with substantive law or an examination of the correctness of the factual findings, other than a ruling based on a clearly selective and unobjective assessment of the evidence. Here, the grounds for the arbitration award are extensive, multifaceted and based on the indicated evidence, and explain the basis for the finding by the arbitration court that the claim for damages by the principal respondent asserted as a setoff to the claim of the principal claimant existed in the specified amount and the effectiveness of the setoff made, which resulted in denial of the principal claim. Examination of the justification for the petition is therefore not equivalent to substantive review of the award. Moreover, the appellant must remember that in deciding to submit the dispute for resolution by an arbitration court, it must be aware of both the positive and negative consequences. On one hand, the contracting parties are not exposed to the risk of lengthy proceedings, but on the other hand they waive certain procedural guarantees which apply in proceedings before the state court. Nor was there any barrier to the proceedings before the arbitration court being conducted in two instances (Civil Procedure Code Art. 1205 § 2).

1. Arbitrability of a dispute means that the character of the case makes it possible to be referred to arbitration by the parties, i.e. to be referred to the jurisdiction of an arbitral tribunal as a result of conclusion of an arbitration agreement.

2. Arbitration may… include a demand for awarding a claim, a demand for establishment of a legal relationship or a right, as well as a demand for shaping of a legal relationship indicated in the content of an arbitration agreement (for example, a demand to dissolve of a company).

3. In the current legal state, an allegation of lack of jurisdiction of an arbitral tribunal is a matter of preclusion, if it is not raised within a deadline referred to in Art. 1180 § 2 of the PCPC. In such a situation, a petition to set aside an arbitration award cannot be effectively based on the grounds indicated in Art. 1206 § 1 point 1 of the PCPC. All the more so if, on the basis of this allegation, it is impossible to refuse to rule on recognition or enforcement of an arbitration award or a settlement reached before the arbitration tribunal… .

4. An arbitration award may be said to be contrary to the fundamental principles of the legal order only with respect to constitutional principles of the socioeconomic system or the fundamental principles governing specific fields of substantive law… . [T]he phrase “fundamental principles of the legal order” used in Art. 1206 § 2 of the PCPC refers to such a violation of provisions of substantive law that results in violation of the principles of the rule of law, and the award infringes the overriding principles in force in the Republic of Poland and is in conflict with the legal order, i.e. it violates the principles of the political and socioeconomic system. The non-compliance of an arbitration award with a public policy clause does not consist in its non-compliance with the provisions of law, even the imperative ones, but in the inconsistency of the effects of recognition and enforcement of the arbitration award with the fundamental principles of the legal order.

5. [V]iolation of a [public policy – insertion added] clause is not… justified by an allegation that a performance, awarded in the arbitration award, results from a contract which was effectively terminated. Termination of a contract does not result in annulment of the legal effects which had arose earlier, at the time when the terminated contract was in force, and, furthermore, is not equivalent to the loss of the binding force by the arbitration agreement.

6. In the proceedings for enforcement of an arbitration award, a state court neither re-examines the case resolved by an arbitration award ex novo, nor examines the legitimacy of a substantive law claim raised by the claimant in the arbitration proceedings. The activity of the court is limited to examination whether there are prerequisites to refuse recognition of the arbitration award, which are a condition for the arbitration award to obtain, after its recognition or declaration of enforceability by the court, the same legal force as is enjoyed by state court judgements… .

7. Filing of a petition (Art. 1206 § 1 of the PCPC) is not a obstacle for issuing of a clause under Art. 1214 of the PCPC. If the parties have not established an appealing instance, an arbitration award is final. It becomes formally final – in a situation when there is no right to appeal against it – as soon as it is issued, and if the appeal is allowed – as soon as a tribunal of second instance renders its award. 

8. [T]he fact that a state court grants an enforcement clause to an arbitration award does not affect by any means the possibility of filing a petition to set aside the arbitration award… .

1. In a situation where the parties did not reach agreement on establishing the rules for the appellate proceedings and how they would be conducted, the arbitration court, in light of the parties’ intent clearly expressed in the arbitration clause, inconsistent with the rules in force at the arbitration court, should have either refused to accept the case for consideration or, pursuant to Civil Procedure Code Art. 1184 § 2, conducted the appellate proceedings in the manner it saw fit.

2. In a situation of inconsistency between the arbitration agreement calling for two instances of arbitration proceedings and the rules of the arbitration court calling for one instance, priority should be accorded to the intention of the parties, and thus the arbitration clause. As the parties first mutually agreed on the rule of two instances before the arbitration court they selected, and second, failed only to agree on the rules for procedure at the second instance, the arbitration court was obligated to establish these rules itself.

3. As the parties referred to proceedings at two instances in the arbitration clause, failure to comply with this requirement by the arbitration court must be regarded as a violation of fundamental rules of procedure before the arbitration court (Civil Procedure Code Art. 1206 § 1), resulting in granting the petition and setting aside the challenged award.

1. Taking into consideration the additional argument related to the decisive influence of the parties on the choice of the arbitrator and its significance for the proper appointment of the arbitrator within the meaning of Art. 1206 § 1 point 4 of the PCPC, it shall not be questionable that in a situation when the person of an arbitrator was known to the petitioner before the rendering of the arbitration award, admissibility of filing of a petition to set aside an arbitration award on this basis shall be limited to the situation when an appropriate allegation has been made first, as well as that the omission, indirectly indicating acceptance of the person of the arbitrator, even if appointed in breach of the rules regarding his/her appointment laid down by the parties or provided for in the Arbitration Rules of a permanent court of arbitration, who was mutually appointed by the parties to resolve the dispute between them, shall result in non-admissibility of a petition based on such an allegation, since such a solution has been adopted in Art. 1193 of the PCPC.

2. [I]t unequivocally follows from this provision [Art. 1189 § 1 of the PCPC – insertion added], especially from the beginning of the second sentence, that a hearing before an arbitral tribunal is not obligatory and that the parties’ arrangements, which also means acceptance of the Arbitration Rules in force chosen by the parties to resolve a given case, are of essential significance.

3. It is also unjustified to find that the public policy clause is infringed by an omission of making a written declaration regarding impartiality by an arbitrator when no specific circumstances justifying the exclusion of the arbitrator were given and demonstrated, also in proceedings initiated by a petition [to set aside an arbitration award – insertion added] by the party who has not filed such a petition… .

4. [R]endering an award in disregard of the fact that a final ruling has been rendered in the case regarding the same claim and between the same parties before an arbitration award covered by the petition is rendered or infringement of third parties’ rights may advocate in favour of application of Art. 1206 § 2 point 2 of the PCPC for the benefit for the party filing the petition… .

1. Because an arbitration award may be set aside only for grounds set forth in the law which are generally considered at the court’s own motion, while, with the exception of the invalidity of the proceedings before the court of second instance, a cassation appeal is considered within the bounds of the grounds stated for the cassation appeal, a cassation appeal in a proceeding seeking to set aside an arbitration award may — apart from the instance of invalidity of the proceedings before the court of second instance — be granted only if one of the grounds asserted in the cassation appeal is upheld containing an allegation which justifies or may justify a finding of grounds for setting aside the arbitration award asserted in the petition to set aside the award or considered at the court’s own motion.

2. The separate listing of the circumstances [in Civil Procedure Code Art. 1206 § 1 (2), (4) and (5)] as grounds for setting aside an arbitration award leads to the conclusion that they are excluded from the scope of application of the public policy clause.

3. For the arbitration court to conduct the proceeding ignoring the proffer of evidence, when the party has not given up introduction of the evidence and the evidence was necessary for resolution of the case, will constitute a violation of [the second sentence of Civil Procedure Code Art. 1183], setting forth one of the fundamental principles of arbitration procedure.

1. The view cannot be shared that in connection with the dispute that had arisen the contractor should have brought about the appointment of a dispute adjudication board and presented the dispute to it, and the consequence of failure to take such actions is the loss of the possibility of effectively pursuing the claim. The section [of the FIDIC contract conditions] on Claims, Disputes and Arbitration does not provide for such sanctions.

2. In proceedings before the arbitration court the arbitrators are not bound by decisions of the [FIDIC] dispute adjudication board, whose decisions should be treated as evidence in the case. The decision by the dispute adjudication board cannot be treated analogously to an arbitration award, nor is the proceeding before the board a part of the proceeding before the arbitration court.

3. The contracting entity was properly informed of the need to perform additional works and did not dispute the need to perform them. It thus may not effectively allege that payment for such works violates fundamental principles of the legal order because public monies were involved in financing the works.

1. Participation in a judicial proceeding by entities lacking judicial capacity would result in the invalidity of the proceeding, while issuance of an arbitration award with respect to such entities would be regarded as a violation of the fundamental principles of the legal order of the Republic of Poland, because it would violate one of the fundamental procedural rules that only a party vested with judicial capacity can be a party to proceedings. Moreover, such an award would also violate the fundamental principle of civil law that only entities vested with legal capacity can be the subject of civil-law rights and obligations.

2. If a party raises the objection that the arbitration court lacks jurisdiction or the objection that a demand asserted by the opposing party exceeds the bounds of the arbitration clause (Civil Procedure Code Art. 1180 § 2), and the arbitration court deems these objections unfounded, the arbitration court may issue an award, stating therein that it deemed the objections raised to be unfounded, or overrule the objections in a separate order. In the first instance, the correctness of the position of the arbitration court on the objection raised by the party may be reviewed in a petition to set aside the arbitration award. However, if the arbitration court issues an order overruling the objection, review of the correctness of this position by the state court may occur only under the procedure provided for in Civil Procedure Code Art. 1180 § 3, i.e. by the party who raised the objection applying to the state court for a ruling within two weeks after service of the order on the party. The party’s failure to initiate such procedure for review of the order issued by the arbitration court deprives the party of the possibility of effectively basing a petition to set aside the arbitration award on the same objections constituting grounds for a petition to set aside an arbitration award under Civil Procedure Code Art. 1206 § 1 (1) and (3).

3. The arbitration court’s violation of regulations of law, even regulations that are mandatorily applicable, does not necessarily mean violation of fundamental principles of the legal order, even if the arbitration court resolves the dispute according to the law governing the given relationship, when under Civil Procedure Code Art. 1194 § 1 the parties did not authorize it to decide on the basis of general principles of law or equity.

4. The intervention by the arbitration court with respect to the demand presented concerned … the method of fulfilment of the performance demanded. In procedural law there are no more specific rules of a fundamental nature referring to ruling on the manner of fulfilling the performance demanded in the statement of claim by several persons. The case law permits a certain intervention by the court here, e.g. awarding the demanded amount in solidum instead of jointly and severally, and vice versa. … From the point of view of the principle that it is up to the parties to frame their demands [dyspozytywność] it is essential that the identity of the subject of the demand be maintained, and the scope and factual grounds justifying upholding the demand. With respect to the demand that was asserted, the arbitration award maintained the identity of the debtor and the creditor, the type of relief, its amount and indivisibility, and also the factual grounds justifying granting the relief.

5. The essence of this agreement [a consortium] is at least similar to the agreement of an ordinary partnership [spółka cywilna], and sometimes contains the essential elements thereof, which justifies application of the regulations governing ordinary partnerships as relevant to the relations between members of the consortium, including the regulations concerning joint commonality [wspólność łączna]. … It does not violate the public policy clause for the arbitration court to award damages to three entities “jointly” despite the lack of a legal relationship among these entities creating joint commonality among them.

6. The arbitration court’s ruling on the basis of the regulations of applicable law, if the parties do not provide otherwise (Civil Procedure Code Art. 1194 § 1), is one of the fundamental principles of procedure before the arbitration court. Therefore violation of this principle by the arbitration court may be asserted as an allegation of violation of Civil Procedure Code Art. 1206 § 1 (4). Under this allegation, however, the state court cannot be expected to review the substantive correctness of the award issued by the arbitration court.

7. The position that suffering injury as a result of non-performance or improper performance of an obligation arising out of a contract does not justify wilful satisfaction of the claim for damages out of the established security, contrary to the conditions agreed with the counterparty, does not violate fundamental principles of the legal order, i.e. the principles of the rule of law (Constitution Art. 2), protection of property rights and equality of counterparties cooperating with one another (Constitution Art. 20), economic liberty (Constitution Art. 22), and equality before the law (Constitution Art. 32(2)).

1. The absence in the Polish system of a legal regulation concerning relief from the costs of arbitration proceedings is a subject not lying within the jurisdiction (justiciability) of the state court. This excludes the permissibility of implementing through a judicial ruling the standards of procedural law reserved for judicial proceedings for the sake of a proceeding before an arbitration court. … The “law of indigents” within the meaning of the Act on Court Costs in Civil Cases is not of a substantive civil nature, but is a systemic regulation guaranteeing the fulfilment of Art. 45(1) of the Polish Constitution, ensuring the right of access to the courts, and Art. 177 of the Polish Constitution, which establishes the presumption of the jurisdiction of the state court. Following the rules of interpretation of the Act on Court Costs in Civil Cases, there are therefore no grounds for finding that an application for relief from the costs of an arbitration proceeding may be resolved through the courts.

2. The presumption of justiciability (Civil Procedure Code Art. 1 and 2) does not exclude commencement of a judicial proceeding despite the commencement of an arbitration proceeding. … It is not a barrier to consideration of a case by the state court that the case is also pending at the same time before an arbitration court.

3. An application for relief from the costs of an arbitration proceeding cannot be resolved through the courts (Civil Procedure Code Art. 199 §1(1)).

4. A finding of the lapse of legal force of an arbitration agreement may result from the inability of the arbitration court to consider the case in light of the objective inability (the proportion of the degree of wealth of the interested person and the foreseeability of such costs as of the date of the arbitration agreement in relation to the level of the fees, constituting an excessive barrier to the accessibility of the arbitration court) to cover the advance arbitration costs by an interested person who has commenced the proceeding before the arbitration court. The evaluation of the circumstances connected with the existence of the last of these grounds is reserved for the state court deciding a possible objection by the defendant under Civil Procedure Code Art. 1165 §1 in proceedings connected with the dispute formally covered by the wording of the arbitration agreement.

1. [I]t is only possible to admit as evidence certain documents contained in the files of a case, because Art. 244 et seq. of the PCPC only provide for evidence in the form of documents, not evidence in the form of files of another case. Without a violation of the principle of directness indicated in Art. 235 of the PCPC, it is only possible to admit evidence in the form of specific, well-defined documents… . This view holds true also in the case of documents attached to the files of the Court of Arbitration.

2. A court considering a petition [to set aside an arbitration award – insertion added] is bound by the grounds alleged by the petitioner, and thus may set aside an arbitration award because of the existence of one of the grounds listed in Art. 1206 of the PCPC only if the ground was alleged in the petition. However, the circumstances provided for in Art. 1206 § 2 of the PCPC are examined by the court ex officio.

3. [T]he public policy clause is not intended for substantive review (the correctness) of the arbitration award. The prohibition of a review of the merits (correctness) of an award is related to the essence of the application of the public policy clause. In applying this clause, the point is not to determine whether the award is consistent with all relevant mandatorily applicable regulations of law, but only to determine whether the award effected a result contrary to the fundamental principles of the domestic legal order.

1. The proceeding on a petition to set aside an arbitration award is not a “review” proceeding, by instances, of a state court. No ordinary means of appeal lies against an arbitration award, but only a petition to set aside the arbitration award. Such petition, as stressed in the literature, is not a means of appeal but an extraordinary means of judicial oversight by the state court of the activity of the arbitration court.

 2. It does not appear warranted to conclude from the wording of Art. 1213 of the Civil Procedure Code (referring to a proceeding for recognition or enforcement of an arbitration award) that it is necessary to present the original of the [arbitration agreement] or a certified copy thereof in the arbitration proceeding. This is primarily because it would extend the grounds for the petition under Art. 1206 of the Civil Procedure Code.

3. Art. 1197 §§ 1 and 2 of the Civil Procedure Code should be read together, meaning that the arbitration award must contain both the operative wording and the grounds, as necessary elements; the award must be signed and then served on the parties (Civil Procedure Code Art. 1197 §4).

4. Violation of the public policy clause must refer to the operative wording of [the award], which will function in legal circulation, and not to the level of the grounds.

5. Only if the state court finds that the [evidentiary] procedure was not conducted at all, or was conducted incompletely, or in an obviously defective way, violating principles of logical reasoning connecting facts in a chain of cause and effect, selective admission of evidence in the case, admitting evidence only from one party, unjustifiably ignoring evidence submitted by the opposing party, and the like, can it be found that the requirements referred to in Art. 1206 §1(4) of the Civil Procedure Code were not met.

1. Arbitrators perform duties delegated to them by the parties as private persons, and are not representatives of the state judiciary. … arbitral tribunals do not administer justice within the constitutional meaning (Art. 175 of the Constitution of the Republic of Poland).

2. It is noted in the doctrine that submitting a case to the competence of an arbitral tribunal may be treated as a resignation – within the limits set by law – from the constitutionally guaranteed right to court of the parties, i.e. a right to request a state court to hear and resolve the case. This does not mean, of course, a waiver of the right to court in general or a resignation in full from the judicial protection of rights afforded by state courts, but a decision to resign from legal protection in a particular case or cases which may arise out of a given legal relationship (that is within the limits indicated in the arbitration agreement) directly before a state court. This resignation is not, however, total, because, firstly, arbitration is based on specific rules which the parties cannot derogate and which are intended to ensure reliability of proceedings (provisions of part five of the Polish Civil Procedure Code), and secondly, arbitration awards are subject to review by state courts.

3. The rules resulting from the Constitution of the Republic of Poland referring to the state administration of justice, including Art. 45, cannot be applied to arbitration which derives its competence to resolve a given dispute from a free, autonomous decision of the parties as to the way of exercise of their private rights.

4. Art. 1161 § 1 and 3 of the Polish Civil Procedure Code makes it unequivocally clear that the error on which the claimant relied in the case, i.e. that the claimant did not know that if had no funds to pay the registration and arbitration fees, it would be deprived of the possibility to initiate proceedings before the Court of Arbitration at the Polish Chamber of Commerce, caused by the failure of defendant 1 to inform the claimant of the Arbitration Rules and fees table and to present them for approval, was not an error relating to the content of the legal act.

1. A proceeding on a petition to set aside an arbitration award is not an appellate review proceeding by the state court. No ordinary means of appeal lies against an arbitration award, but only a petition to set aside the award. As stressed in the legal literature, such a petition is not an appellate measure but an extraordinary means of judicial oversight by the state court over the activity of the arbitration court. This has the fundamental consequence that the state court generally does not examine the resolution by the arbitration court, and in particular does not review whether it is founded on the facts cited in the justification for the award, or whether the appropriate provisions of substantive law were applied. The state court may set aside an arbitration award only in exceptional instances, indicated in narrowly interpreted provisions of the code. Consequently, in the event of doubt the award should be upheld rather than set aside.

2. In examining the grounds and conditions set forth in Civil Procedure Code Art. 1206 §1(4), what is essential is failure to comply with the requirements for the fundamental rules of procedure before the [arbitration] court arising out of statute or specified by the parties. Such rules include basing the award on the established state of facts, which occurs after considering evidence.

3. The judicial discretion (of the arbitration court) in evaluating the relevance of specific evidence or allegations for making factual findings and issuing a ruling is appropriately broader than that referred to in Civil Procedure Code Art. 233 §1, and the state court “reviews” it only in terms of the “fundamental principles” of procedure before the arbitration court. Thus only if the state court finds that such procedure was not conducted at all or was conducted incompletely, or was obviously conducted defectively, violating the rules of logical understanding, connecting of facts in a chain of cause and effect, selective admission of evidence in the case, taking evidence only from one party, unjustifiably ignoring evidence offered by the opposing party, and so on, can it be found that the requirements referred to in Civil Procedure Art. 1206 §1(4) were not met. The cited provision should be interpreted narrowly, limiting the possibility of setting aside an arbitration award to the principles of a fair trial and procedural violations which could have had an impact on the arbitration award.

4. Violation of substantive law may be grounds for setting aside an arbitration award only when the substance of the award violates fundamental principles of the legal order. It should be borne in mind that the arbitration court is not bound not only by civil procedure regulations (Civil Procedure Code Art. 1184 §2), but also regulations of substantive civil law.

5. The rules establishing the obligation to pay damages may be regarded as comprising one of the fundamental principles of the legal order in the state; in other words, if anyone suffers an injury and the grounds for liability under any of the civil liability regimes are met, then within the bounds provided by law (Civil Code Art. 361 §§ 1 and 2) damages should be awarded against the person responsible.

1. Violation of the principle of the equality of the parties may also occur through adoption of the specific wording of the rules of an arbitration court (Civil Procedure Code Art. 1161 §3). … Under the Civil Procedure Code provisions on arbitration, the equality of the parties means—generally speaking—awarding the parties equal rights, both within the main arbitration clause itself and in the rules of the permanent arbitration court, creating equal opportunities for the parties in the definitive resolution of the dispute covered by the agreement.

2. In determining whether the principle [of the equality of the parties] is complied with in the arbitration agreement, a clear distinction should be made between the content of the arbitration agreement itself (also including the provisions of the rules of the permanent arbitration court) and the general rules of operation of the permanent arbitration court. … The principle of the equality of the parties within the meaning of Civil Procedure Code Art. 1161 should be addressed to the content of the arbitration agreement itself, and not to such elements of an organizational nature, which only establish the necessary and proper legal and organizational infrastructure to assure the parties the ability to establish the appropriate panel of arbitrators within the individual legal dispute.

3. Organizational ties between permanent arbitration courts and various professional associations or business organizations are not determinative of a specific dependence on the organizations where the arbitration courts operate or a lack of impartiality of specific arbitrators.

1. Proceedings before a state court are not aimed at review, which is the case with courts of the second instance. The task of a state court in proceedings initiated by a petition to set aside an arbitration award is to assess the correctness of the petition solely in the light of the prerequisites indicated in Art. 1206 § 1 and 2 of the PCPC.

2. A party is deprived of the ability to defend its rights before an arbitral tribunal, if the principle of equal treatment of the parties or the right of the party to be heard and submit evidence is violated, which… happens if a party is prevented from getting familiar with the opposing party’s position or evidence submitted by the opposing party, if the party is prevented from addressing them, if the party is prevented from the presenting and proving their arguments… .

3. Art. 1206 § 1 point 4 of the PCPC… needs to be interpreted narrowly, limiting the possibility of setting aside of an arbitration award to violations of the rules of a fair trial and to procedural violations which could have an impact on the arbitration award. Overruling of a question regarding the legal basis of a claim that the arbitral tribunal is not bound by does not constitute such a violation.

4. Violation by an arbitral tribunal of substantive law applicable to the examined legal relationship may result in setting aside of the award rendered by this tribunal only if the award violates the fundamental principles of the legal order. … the circumstance whether the prerequisites of joint and several liability have been proven… arising out of Art. 647¹ § 5 of the Polish Civil Code and the matter of interpretation of this provision by the arbitral tribunal cannot be the subject of the ruling in this case.

1. The regional made an erroneous interpretation of Civil Procedure Code Art. 1206 §1(5) by incorrectly assuming that demonstration of the statutory ground for setting aside an arbitration award in the form of issuance of the award on the basis of a forged or altered document requires proof of this fact through a legally final conviction for commission of a criminal offence. The ground for setting aside an arbitration award consisting of the fact that the arbitration award was obtained through a criminal offence or that the basis for issuance of the award was a forged or altered document is the same as the basis for reopening a civil proceeding set forth in Civil Procedure Code Art. 403 §1(1). However, Art. 1206 §1(5) does not expressly require that the criminal act underlying obtaining of the arbitration award be established by a legally final criminal judgment, which means that such fact may be the subject of independent findings by the regional court.

2. There is great autonomy in arbitration procedure, entirely consistent with the legislative intent, significantly limiting the opportunities for review by the state court. The basic purpose of this legal regulation is to expedite the procedure for resolution of civil disputes, and not to create an additional phase of pre-judicial procedure. When the parties decide to submit a dispute to an arbitration court, they therefore must take into account such conditions, also including the minimal external review of its awards.

3. For the state court to conduct a proceeding concerning alteration of documents, which the petitioner did not attempt to demonstrate in the arbitration proceeding, would essentially involve the state court replacing the juridical activity of the arbitration court, which is not provided for by the civil procedure regulations.

4. Because the petitioner did not seek to correct or supplement the record [before the arbitration court], failure to exercise this special measure means that it lost the right to assert irregularities in preparation of such document. Pursuant to §13 of the Rules [of the Court of Arbitration at the Polish Chamber of Commerce in force from 1 January 2007], if the provisions of the Rules or the procedure agreed by the parties is not followed, a party who knew of such violation but failed to assert an objection promptly or within another time determined by the parties is deemed to waive the opportunity to raise such allegation in the proceeding before the arbitration court.

5. The limits of the discretion of the arbitration court in conducting the evidentiary procedure are established by the requirements of thorough examination of the circumstances essential to resolve the matter and equal treatment of the parties to the proceeding. Depriving a party of the opportunity to defend its rights should be interpreted narrowly. The arbitration court’s rejection of evidence offered by a party because it finds the evidence unnecessary does not constitute depriving the party of an opportunity of a defence.

1. The rule of the binding force of legally final judicial rulings, as an element of the values protected under the Constitution and in the international order making up a state governed by the rule of law, which the Republic of Poland is, is included among the fundamental principles of the legal order of the Republic of Poland.

2. The state judicial system and arbitration are not identical. The lack of identity does not mean, however, that arbitration courts, and particularly their rulings, are irrelevant for the judicial system. While it is true that under Art. 175 of the Constitution, justice is dispensed by the state courts, it should be clearly stressed that as part of the dispensation of justice, the state courts oversee the activity of arbitration courts, and more precisely the rulings issued by them.

3. A ruling by a state court on recognition or enforcement of an arbitration award results in ascribing to the award the same force that rulings of state courts have, which is clearly confirmed by Civil Procedure Code Art. 1212 §1. This means that such a ruling, thanks to the state court ruling connected with it, must be treated in legal dealings the same as any other ruling of a state court. ... If an arbitration ruling has the same force as a ruling of a state court, this means that Civil Procedure Code Art. 365 §1 [i.e. preclusive effect] applies to it. Civil Procedure Code Art. 1212 does not provide for any exceptions from the equivalence of the effects of the arbitration court ruling to a state court ruling.

4. If the parties and the arbitration court appointed by them wish the ruling of the arbitration court to be equivalent in its effects to a state court ruling, they must take into consideration that the arbitration court has already ruled preclusively in the same matter between the same parties. If the prior ruling by the arbitration court has already been recognized or enforced by the state court, this has fundamental significance for the ability to recognize a further ruling issued between the same parties. A state court which is ruling on recognition or enforcement of a further ruling may not ignore the fact that the state court has already spoken on the same matter. In other words, the court will be bound by the ruling of the state court that recognized or enforced the prior arbitration court ruling.

5. It follows from Civil Procedure Code Art. 365 §1 that a court ruling on recognition of a second arbitration ruling, being bound by the prior ruling also by a state court, should not permit two rulings to be found in legal circulation which decided the same preclusive issue differently in the same matter between the same parties.

6. The lack of a basis to apply the regulations on a proceeding upon a petition to reopen [a legally final judgment] directly to assessment of an arbitration award, and on the other hand the lack in Polish law of a regulation for reopening a proceeding with respect to arbitration awards, cannot result in the unfettered discretion of an arbitration court in determining whether to take into consideration an earlier award in which a certain issue was already preclusively ruled on between the same parties. … If the arbitration court expects its award to be recognized, it should take into consideration the prior resolution of the preclusive issue in the award that was already recognized with legal finality by the state court. When examining the permissibility of a departure from this rule, the court in a proceeding to set aside an arbitration award may not rely on the mere assertion by the arbitration court that new facts or evidence has appeared in the case, but should determine, applying as relevant the criteria for assessment developed in the context of the legal regulations for reopening of a proceeding concluded in a legally final judgment, whether they are truly new facts and evidence, and whether the party could have asserted them in the prior proceeding.

1. Factual findings by the arbitration court are generally binding on the state court hearing a petition by a party dissatisfied with the resolution of the case by the arbitration court. The proceeding before the state court is not in the nature of the review proper to a common court of second instance, however, but is limited to the grounds expressly stated by the regulations, which are the permissible legal grounds for a petition to set aside an arbitration award (Civil Procedure Code Art. 1206 §§ 1 and 2).

2. Only if the state court finds that the [evidentiary] procedure was not conducted at all or was conducted incompletely, or was clearly conducted defectively, in violation of the rules of logical understanding and linking of facts in a chain of cause and effect, with selective admission of evidence in the case, admitting evidence only from one side, excluding without justification evidence offered by the opposing side, and the like, may it be found that the requirements referred to in Civil Procedure Code Art. 1206 §1(4) were not met. ... This provision should be interpreted narrowly, limiting the possibility of upsetting an arbitration award to the principles of a fair trial and procedural violations that could have an effect on the arbitration award.

3. The defendant’s argument that the principles of civil liability for injury do not belong to the fundamental principles of the legal order in Poland cannot be sustained. Under the civil law, and thus in private legal relationships, as a result of various events—particularly dangerous acts, acts arising out of commercial activity, vehicular traffic, as well as legal acts—the occurrence of injury is of universal dimensions and requires legal regulations guaranteeing liability in damages. Regulations in this respect belong to the fundamental norms of the law of obligations, and under tort liability and contractual liability may be regarded as forming some of the fundamental principles of the legal order of the state.

4. Art. 45 of the Polish Constitution does not refer at all to arbitration, but only to the state courts.

1. In the view of the appellant, it was allegedly deprived of the opportunity to defend its rights before the arbitration court (Civil Procedure Code Art. 1206 §1(2)) because the arbitration court upheld a claim as to liability which had never been raised. … As the appellant ... does not allege that it was stipulated otherwise between the parties, it may be assumed that under the rule set forth in Civil Procedure Code Art. 1188 §2 the arbitration court regarded the claim for damages set forth in a pleading as effectively asserted.

2. The principle of the equal rights of the parties was respected in the proceeding before the arbitration court, as each of the parties was provided an opportunity to present its position on the matter at each stage of the proceeding.

3. The public policy clause, like any general clause, is not precisely defined, which leaves great discretion to the court ruling on a specific case, but nonetheless, on the basis of this clause, the review of the constitutive elements of an arbitration award may not take on the dimensions proper to a review of the merits (correctness) of the award. ... The prohibition of a review of the merits (correctness) of an award is tied to the essence of application of the public policy clause. In applying the clause, the point is not to determine whether the award is consistent with all relevant mandatorily applicable regulations of law, but only to determine whether the award effected a result contrary to the fundamental principles of the domestic legal order.

4. The fundamental principles of the legal order are the fundamental constitutional rules concerning the socio-economic system and the overriding principles governing specific fields of substantive and procedural law. It has been recognized in the case law that such principles include economic freedom and the freedom of contract, ... the principle of the autonomy of the will of the parties and the equality of entities, ... and the principle of social justice.

5. Procedural public policy ... may be grounds for assessing an arbitration award in two aspects. First, the procedure which led to issuance of the arbitration award is assessed for its compliance with fundamental procedural principles of the legal order. Second, the effects of the arbitration award are assessed from the perspective of their consistency with procedural public policy, i.e. whether they are reconcilable with the system of procedural law, e.g. whether they violate the principle of res judicata or the rights of third parties.

1. A petition to set aside an arbitration award is an extraordinary means of review of arbitration rulings by the state court. It is not an appeal, but combines the features of an extraordinary means of challenge with a claim to establish a right or legal relationship. But it cannot be agreed that it is a type of appeal or means of challenge.

2. The list of grounds for a petition to set aside an arbitration award provided in Civil Procedure Code Art. 1206 §§ 1 and 2 are exhaustive in nature; that is, the court may not set aside an arbitration award for reasons other than those set forth in this provision. It should nonetheless be pointed out that one of the grounds for the petition—the public policy clause—is in the nature of a general clause, which means that the list of circumstances which may justify setting aside an award is not closed.

3. Not every violation of the rules for procedure before the arbitration court established by the parties or arising under the code should result in setting aside an arbitration award. It is justified to accept by way of interpretation that the fundamental rules of procedure are those whose violation could have an effect on the result in the proceeding before the arbitration court in the specific case.

4. With respect to review of arbitration awards, the purpose of the public policy clause is to protect the national legal system against resolutions that are incompatible with the system. The resolution by the arbitration court, understood as an individual and concrete norm expressed in the arbitration award, as well as the method by which it was issued, is subject to assessment from the point of view of compatibility with the fundamental principles of the legal system.

5. The state court does not review the correctness of the arbitrators’ resolution, but it must examine and assess it in order to review the compatibility of the resolution with public policy. In other words, the state court should—at least insofar as the allegation of incompatibility [with public policy] arises—create a model of the ruling which in its opinion is correct, and then compare that to the arbitrators’ resolution, in order to determine whether the nature and scale of the inconsistency justifies the allegation of violation of public policy.

6. A gross and obvious discrepancy between the facts appearing from the arbitration case file (or facts that are commonly known or known to the state court in its official capacity) and the facts assumed as the basis for the award may not remain entirely beyond the scope of interest of the state court.

7. In the meaning of consistency with the fundamental principles of the legal system of the Republic of Poland, the point of the Parliament was not that a ruling be consistent with all regulations of Polish law, but only that there be consistency with the fundamental principles of the legal system of the Republic of Poland.

8. The principle of the enforceability of contracts belongs to the group of fundamental principles of the Polish legal system. It is not absolute in nature, however, and is subject to a number of statutory exceptions. One of them is Civil Code Art. 5, setting forth the notion of abuse of a subjective right.

9. The principle of estoppel (venire contra factum proprium) and the clean-hands doctrine are not counted among the fundamental principles of arbitration court procedure and are not recognized as a part of the legal system of the Republic of Poland.

10. The rule of impartiality leads the arbitrators to maintain an impartial attitude toward the case and the participants in the proceeding. In turn, the formal equality of the parties is manifest in the right to be heard and equal procedural measures. The principle of equality in the proceeding before the arbitration court has two aspects: hearing out the parties by the arbitration court, and the opportunity to present their allegations and evidence to support them (the opportunity to use the same procedural measures). The principle of directness requires that evidence be taken before the full panel of the arbitration court.

11. If no injury was caused, awarding damages should be regarded as inconsistent with the fundamental principles of the legal system of the Republic of Poland.

1. An arbitration court may rule on its own jurisdiction in a proceeding in which a claim has been filed (Civil Procedure Code Art. 1180 §1), including also in a separate order. In the regulations concerning procedure before the arbitration court, the Parliament did not provide a basis for issuance of an award dismissing a statement of claim commencing a proceeding before the arbitration court, including in a situation where the arbitration court finds that it has no jurisdiction to decide the dispute. It follows from these provisions that in instances indicated in Civil Procedure Code Art. 1190 §1, 1196 §1 and 1198, the arbitration court shall issue an order discontinuing the proceeding. It should thus be accepted that the arbitration court shall issue such an order also when, after beginning to receive evidence in the matter, it finds that the proceeding cannot continue because of the lack of an arbitration clause or the invalidity of such agreement. Conducting the proceeding and issuing an award then becomes impossible for a reason other than that stated in Civil Procedure Code Art. 1198 (1) and the beginning of (2).

2. The nature of a ruling issued by a court, including by an arbitration court, is decided by the substance of the ruling, and not the name or external form which the court gave to the ruling .... The ruling challenged by the claimant in the petition to set aside the arbitration award ... was not—contrary to the name used—an arbitration award, but in light of the nature of the determination made therein, an order.

3. An order discontinuing the proceedings before the arbitration court because of the lack of a valid arbitration clause, or an order dismissing the statement of claim for this reason, is a ruling ending the proceeding before the arbitration court, in which the court rules on its own lack of jurisdiction in the matter. While an order by the arbitration court in which the arbitration court denies a defence of the lack of the arbitration court’s jurisdiction may be challenged before the common court by either of the parties within two weeks (Civil Procedure Code Art. 1180 §3), the Parliament did not provide for the opportunity to challenge before the common court an order by the arbitration court in which the arbitration court rules that it lacks jurisdiction in the matter. Upon issuance of such ruling, a proceeding before the common courts is open to the parties interested in resolution of the dispute, and they may exercise their right of access to the courts in such proceeding.

4. A negative determination by the arbitration court as to its own jurisdiction in a matter is a final ruling and is not subject to review by the common court. A ruling by the arbitration court finding that it lacks jurisdiction in the matter may thus not be challenged by a petition to set aside an arbitration award as provided by Civil Procedure Code Art. 1205 ff.

1. It is clear that an arbitration clause may be binding also on legal successors with respect to the relationship under which disputes were submitted to the arbitration court for resolution, ... but an endorsee is generally protected by Art. 17 of the Promissory Note Law against defences by the promissory note debtors based on their personal relations with the prior holders of the note. This also includes protection against the defence that the promissory note dispute is subject to an arbitration clause. ... The promissory note debtor could assert against the endorsee the defence that the promissory note dispute is subject to an arbitration clause agreed with the prior holder of the promissory note only if the endorsee, in acquiring the promissory note, consciously acted to the injury of the debtor, i.e. knew of the existence of grounds for the debtor to assert the arbitration clause against the prior holder and also sought, to the injury of the debtor, to deprive the debtor of such defence. ... The promissory note debtor’s assertion against the acquirer of the promissory note, without any limitations, of the defence that the promissory note dispute is subject to an arbitration clause, could come into play only in instances where the promissory note was acquired by way of an assignment agreement or endorsement after protest for non-payment or after the deadline for protest, having the effect of an assignment (Promissory Note Law Art. 20(1), first sentence).

2. Although a clause submitting a promissory note dispute to an arbitration court is theoretically permissible under Civil Procedure Code Art. 1157, to do so must be regarded from the perspective of the promissory note creditor as highly irrational, as it deprives the promissory note creditor of the benefits afforded it by seeking payment of the promissory note in a proceeding for an order of payment before the common court. ... The position cannot be accepted ... that benefits comparable to those afforded to the party enforcing payment of a promissory note by a proceeding for order of payment may be assured in an arbitration proceeding by reference to the regulations concerning proceedings for order of payment within the parties’ agreement concerning “the rules and manner of proceeding before the arbitration court” (Civil Procedure Code Art. 1184 §1).

3. In light of the irrationality of submission of a promissory note dispute to an arbitration clause, it should be accepted that the effectiveness of such a clause requires an express reservation with respect to the given promissory note claim which in each instance does not raise any doubts. ... This rules out extending an arbitration clause included in the agreement underlying the issuance of the promissory note, with respect to disputes connected with such agreement, to a promissory note claim against the issuer.

1. The grounds for setting aside an arbitration award in the form of failure to comply with fundamental rules of procedure cannot be equated with the grounds set forth in Civil Procedure Code Art. 1206 §2(2) arising out of the public policy clause, and the latter constitute separate grounds for setting aside an award.

2. The mandatorily applicable Civil Procedure Code Art. 1197 §2 provides that the statement of the reasons which guided the arbitral tribunal in issuing the award constitutes an inseparable part of the award. The reasons stated essentially constitute an integral part of the award. … The reasons for the resolution included in the justification may also prove relevant for determining the binding force of the legally final award, and thus the bounds of its substantive legal finality, even though this generally involves the binding force of the operative wording of the award. The reasons for the resolution are also covered by res judicata in situations where they must be referred to in order to determine precisely the substance of the resolution.

1. A petition to set aside an arbitration award is an extraordinary means of review intended to set aside the award if at least one of the grounds exhaustively set forth in Civil Procedure Code Art. 1206 is justified.

2. When considering a petition [to set aside an arbitration award], the state court is bound by the grounds alleged by the petitioner. Only two of the grounds set forth in Civil Procedure Code Art. 1206 §2 are considered on the court’s motion: the non-arbitrability if the dispute and inconsistency of the arbitration award with the fundamental principles of the legal order of the Republic of Poland.

3. The assessment of whether an arbitration award is contrary to fundamental principles of the legal order is addressed to the content of the award, and not the correctness of the procedure before the arbitration court or the composition of the panel. … An arbitration award may be set aside under the public policy clause if it is found that the results included in the content of the award are not consistent with a specific norm which is regarded as one of the fundamental principles of the legal order in force in Poland. ... These principles include not only constitutional norms, but also the overriding norms in specific fields of law.

4. The requirements made of persons serving as arbitrators should be combined with a party’s right to learn about any ties the arbitrator may have to entities appearing in the proceeding. It is up to the party to evaluate such circumstances as grounds for a decision to select an arbitrator or to seek removal of an arbitrator. The arbitrator’s self-assessment is irrelevant, because the essence of a fair procedure is tied to objective judgment by others. ... The fundamental principles of the legal order include the right to a court as provided in Art. 45(1) of the Polish Constitution, an element of which is a party’s right to have its case heard by an independent court, in a fairly conducted procedure.

1. By adopting an arbitration clause, the parties voluntarily restrict their own constitutional ... right to resort to the courts.... Matters are most often entrusted to arbitrators for resolution because of their specialized knowledge, e.g. in the field of construction (in construction cases) or concerning commercial practices (in matters related to international transactions), where specialized knowledge is more important than knowledge of the substantive legal norms of a given legal system. In cases of this type, the arbitrators’ legal intuition may be sufficient. In such instances, it should be accepted that the arbitration court is not bound by regulations of substantive law, given the nature of the matters submitted to the jurisdiction of the arbitration court.

2. Pursuant to Civil Procedure Code Art. 714, the court is bound by the grounds for the petition to set aside the arbitration award, and additionally will consider on its own motion whether the award violates the rule of law or good practice. The allegation that the arbitration award violates the rule of law essentially concerns the issue of the permissible scope of review of the determination by the arbitration court by the common courts. ... Such review authority does not concern the issue of the correctness of the determination in terms of compliance with substantive law, or compliance with procedural regulations. The only basis for such review may be aggravated violations, of particular seriousness and weight, such that they also constitute a violation of the rule of law. The grounds for setting aside an arbitration award are formal in nature, as it is impermissible to examine whether the arbitration court resolved the dispute correctly in factual and legal terms, but only whether there was a violation of the public policy clause.

3. Violation of the rule of law should be understood to mean an offence against fundamental legal institutions. A determination violating the rule of law would include one that offends overriding legal principles and is contrary to the commonly accepted legal order in force in the Republic of Poland. An arbitration award may violate the rule of law if it results in a determination violating the applicable principles of a state governed by the rule of law. It is essential in this respect that when considering the case and ruling, the arbitration court is not bound by provisions of substantive law, but only may not violate the applicable principles of a state governed by the rule of law.

4. There is no catalogue of fundamental principles of the legal order, but they must be inferred from the entirety of legal norms in force.

5. It is a general principle of civil law that damages are due only when the injured party has suffered a loss, the function of damages is to compensate for loss, and damages may not exceed the amount of the loss. It should thus be recognized that an arbitration award violates the public policy clause if the damages awarded do not correspond to the loss suffered.

6. In a situation where the parties failed to specify the rules of procedure, under Civil Procedure Code Art. 705 §2 the arbitration court will apply the rules of procedure it deems appropriate. It is generally not bound by the provisions of the Civil Procedure Code in this respect. For this reason as well, the arbitration court need not lay down a procedure in advance, i.e. at the outset of the proceeding. It may thus do so during the course of the proceeding, including by issuance of separate orders with respect to successive activities. This extensive discretion of the arbitration court is limited, however, by Civil Procedure Code Art. 705 §2, third sentence, by the requirement to thoroughly explore the circumstances necessary to resolve the case. It is clear in this respect that the arbitration court may not violate the principles of the rule of law or social coexistence.

7. The adversary principle, and the principle of the parties’ availability, also apply in a proceeding before an arbitration court, and such court may not omit a thorough exploration of the circumstances necessary to resolve the case. … The “inability to omit a thorough exploration of the circumstances of the case,” as referred to in Civil Procedure Code Art. 705 §2, third sentence, should be understood primarily as a duty to conduct the proceeding before the arbitration court in a manner that assures the parties themselves of the ability to present any allegations and evidence, and, as an aspect of the equal treatment of the parties, to address the allegations and evidence presented by the opposing side.

8. The fundamental principles in force under Polish law with respect to liability for loss caused by non-performance or improper performance of an obligation, as expressed by the Civil Code provisions concerning the effects of non-performance of obligations, are a duty to redress loss by the party to a contract that failed to perform or improperly performed its obligation, and, significantly, an ordinary causal relationship between the party’s action and the loss. The duty to redress loss in this respect may not be determined randomly or arbitrarily, but must correspond to the extent of the loss suffered (even if based on a consideration of all of the circumstances of the case), and default interest is due from the day following the date on which the debtor fell into delay. An arbitration award that was issued in violation of these principles is an award that violates the rule of law.

1. Violation by the arbitration court of regulations of substantive law or erroneous interpretation thereof, even if resulting in an erroneous ruling, does not in itself—even if it really did occur—constitute a violation of the fundamental principles of the legal system.

2. Civil Procedure Code Art. 1185 indicates that the consultation among the arbitrators may occur at any place (and thus even in a hospital).

3. Drawing up and signing the award is not an act that requires the preparation of minutes. As provided in §31 of the Rules [of the Court of Arbitration at the Polish Chamber of Commerce], minutes are prepared of a hearing and any act of the arbitration court. The mere physical drawing up of the text of the award is not an act of the arbitration court; it is a technical, auxiliary act, which may be performed by only one person at a time. Signing of the award, which is an act addressed to the members of the panel of arbitrators, should be analyzed similarly. Placement of a signature by each of the arbitrators is the act of the arbitrator alone, not of the panel of arbitrators. It thus does not require the preparation of minutes, which is reserved for an act of the entire arbitration court.

4. Only a violation of the “fundamental” rules of procedure before the arbitration court (Civil Procedure Code Art. 1206 §1(4)) may be grounds for setting aside an arbitration award. … Issues connected with drawing up the minutes of the consultation among the arbitrators and issuance of the award cannot be regarded as belonging to this group. Even if minutes of these actions actually should have been prepared, the lack thereof would not mean that a “fundamental” rule of procedure had been violated, but only a rule of order.

1. An arbitration clause is an agreement which is governed by the Civil Code, including Art. 58 § 2. … Such agreement requires a specific power of attorney, and thus the power of attorney granted to the other partner—and that only to arrange banking formalities—was not sufficient for conclusion of an arbitration clause, and thus the clause was invalid.

2. It is clear from Civil Procedure Code Art. 714 that in a proceeding to set aside an arbitration award the court will consider on its own initiative only one of the grounds for the petition, namely that provided in Civil Procedure Code Art. 712 §1(4), i.e. whether the arbitration award violates the rule of law or principles of social coexistence. This means that all other grounds for the petition, including that there was no arbitration clause or that the clause was invalid or ceased to be in force (Art. 712 §1(1)), will be considered by the court only if they were asserted in the petition to set aside the arbitration award.

3. There is no catalogue of the rule of law, but such principles are shaped by the case law. Merits review of an arbitration award by the state court is thus limited to an assessment of whether the award violates such principles. ... This has to do with such violations of regulations of substantive law that result in violation of the principles of the rule of law, and the arbitration award violates the leading legal principles in force in the Republic of Poland, conflicts with the legal system, or violates the principles of the political and socio-economic order.

4. Conducting an evidentiary proceeding is intended to determine a state of facts, and it is not the task of the state court to conduct a new merits assessment of the correctness of the claims pursued before the arbitration court.

5. An arbitration award holding effective a setoff in violation of Civil Code Art. 505(1), or awarding damages in a situation in which no loss was suffered, violates the principles of the rule of law.

6. Whether the assessment by the arbitration court was correct is unreviewable by the state court, but without a doubt ruling on the basis of a selective, unobjective assessment of the evidence violates the principles of the rule of law.

1. While it is true that Civil Procedure Code Art. 697–711, in the wording in force through 16 October 2005, do not contain a provision that includes the content of Art. 1185, currently in force, which provides that the arbitrators’ deliberations may occur at any place, there should be no doubt that the arbitration court also had such authority under the regulations previously in force. … The arbitrators may meet for joint discussion, conduct a telephone conference, or consult with one another through an exchange of written correspondence.

2. An arbitrator’s duty to maintain confidentiality with respect to both the content and the course of the arbitrators’ deliberations is regarded as extremely important, which is why the view should be adopted, as stated in the literature, that the obligation to maintain confidentiality excludes an arbitrator from testifying before the court as to circumstances the arbitrator learned of while performing such function.

3. Under Civil Procedure Code Art. 1206 §1(2), a demand to set aside an arbitration award may be regarded as justified if the party demonstrates that it was deprived of the ability to defend its rights in the proceeding before the arbitration court. This provision refers to the necessity in the arbitration proceeding to observe requirements concerning the principle of the equality of the parties, hearing out the parties, and the ability for a party to address evidence and allegations presented by the opposing party. … The right to equal treatment of the parties extends further than the right to be heard. This principle requires the arbitration court more specifically to assure that the parties are treated equally during the course of the entire proceeding, which means identical treatment of the parties in a similar situation. The prohibition on discrimination against either of the parties applies to the entire proceeding before the arbitration court, but in practice it applies first and foremost to the evidentiary procedure.

4. It should be regarded as a violation of the principle of equal treatment of the parties to conduct an evidentiary procedure essentially limited to the evidence presented by the claimant, including all evidence from the testimony of witnesses, while at the same time refusing to hear the witnesses indicated by the respondent, in a situation where it clearly appears from the allegations of the respondent that the witnesses will testify as to circumstances highly relevant to resolution of the case.

5. In the arbitration clause, the parties are required to identify the subject of the dispute or the legal relationship out of which the dispute has arisen or may arise. Thus as the parties in the agreement submitted to the Court of Arbitration at the Polish Chamber of Commerce disputes arising in connection with the agreement, it should be found that they had in mind not any and all disputes that might exist between them, including disputes with respect to claims for unjust enrichment, but only disputes concerning claims arising on the basis of the agreement as concluded, that is, contractual claims.

1. A judicial proceeding to set aside an arbitration award should be conducted through to the end in accordance with the provisions in force upon commencement of the proceeding, that is, applying Civil Procedure Code Art. 165 §1, at the time of filing of the petition to set aside the award with the proper court. Thus if the petition was filed prior to 17 October 2005 [when the law was amended], the proceeding thereby initiated should be conducted thereafter in accordance with Civil Procedure Code Art. 712–715, but a proceeding commenced by a petition filed on that date or later, in accordance with Civil Procedure Code Art. 1205–1211. Similarly, a proceeding before an arbitration court should be conducted through to the end in accordance with provisions in force upon commencement of the proceeding. However, in light of the rule set forth in Civil Procedure Code Art. 1186, the date of commencement of a proceeding before an arbitration court will generally be the date of service on the respondent of the document containing the demand for arbitration.

2. In instances in which arbitrators are appointed by each party independently, a new arbitrator appointed by one of the parties has the same status as the former arbitrator. Since the former arbitrator was unable to reach agreement on selection of a super-arbitrator and it was necessary for the super-arbitrator to be appointed by the court, the decision of the court in this respect could hardly be questioned just because of the appearance of a new arbitrator. There is no need to assure him an influence over appointment of the super-arbitrator, since his predecessor with an analogous status failed to make use of his opportunity in this respect.

3. There may be various reasons for loss of force of an arbitration clause. In addition to the procedural grounds listed in Civil Procedure Code Art. 1168 (previously Art. 702 §1) and Art. 1195 §4 (previously Art. 707 §2), it could also involve such events as dissolution of the arbitration agreement, occurrence of a suspensory condition, or lapse of the deadline by which an arbitration award should have been issued. Termination of the agreement containing the clause does not in and of itself constitute such grounds, however. This rule is now stated clearly by Civil Procedure Code Art. 1180, but should not have been in doubt prior to adoption of that provision.

1. [When the state court has set aside an arbitration award] it is necessary for the claimant to file a new claim before a new arbitration court, or at least a written declaration of assertion before such arbitration court of the claims in the previous scope or as amended. From such time (or, currently, from the date of service of such document on the opposing party, Civil Procedure Code Art. 1186), a new proceeding is commenced before the arbitration court which is not a continuation of the previous proceeding that resulted in the arbitration award that was set aside.

2. The petition to set aside the arbitration award ... dated 16 December 2006, filed under the new regulations, commenced a case before the state court to set aside the arbitration award, and under the rule set forth in Art. 2 of the amending act [Act dated 28 July 2005 Amending the Civil Procedure Code (Journal of Laws Dz.U. No. 178 item 1478)] it was conducted in accordance with the new regulations. This means that the petitioner should base it in procedural respects on the new regulations for such procedure provided in Part Five, Title VII of the Civil Procedure Code; however, because the subject of the petition is the award and the proceeding before the arbitration court conducted in accordance with the former regulations, on substantive legal grounds the petition may rely only on the former rules, because the arbitration court was required to apply those rules and not the new ones. The grounds for the petition should thus be based on the former regulations.

3. In light of the circumstances of conclusion of the agreement, its purpose, and the statements by the attorneys before the arbitration court ... and failure for nearly five years to assert the lack of an arbitration clause, the intent of the parties ... was, as correctly found by the courts of both instances, to submit disputes arising under the agreement to the arbitration court for resolution, and not only mediation. … This position ... does not lead to validation of the lack of an arbitration clause by the behaviour of the parties before the arbitration court and the state courts or to avoidance of the requirement for written form of an arbitration clause, but constitutes only an interpretation of the declarations of will of the parties concerning an unclear arbitration clause expressed in written form and made ... in accordance with the requirements of Civil Code Art. 65.

4. An arbitration court is not a “court” or “other state body or body of the public administration” within the meaning of Civil Procedure Code Art. 365 §1, nor is there another “instance provided by statute” in which an arbitration court is bound by the award by another arbitration court, even concerning the same parties and the same claims.

5. An arbitration award, insofar as it denies a petition in some part with legal finality, does not have res judicata effect within the meaning of Civil Procedure Code Art. 365.

1. The schedule of fees for actions of the arbitration court constituting an annex to the rules of the court in force from 1 January 2000, which does not require payment of an arbitration fee on a defence of setoff, was applicable to the case decided by the arbitration court. … As the arbitration court failed to consider the defence of setoff because of failure to pay the arbitration fee, the allegation in the appeal that the procedure before the arbitration court was not observed in the arbitration proceeding is correct. … In consequence, it should be held that the petition to set aside the arbitration award on the basis of Civil Procedure Code Art. 712 §1(3) is justified by the wording of this provision.

2. Submission of the dispute existing between the parties for resolution by the arbitration court does not justify the conclusion that the parties waive the right to a fair and thorough procedure assuring the ability to satisfy the legal interests of the parties which are worthy of protection. The right to a fair procedure is a pillar of a democratic state governed by the rule of law, and for these reasons violation of such right justifies the conclusion that the rule of law was violated. This will be the case more specifically in the event of failure to consider the defence of setoff asserted by the party as a result of the arbitration court’s application of a regulation that was not in force with respect to payment of a fee as a condition for consideration of the motion. The principle of fair procedure requires consideration of the defence of setoff duly asserted by the respondent.

1. The issue of the scope of an arbitration clause involves interpretation of the declarations of will of the parties expressed in the document, where the main role is played by rules of linguistic meaning.

2. When considering a petition to set aside an arbitration award, the state court will examine the case only with respect to the grounds listed in Civil Procedure Code Art. 712 §§ 1 and 2. The ruling by the state court is limited in this case either to setting aside the arbitration award in whole or part, or denying the petition. ... The task of the court in a proceeding initiated by a petition to set aside an arbitration award is not to determine the merits of the matter that was previously resolved by the arbitration court, applying provisions of substantive and procedural law, but only to assess the justification for the petition under the grounds set forth in Civil Procedure Code Art. 712 §§ 1 and 2. The court with which a petition to set aside an arbitration award has been filed does not act as a court of second instance, authorized to review the merits of the case applying provisions of substantive law, but reviews the challenged award only from the perspective of the violations indicated in Civil Procedure Code Art. 712 §§ 1 and 2.

3. [Civil Procedure Code Art. 712 §1(2)] refers to the necessity to comply with the principle of the equality of the parties before the arbitration court, to hear them out, and the possibility for a party to address the evidence and allegations presented by the opposing party. As stated by the Supreme Court, only if the arbitration court did not hear the party at all or did not allow it to submit its allegations can it be said that the party was deprived of the opportunity to defend its rights.

4. Pursuant to the rule set forth in Civil Procedure Code Art. 705, in a proceeding before an arbitration court the parties have the right to establish the rules of procedure themselves. Their determination of the procedure may occur in the arbitration agreement or in an additional agreement, but no later than the time the proceeding is commenced. Lack of agreement by the parties means that the right to select the arbitration procedure passes to the arbitrators, as if they were assuming the rights of the parties.

5. A ruling by an arbitration court may not be challenged because of erroneous decision of the case in legal or factual terms. Violation of the law may be grounds for setting aside an arbitration award only if the content of the ruling violates the rule of law or principles of social coexistence. Assessment of whether the ruling violates the rule of law or principles of social coexistence is formulated narrowly, and such conclusion may be reached only if the arbitration award would result in a material violation of such principles.

1. It should be borne in mind that the arbitration court, which is not bound by provisions on procedure before the court (Civil Procedure Code Art. 1184 §2), has greater discretion than in a civil proceeding shaped by the Civil Procedure Code.

2. The arbitration court ... took evidence on its own initiative from the review of the websites and a review of the search capabilities of the Google Internet search engine with respect to the words in dispute ..., without being requested to do by the parties to the proceeding and without citing specific circumstances of the case justifying such initiative by the court, but in the view of the Appellate Court this does not constitute a serious violation of the adversary principle.

3. Taking evidence not in compliance with the rules set forth in Civil Procedure Code Art. 235–237 ... is not equivalent to violation of fundamental rules of procedure within the meaning of Civil Procedure Code Art. 1206 §1(4), which limits the ability to set aside an arbitration award to the principles of a fair trial and procedural violations material enough that they could influence the arbitration award.

4. An arbitration award will also be set aside if the award is contrary to fundamental principles of the legal order of the Republic of Poland. … This does not have to do with internal inconsistency of the form of the ruling, i.e. inconsistency between the specific parts of the ruling. This provision, which is an exception to the rule that when considering a petition to set aside an arbitration award, the state court generally does not review the resolution by the arbitration court on the merits, and in particular does not review whether the award is founded on the facts cited in the justification or whether such facts were correctly determined (as it is undisputed that arbitrators should have greater discretion than a state court in interpreting and applying the law), restricts substantive review of arbitration court rulings only to instances of violation of the principles of the legal order, i.e. instances where the effects of the arbitration court ruling would cause a material violation of such principles, which should be understood to mean the principles of the political and socioeconomic system. This means that the state court proper to consider the petition may not consider the substantive side of the dispute..., and an allegation of violation of specific provisions of substantive law may be effective only insofar as the violation of specific norms also violates the principles of the legal order.

1. An allegation under Civil Procedure Code Art. 712 §1(2) refers to deprivation of a party’s right to a defence only before the arbitration court, and thus it could not serve in this respect as independent and effective grounds for a cassation appeal, which may involve a challenge to the correctness of the proceeding before the state appellate court, but not in an arbitration proceeding.

2. There is a consensus that the authority to review [a ruling of an arbitration court by a state court] does not involve the issue of the correctness of the ruling in terms of its compliance with substantive law, or compliance with procedural regulations. The basis for such review may only be an aggravated violated of particular importance and weight—of the sort that also constitutes a violation of the rule of law. By no means may such review turn into a form of appellate review of the merits.

3. A petition to set aside an arbitration award is in ... the nature of an extraordinary legal instrument based on very narrowly defined grounds, which do not include undue explanation of the circumstances necessary to resolve the matter. Thus it must be concluded that violation of Civil Procedure Code Art. 705 §2, third sentence, may also provide grounds for a petition under Civil Procedure Code Art. 712 §1(4) only when it is of an extreme nature, and thus when it takes the form of complete omission of an explanation of the circumstances of the case or ignoring the evidence as a whole.

4. An arbitration court may not take into consideration facts not cited by the parties, or presume that the claimant’s allegations are true if the claimant fails to appear at the hearing, or assume facts to be true if they are not denied.

1. Arbitration is a procedure for resolving civil disputes by a decision-making body that is not a state court, but its jurisdiction is based on an agreement of the parties. For this reason, Art. 45 of the Polish Constitution, which refers to state bodies of the justice system identified in Constitution Art. 175(1), does not apply directly to arbitration.

2. When considering a case, an arbitration court is not bound by general regulations of procedural law applicable in a judicial proceeding, if the parties or the arbitration court have not otherwise provided for the procedure.

3. The indication in the second sentence of Civil Procedure Code Art. 1184 §2 that an arbitration court is not bound by judicial procedure regulations does not refer to mandatorily applicable provisions of the Civil Procedure Code governing procedure before the arbitration court. … Unless otherwise agreed by the parties, the arbitration court may conduct the proceeding as it deems fit, but subject to the provisions of the act. The rule of the priority of the intent of the parties in establishing the arbitration procedure, under Civil Procedure Code Art. 1184 §1, is subject to a limitation in that their selected manner of proceeding before the arbitration court may not be contrary to provisions of the law of the state which they selected that are in force in such a proceeding. The wording of Art. 1184 §1 (“if not otherwise provided by the act”) means that the parties may not, by their intent, change or exclude such provisions, and thus they are regulations of mandatory applicability [juris cogentis].

4. A state court considering a case upon a petition to set aside an arbitration award does not decide the dispute between the parties, and thus does not assess whether the arbitration court decided the case correctly in factual or legal terms, but only examines it from the point of view of grounds to set aside the award set forth in Civil Procedure Code Art. 1206.

5. Violation by the arbitration court of rules and regulations of the Civil Procedure Code binding on it governing arbitration procedure may provide grounds for a petition to set aside the arbitration award on the basis of failure to comply with fundamental rules of procedure before such court, arising under the act referred to in Civil Procedure Code Art. 1206 §1(4).

1. Under Art. 2 of the amending act [i.e. the Act dated 28 July 2005 Amending the Civil Procedure Code, Journal of Laws Dz.U. No. 178 item 1478], proceedings before arbitration courts and proceedings before courts for recognition or enforcement of an arbitration award, as well as a petition to set aside an arbitration award, commenced prior to the effective date of the act, are conducted in accordance with the prior regulations.

2. The view of the petitioner cannot be upheld under which [the other party], pursuant to Civil Procedure Code Art. 4791⁴ §2, was required to assert the defence of the lack of the required power of attorney in the response to the petition filed with the arbitration court, at the latest. Under Civil Procedure Code Art. 705, in a proceeding before an arbitration court, the parties themselves could, up until commencement of the proceeding, establish the procedure that should be applied in consideration of the case, and if they failed to do so, the arbitration court applied the procedure that it saw fit and was not bound in this respect by civil procedure regulations.

1. The arbitration court is subject only to the provisions of the Civil Procedure Code that govern procedure before the arbitration court. For this reason, a violation of general provisions of civil procedure law or overriding principles of civil procedure may serve as grounds for setting aside an arbitration award only if it results in violation of fundamental principles of the legal order of the Republic of Poland or principles of social coexistence.

2. A violation of the rule of law or principles of social coexistence as referred to in Civil Procedure Code Art. 712 §1(4) must be part of the content of the ruling itself, and thus it is insufficient if the violation occurred in the proceeding before the arbitration court.

3. If the arbitration court ignores evidence offered by a party because the arbitration court deemed the evidence unnecessary, that will not be regarded as depriving the party of a defence. The state court’s review of whether the arbitration court correctly found the evidence to be unnecessary would constitute impermissible intrusion into the merits of the case.

1. As a rule, the right to a defence in a proceeding before an arbitration court may also be violated by preventing proof of allegations or defences. Mere submission of statements and expression of a position is primarily relevant to explanation and interpretation of legal issues, and may be insufficient for establishing the factual grounds for a decision which is after all not subject to appellate review. It should be added that this has to do with proof of circumstances that in the view of the arbitration court are highly relevant to the decision.

2. The rules of the arbitration court did not provide for expansion of the statement of claim, nor did they prohibit it. In such case, the inability to repeat the procedure for selection of arbitrators should, in the view of the Appellate Court, be assessed in light of the type of demand. If this really had to do with a claim not related to the existing claim, but requiring special qualifications of the panel, it could be concluded that there was an infringement of fundamental rules of procedure resulting in setting aside of the award in such part.

3. An untrue statement in a document later offered in evidence by a party is not ... grounds for a petition to set aside an arbitration award under Civil Procedure Code Art. 1206 §1(5).

4. An arbitration court is not bound by provisions of substantive law. This means that arbitration awards may be reviewed only within a limited scope. Setting aside an arbitration award is thus justified only by an infringement of substantive law that would also bring the decision into conflict with the overriding legal principles in force in the Republic of Poland. In other words, an arbitration award may be unlawful if it results in a decision that violates controlling principles of the rule of law.

5. Existence of the grounds set forth in Civil Procedure Code Art. 1206 §2(2) is not determined by the number of provisions violated but by the relation between a specific violation of law to the narrowly defined principles of the legal order of the Republic of Poland.

1. An arbitration agreement, even when set forth in a clause in the “main” agreement, is not a provision of the underlying contract and thus its effectiveness is considered independently.

2. In order to make an arbitration agreement, a generic power of attorney is sufficient (specifying the type of actions which the attorney-in-fact is authorized to take), or a general power of attorney if making the arbitration agreement may be deemed to be an act within the ordinary course of business.

3. The importance of an arbitration agreement concerning a specific legal relationship is a reflection of the importance of the legal relationship subject to the arbitration agreement. There are no grounds for finding that contractual exclusion of the jurisdiction of the state courts, even in the case of a matter that is petty in relation to the subject of the enterprise, is outside the ordinary course of business. Such assumption would hinder the parties’ ability to submit a dispute to the jurisdiction of the arbitration court, which would be inconsistent with the requirements of commerce, and would also create uncertainty in trade. Similarly, an arbitration agreement may be concluded on the basis of a generic power of attorney, which should specify the type of legal acts included within the authority as well as the subject matter. If the type of legal acts was not clearly defined, the canons for interpretation of declarations of will (Civil Code Art. 56 and 65) are applicable in order to determine the true intent of the principal.

4. Under Civil Procedure Code Art. 712 §1(3), a party may seek to set aside an arbitration award if procedures were not followed before the arbitration court as determined by the parties or by the law, particularly provisions concerning the composition of the arbitration court, voting, removal of an arbitrator, and the award. There could be no violation of the procedure established by the parties when, as the appellant itself states, the parties did not establish any procedure. Only establishing the procedure in the agreement creates a duty on the part of the arbitrators to comply with the procedure, under sanction of setting aside the arbitration award if the procedure is not followed (Civil Procedure Code Art. 705 §1 and Art. 712 §1(2)). Otherwise, the arbitration court will apply the procedure it deems fit (Civil Procedure Code Art. 705 §2).

1. The limitation of the scope of review of an arbitration award to the grounds set forth in the act, but also those on which the petition to set aside the arbitration award is based, is subject to the exception of the duty of the [state] court, expressly provided in Civil Procedure Code Art. 714, to review on its own motion whether a violation of law by the arbitration court resulted in issuance of an award that violates the legal order or principles of social coexistence.

2. In a proceeding to set aside an arbitration award, the subject of the case is clearly the review of the award within the grounds of the mandatory provisions of the Civil Procedure Code, and the subject of the proceeding may not be regarded as falling within the scope of the business activity of any business entities.

3. A proceeding to set aside an arbitration award is a distinct type of proceeding, containing elements of a cassation proceeding, but the reference set forth in the mandatorily applicable rule of Civil Procedure Code Art. 715 does not justify application, even only as relevant, of the code provisions concerning the procedure in commercial cases, because the subject matter and function of the two types of proceedings are completely different.

1. An arbitration court is not bound by the civil procedure regulations, but may not avoid conducting a thorough examination of the circumstances necessary to decide the case. Thus it is stated in the literature that in a proceeding before an arbitration court the provisions of the Civil Procedure Code concerning appointment of attorneys do not apply, and more specifically it is possible to appoint as attorneys persons other than those referred to in Civil Procedure Code Art. 87, and moreover there is no specific form required for a power of attorney to appear before an arbitration court, and the scope, duration and effects of the appointment should be assessed pursuant to civil law.

2. In an arbitration clause the parties may exclude representation by an attorney and require participation in person before the arbitration court.

3. With respect to service, it is accepted ... that the arbitration court is not bound by the procedure or form for service provided in the Civil Procedure Code and may use the procedure for summoning parties, witnesses and experts that it deems proper and effective. This applies as well to service of an arbitration award under Civil Procedure Code Art. 709. While not bound by provisions of the Civil Procedure Code, the arbitration court must nonetheless insure procedural rules that afford the party an opportunity to present a defence.

4. In a public procurement procedure conducted under the Public Procurement Law dated 10 June 1994 (unified text at Journal of Laws Dz.U. 2002 No. 72 item 664, as amended), the award by a panel of arbitration shall be served on appointed counsel.

1. It is correctly accepted in the literature that even if there are doubts as to the scope of matters covered by an arbitration clause, under the principle of interpretation in favour of the contract (favor contractus), which is enshrined in many modern legal systems (e.g. Polish Civil Code Art. 58 §3, Napoleonic Code Art. 1157, Italian Civil Code Art. 1367), it would be resolved in favour of extending the clause to disputes under a promissory note issued to secure performance of the underlying agreement.

2. Application of regulations concerning a proceeding for order for payment (Civil Procedure Code Art. 484¹–497) is not excluded in a proceeding before an arbitration court.

3. The only rules of the Civil Procedure Code which the parties may not exclude or modify in the procedure before the arbitration court are the mandatorily applicable provisions of Book Three of the Civil Procedure Code, concerning the arbitration court.

The arbitration court’s violation or incorrect interpretation of substantive law, and the resulting defect of the ruling, in and of itself does not constitute a violation of the rule of law. A violation of substantive law must be such that it would result in issuance of a ruling that would by its content violate fundamental principles of the rule of law. The fact that the case concerns public procurement paid for out of public funds does not change this assessment and does not mean that violation of any of the provisions of [the Public Procurement Law] constitutes a violation of the rule of law.

1. Civil Procedure Code Art. 705 §2 specifies the procedure only before the arbitration court, as demonstrated at least by its placement in Chapter 3, Title 3 of the Civil Procedure Code, containing regulations governing the procedure before the arbitration court. Thus because Art. 705 §2 imposes specific duties only on the arbitration court, it could not be violated by the court of second instance, which is a state court.

2. Civil Procedure Code Art. 714 defines the bounds of action by the common court hearing a petition to set aside an arbitration award, based on the grounds listed in Art. 712 §1. It is thus clear that Art. 714 defines the bounds of the action of the common court, but it is the court hearing the case in the first instance. Thus the allegation of violation of Art. 714 cannot be addressed directly to the court of appeal, which is a court of second instance.

3. The regulations of the Civil Procedure Code concerning the procedure before the arbitration court do not contain a requirement that the arbitration court is absolutely bound by the rules of substantive law when it considers the merits of the dispute. Art. 712 §1(4) and a linguistic interpretation thereof justify the conclusion that it is the duty of the arbitration court to apply imperative legal norms whose violation would also violate the rule of law or principles of social coexistence.

4. Even violation of norms of substantive law by the arbitration court will not always be tantamount to violation of the rule of law or principles of social coexistence, because it will depend on the circumstances of the specific case.

5. Civil Procedure Code Art. 712 §1(4) will be met only by a violation of substantive legal norms, even those of a peremptory nature, made by the arbitration award, as a result of which the ruling by the arbitration court will also cause a clear violation of the overriding principles of the legal order in force in the Republic of Poland, or conflict with clearly defined principles of social coexistence.

6. There may be said to be a violation of systemic statutes having such effect with respect to statutes governing the system and principles for functioning of the State as a whole or its highest bodies, but not the functioning of one specific local governmental unit.

1. An arbitrator who is called upon to decide a dispute between the parties to a contract under a clause inserted in that contract is not to be considered as a “court or tribunal of a member state” within the meaning of Article 177 of the Treaty where the contracting parties are under no obligation, in law or in fact, to refer their disputes to arbitration and where the public authorities in the Member State concerned are not involved in the decision to opt for arbitration and are not called upon to intervene automatically in the proceedings before the arbitrator.

2. If in the course of arbitration resorted to by agreement between the parties questions of community law are raised which the ordinary courts may be called upon to examine either in the context of their collaboration with arbitration tribunals or in the course of a review of an arbitration award, it is for those courts to ascertain whether it is necessary for them to make a reference to the court of justice under Article 177 of the treaty in order to obtain the interpretation or assessment of the validity of provisions of community law which they may need to apply in exercising such functions.

As the arbitration court is not even required to rule on the basis of provisions of substantive law, an erroneous interpretation thereof cannot be regarded as a violation of the rule of law. Nor may the arbitration court be required not to apply regulations involving the statute of limitations and preclusion. More justified would be the opposite view, that failure to apply such regulations, which were enacted primarily in the interest of protecting the legal order—not disturbing settled matters (quieta non movere)—and entering an award for time-barred claims, could justify an allegation of violation of the rule of law.

A petition to set aside an arbitration award may be based on the same grounds that provide the basis for reopening a proceeding. Under Civil Procedure Code Art. 403 §1, reopening of a proceeding may be sought on the grounds that the judgment was based on a forged or altered document. However, this does not apply to a situation in which the allegation of forgery of the document was raised in the earlier proceeding and found by the court to be groundless. In such situation, a petition to reopen the proceeding may be based on newly discovered facts or evidence (Civil Procedure Code Art. 403 §2) demonstrating that the court’s conclusion as to the authenticity of the document was erroneous, or upon discovery of a legally final criminal conviction for forging or altering the document.

1. It is permissible to make arbitration clauses with respect to disputes involving property claims between entities of the socialized economy and non-socialized domestic entities.

2. In Art. 509 and 510 §1(4), the Civil Procedure Code permits a situation in which an arbitration court does not apply governing law, by not carving out any exceptions with respect to the types of parties. But if in its determination the arbitration court committed a violation of mandatorily applicable regulations or principles of social coexistence, such an award would be subject to being set aside (Civil Procedure Code Art. 509 and 510 §1(4)).

1. An arbitration clause is a contract within the meaning of the Obligations Code and with respect to its validity is subject to the general regulations of the code concerning contracts. Thus Art. 52 §2 should also apply to an arbitration clause, under which despite the invalidity of one provision of the clause the clause generally remains in force, and the plaintiff wishing to demonstrate the invalidity of the entire clause had to prove that without the invalid provision the clause would not have been concluded.

2. For purposes of Civil Procedure Code Art. 480 §1, a dispute is defined precisely when the circumstances identifying the dispute are set forth in the arbitration clause.

3. Civil Procedure Code Art. 494 §2 does not require the arbitration court to establish all of its procedures in advance. On the contrary, the arbitration court establishes its procedure also for purposes of Art. 494 §2 when it issues specific orders necessary to conduct the proceeding, as the need arises, i.e. separately for each procedural measure.

4. The arbitration court is not bound by provisions of substantive or procedural law. ... The only limit on its discretion when ruling is public policy, which the substance of the ruling must not violate.

1. If an arbitration clause requires written form, and a power of attorney to conclude such clause may be issued only in writing, then ratification of the clause also requires written form.

2. The general provisions of the Civil Procedure Code concerning hearing of cases are not binding on an arbitration court; only the provisions of the code governing the procedure before such court (Art. 494–500) are binding.

1. It cannot be accepted ... that since the arbitration court decided to apply the regulations of the Civil Procedure Code in its proceedings, any failure to apply such regulations calls for setting aside the arbitration award. ... Requirements may not be imposed on the arbitration court that are stricter than those imposed on the state court.

2. Recusal is ruled on by the arbitration court, in which the presiding arbitrator or other arbitrator whose recusal is sought cannot be replaced by another judge, as in the state court; in the case of removal of the presiding arbitrator or one of the other arbitrators, the arbitration court would not be able to function at all.

3. Since the parties agreed to arbitration, and the arbitration agreement is binding on them, one party may not do anything by act or omission to prevent arbitration. Thus if a party refuses to appoint an arbitrator, the other party may apply to the state court to appoint an arbitrator, and if the arbitrators appointed by the parties, who may act in this respect in accordance with the wishes of the parties, do not reach agreement on appointment of a presiding arbitrator, a party may apply to the state court to appoint a presiding arbitrator.

4. The matter is different if the arbitration court cannot be empanelled or the arbitration cannot be held, without fault of the parties, or if the arbitration court cannot be empanelled in the composition or manner to which the parties agreed and expressed their intent in the arbitration clause. If, for example, the clause provides that the presiding arbitrator is to be selected mutually by the parties, but such agreement cannot be reached, the state court may not appoint the presiding arbitrator, as this would violate the clause, which in such case lapses and ceases to be in force. Similarly, if the clause provides that in the event of a lack of agreement by the arbitrators on selection of the presiding arbitrator, the presiding arbitrator is to be appointed not by the state court but by another institution or person, and such person or institution cannot appoint or refuses to appoint the presiding arbitrator, the arbitration court cannot be empanelled, without fault of the parties, and the parties may not be forced to submit the case to an arbitration court empanelled in a manner other than provided for in the clause. The Civil Procedure Code does not contain any provision under which in such case the state court could take the place of the institution or third party indicated in the clause. The clause thus lapses in this case as well. Of course, both parties may mutually amend the clause in the manner provided by law.

1. Arbitrators are not bound by provisions of procedural law, as they may specify the procedure to be followed within their own discretion (Civil Procedure Code Art. 494 §2), nor are they bound by provisions of substantive law in deciding the case.

2. An arbitration court rules in accordance with general principles of equity and fair commercial practice, and may not be constrained by provisions of substantive or procedural law, and thus the Parliament provides in Civil Procedure Code Art. 503 for the ability to set aside an arbitration award only in exceptional instances, and such provisions are subject to a strict interpretation, not an expansive interpretation.

3. The state court is not competent to delve into allegations of violation of provisions of substantive law or general provisions of procedural law applicable in a judicial proceeding, nor does it have the right to enter into the merits of the resolution by the arbitration court....

The Civil Procedure Code does not contain a provision concerning auxiliary intervention in a proceeding before an arbitration court. If the parties do not specify the procedure themselves before the arbitrators take up their duties, the arbitration court shall specify the procedure in its own discretion (Civil Procedure Code Art. 494 §2), and in that case may apply the regulations of the Civil Procedure Code if not prohibited by the special regulations concerning arbitration or by the nature of this separate form of proceeding. As an intervenor is not a party, there is no fundamental barrier to admitting an auxiliary intervenor, even over the objection of the parties (Civil Procedure Code Art. 75), particularly if it does not violate the arbitration clause, because admission of an intervenor does not admit a new party to the dispute.

1. If the parties have not specified the procedure, the arbitration court shall specify the procedure in its own discretion. In this respect, the arbitration court is not subject to any restrictions other than those set forth in the act ([Civil Procedure Code] Art. 503 §1(3)), i.e. in the regulations concerning procedure before the arbitration court (Art. 497–502). These regulations do not require the arbitration court to specify its procedure in writing, nor do they prohibit the arbitration court from changing the procedure it has adopted for another procedure, and, finally, they do not prohibit the arbitration court from departing in certain instances from the procedure it has previously specified.

2. The place of issuance of an award is the place identified by the arbitration court in the award. Stating as this place the place in which the award was handed down within the meaning of [Civil Procedure Code] Art. 497 is recommended; however, so long as the arbitration court is not bound by the procedure specified by the parties themselves (Art. 494 §1), it may determine in its own discretion which place to identify in the award as the place of issuance of the award, so long as it is not contrary to the rule set forth in Art. 497. Such a decision by the arbitration court may fall within the scope of specifying the procedure.

3. The regulations in the act concerning procedure before the arbitration court ([Civil Procedure Code] Art. 494–502) do not contain provisions on announcement of the award, and it may thus be issued without announcement. Nor does the act tie any consequences to announcement of the award, which it does not provide for announcement of at all. Consequences are, however, tied to service of copies of the award, as specified in Art. 500 §1, and under Art. 504 §1 a petition to set aside an arbitration award must be filed within one month after service of the award. The date of issuance of an award is therefore not the date of its announcement.

4. The very act of issuance of an award by the arbitration court is not identical with signing of the written formulation of the resolution of the relief sought by the parties and the reasons for the resolution. Both the literal wording and the substance of the provisions set forth in [Civil Procedure Code] Art. 498 and 499 lead to the conclusion that the time of issuance of an award is the time when the arbitration court took a final decision on what the resolution of the relief sought by the parties would be, and for what reasons, and when to this end the award was handed down within the meaning of Art. 497. The award is not yet in force, but enters into force only when it is made in writing, contains all the information required by Art. 498, and is signed by the arbitrators in the manner provided in Art. 499; nonetheless, the award already exists, it has already been “handed down” and thus was “issued.”

1. Any person against whom an arbitration award is effective within the meaning of § 1040 of the [German] Civil Procedure Code may seek a ruling on the permissibility of execution. It is true that this provision states that res judicata operates between the parties. Nonetheless, from the nature of an arbitration award as a result of an agreement the conclusion should be drawn that the scope of res judicata is defined by the agreement of the parties, and thus an assignee may assert the adjudged claim to the same extent as the assignor, and should enjoy all the effects of such claim, and should be entitled to rely on the res judicata effect awarded to the assignor.

2. An arbitration proceeding is not concluded until all of the conditions set forth in § 1039 of the [German] Civil Procedure Code have been fulfilled, and therefore it is permissible to supplement an arbitration award up until the closing of the hearing at the first level of appeal in a dispute pursuant to § 1042 of the [German] Civil Procedure Code.

3. §§ 80 ff. of the [German] Civil Procedure Code do not apply in a proceeding before an arbitration court. Thus the question is not whether the officials appearing before the arbitration court held a formally issued power of attorney, but whether the defendant endorsed their action before the arbitration court.

4. Joining issue in the dispute before the arbitration court constitutes waiver of any defences of defective proceeding as to which the party did not raise specific objections.

1. Under the Civil Procedure Code, a proceeding to set aside an arbitration award is a sui generis proceeding, but, as it appears from Art. 503, it is similar to a cassation proceeding, because of the strict enumeration in this article of the grounds for setting aside an award, and then by the procedure in the courts of first and second instance, when the courts are authorized only to determine whether the arbitration award contains violations provided for in Art. 503. Thus amending and expanding the grounds for the petition cannot be permitted, and only the allegations raised in the petition may be considered.

2. An arbitration award should be justified in accordance with Civil Procedure Code Art. 498(5), but it does not follow from this provision that the justification must be issued at the same time as the operative wording of the award. … In accordance with the final paragraph of Civil Procedure Code Art. 499 §2, an award signed by a majority of the arbitrators has the same force as one signed by all of the arbitrators.

3. In Civil Procedure Code Art. 503 the Parliament provided that an arbitration award may be set aside only in exceptional circumstances, and these provisions are not subject to an expansive interpretation. Thus the state court is not authorized to enter into consideration of allegations concerning violation of provisions of substantive law or general provisions of procedural law applicable in a judicial proceeding, nor does it have a right to enter into a determination of the fairness of the award or the correctness of the factual findings or grounds on which the award was based.

The arbitration court is entitled to delegate one of the arbitrators to take the testimony of witnesses, and the arbitrator so delegated may take the testimony in the absence of the parties and without recording formal minutes.

The fact that one of the arbitrators served the arbitration award on the defendant in his residence, and the defendant after reading the award left it with the arbitrator without acknowledgement, promising to take the award back after payment of the fee due to the arbitrator, does not yet constitute service of the arbitration award within the meaning of § 592 of the [former Austrian] Civil Procedure Code.

1. The state court could only either find the arbitration award enforceable in its entirety or refuse to find the award enforceable also in its entirety, as it is not the place of the state court in considering a case seeking recognition of an arbitration award as enforceable to review which of the reasons behind the award are justified or unjustified, or which item in an accounting was proved or acknowledged by a party, or to enter at all into consideration of the merits of the dispute.

2. The arbitration court may apply § 319 of the [former German] Civil Procedure Code, i.e. correct obvious errors of calculation, typographical errors or the like. It may not, however, amend its material content after service of the award on the parties, unless both parties consent to such amendment.

3. Resignation of appointment is a declaration by arbitrators that they refuse to perform their duties, that they renounce the agreement with the parties obliging them to resolve the dispute.

4. In light of the declaration by the arbitrators in the presence of the parties that they resign their appointments, and thus renounce the agreement to perform the duty of arbitrators, pursuant to § 1033 of the [former German] Civil Procedure Code the arbitration agreement ceased to be in force, and expired.

5. In light of expiration of the arbitration agreement, the arbitrators who resigned their appointments had no legal basis to take up their rights and obligations again upon the unilateral request of the plaintiff without the consent of the defendant, as they did.

1. In the event of the death of the claimant or the defendant, the actions of the arbitration court cease, and thus the arbitration court ceases to exist, and any act taken by the arbitrators after the death of a party cannot be regarded as an act of the arbitration court.

2. Cessation of the action of the arbitration court pursuant to Art. 1384(2) of the [former Russian] Civil Procedure Code also occurs when one of several claimants or defendants dies.

The task of the arbitration court is to hear the parties in order to develop a proper view of the whole case, and it is not necessary to hear the parties when they both present or for them to present mutual testimony, because apart from §§ 598–599 of the [former] Austrian Civil Procedure Code the arbitration court is not bound by civil procedure regulations. It may be persuaded of the truth or falsity of the parties’ claims and allegations according to its own free conviction and does not need to present the parties with their mutual testimony or hear them when they are both present.

The issue raised in the review of what will happen if the Land Office refuses permission to acquire the real estate identified in the arbitration award does not fall within the purview of the courts in this dispute, as it concerns the correctness of the arbitration award on the merits, and comprises an allegation of the erroneous assessment of the award, and therefore it cannot justify any of the grounds of ineffectiveness from §595 of the [former] Austrian Civil Procedure Code.

1. §577 of the [former Austrian] Civil Procedure Code, stating that the arbitration clause is legally effective if the parties are competent to conclude a settlement with respect to the matter in dispute, does not exclude at all the possibility of a third party joining the dispute before the arbitration court, when the parties who prepared the given arbitration clause consent thereto—even if only implicitly—and express their trust in the third party in such implicit manner.

2. The plaintiff’s challenge to the procedure followed by the arbitration court, specifically that despite a change in the composition of the panel because of a new presiding arbitrator, the arbitration court failed to conduct the entire hearing again before the new panel, that it did not hear the witnesses or the parties but limited itself to using the evidence admitted previously, is ineffective, because unless otherwise agreed by the parties the procedure before the arbitration court is designated by the arbitrators themselves, within their free discretion (§587 par. 1 of the [former Austrian] Civil Procedure Code).

3. A ruling on the costs of the dispute does not violate §595(5) of the [former Austrian] Civil Procedure Code because the issue of costs is closely connected with the principal claim and should be covered by the award, and the party on which to impose the obligation to pay the costs depended on the arbitration court’s discretion.

As pursuant to §577 par. 3 of the [former Austrian] Civil Procedure Code an arbitration agreement must be concluded in writing, the prior oral appointment of arbitrators has no legal significance whatsoever, and no intent of the parties can shift the effectiveness of the written agreement back to an earlier date. Prior to the written agreement, neither the arbitration court nor the arbitrators exist, and even express waiver of the objection of the invalidity of the arbitration award on these grounds would be ineffective (§§ 595 and 598 of the [former Austrian] Civil Procedure Code).

Use of a default procedure patterned on the Civil Procedure Code is impermissible before the arbitration court. Notwithstanding a party’s failure to join issue in the dispute, the arbitration court has a duty to determine and assess the state of facts, and only within those limits may it use the party’s failure to proceed as grounds for accepting disputed facts to be admitted to be true.

1. The Supreme Court does not share the legal view that because of dispatch and service of a copy of the arbitration award on the plaintiff after 10 May 1927, the award in question should be regarded as not having been issued during the period specified in the submission to arbitration, and thus invalid. Because the award was adopted by all three arbitrators and signed by them prior to 10 May 1927, the award must be regarded as issued on time, regardless of when it was served on the parties.

2. The award in question is invalid because the plaintiff was not heard by all three arbitrators prior to resolution of the case covered by the submission to arbitration.

1. It cannot be assumed that the parties, when not only certain of their rights and obligations arising out of the legal act in question are challenged, but the legal act as such, did not intend to make use of the assistance of the arbitration court. Therefore, despite the invalidity (not to mention the ineffectiveness) of the deed itself, the arbitration clause, only mechanically connected to the deed, remains in force.

2. Unless otherwise provided by the parties, the arbitration court is not bound by procedural regulations, particularly the provisions of the [former German] Civil Procedure Code, when hearing the case submitted to it.

3. An arbitration award must set forth the reasons; that is, it must contain an objective justification for the operative wording of the award issued. Whether such justification is accurate, exhaustive or consistent with the state of facts cannot be reviewed by the common court under §1041 of the [former German] Civil Procedure Code, because it is not an appellate instance with respect to the arbitration court.

1. While the arbitration court is not bound in its procedure by civil procedure regulations ([former Austrian] Civil Procedure Code § 587), nonetheless the bounds of the task of the arbitration court must be designated (see [former Austrian] Civil Procedure Code § 595(5)).

 2. In the absence of the defendant (in an arbitration court) the relief sought may not be amended and arbitrarily determined relief granted against the defendant without notice to the defendant. … Such procedure violates the mandatorily applicable rule of [former Austrian] Civil Procedure Code § 587 of the necessity to hear out the parties or give them at least the opportunity of a defence, and renders the arbitration award ineffective ([former Austrian] Civil Procedure Code § 595 (2) and (5)).

The fact that the procedure under provisions concerning arbitration courts does not contain an express provision on the costs of the dispute does not justify a finding that the arbitration court is not authorized to rule on the costs of the dispute. In any event, such provisions do not contain a prohibition in this respect, and [former Austrian] Civil Procedure Code § 577, which provides that a private law claim may be submitted to an arbitration court for resolution, also includes the authority to rule on the costs of the dispute as an auxiliary element combined with the resolution itself.

1. An arbitration court is not a state institution, but operates on the basis of an agreement by the parties ([former Russian] Civil Procedure Code Art. 1367), and thus the regulations on the official language, in force in state offices, do not apply there.

2. For an award written by the arbitration court in a foreign language, in order to obtain a writ of enforcement, which must be issued only in Polish, it is necessary to submit a duly certified translation, which will serve as the basis for the judicial actions connected with issuance of a writ of enforcement and enforcement of the award.

1. Only the arbitration court, and not a party, is authorized to submit a demand for legal assistance.

2. With respect to the form of the award and evidentiary measures, the arbitration court is not bound by civil procedure regulations.

An arbitration award may be served on a party who has departed to a place unknown after issuance of the award, via a guardian for an absent person, appointed by the court for this purpose.