arbitration-poland.com - Key Issues - arbitrability of dispute

Warsaw Court of Appeal judgment dated 26 November 2019 Case No. I ACa 457/18

1. [P]rovisions in force at the time when an arbitration agreement was concluded decide on the validity and effectiveness thereof.

2. The provisions of the European Union law are a part of the Polish legal order, which is examined ex officio under Art. 1206 § 2 point 2 of the PCPC . The case law of the European Court of Justice/the Court of Justice of the European Union has determined unequivocally that the EU competition law regulations are a part of the legal order which must be taken into account by state courts in the course of their review of arbitration awards according to the principle of equivalence.

3. According to the established case-law of the European Court of Justice/the Court of Justice of the European Union, the principle of equivalence of the European Union law requires that if domestic procedural principles require a state court to grant the claim to set aside an arbitration award based on an allegation of violation of the domestic principles of the legal order, such a court is also obliged to grant the claim to set aside such an award, if it is based on an allegation of violation of the European Union principles of the same kind… .

4. [O]bligations imposed on the state court in connection with the application of Art. 108 (3) of the Treaty on the Functioning of the European Union shall also extend to arbitral tribunals.

Data wydania: 26-11-2019 | Sygnatura: I ACa 457/18

Key issues: arbitrability of dispute, arbitration agreement, petition to set aside arbitration award

id: 20593

Polish Supreme Court order dated 4 April 2019 Case No. III CSK 81/17

1. [T]he concept of an ‘agreement in writing’, whereunder parties undertake to refer a dispute to arbitration, has been explained as meaning both an arbitration clause contained in a contract (i.e. relating to disputes which may arise in the future) as well as a compromise, i.e. an agreement to refer a dispute to arbitration concluded after a dispute has arisen.

2. [D]evelopment of means of distance communication results in acceptance of the viewpoint that the intent of Art. II (2) sentence 2 of the New York Convention is fulfilled also if a declaration of will is made by new technical methods, including an exchange of e-mails or faxes. In any of these situations, however, two requirements need to be fulfilled. Firstly, since we are dealing with a contract, it is necessary for each of the parties to clearly express its will to refer the dispute to arbitration, which is tantamount to acceptance of exclusion of a case from jurisdiction of a state court. Secondly, mutual acceptance of the idea to refer a dispute to arbitration is not sufficient. It is necessary for the parties to make a declaration of will in a way that fulfils the requirement of written form within the meaning of Art. II (2) sentence 2 of the New York Convention.

3. To conclude an ‘agreement in writing’ within the meaning of Art. II of the New York Convention it would be also necessary in the situation at hand to make another declaration, whose content would express the will of the contractor agreeing to having a case recognized by an arbitration court. Only then it could be possible to say that was ‘an exchange of letters or telegrams’ (also faxes, e-mails, etc.) within the meaning of Art. II (2) sentence 2 of the New York Convention, understood as documents referring or corresponding to each other and containing consistent declarations of will of the parties to refer a dispute to arbitration. This criterion is not fulfilled, if the parties correspond with each other about matters related to the contract, but from the content of this correspondence it does not follow that an ‘exchange’ took place within the meaning of Art. II (2) sentence 2 of the New York Convention, so an ‘exchange’ of declarations concerning establishment of jurisdiction of an arbitration court.

4. [C]onclusion of an ‘agreement in writing’ or making an arbitration agreement is always a subject to assessment by an arbitration tribunal or a state court which decides on its jurisdiction or lack of jurisdiction to hear the case.

5. Effective reliance on the grounds for application of Art. 1162 § 2 sentence 2 of the Polish Civil Procedure Code is (…) possible only if a contract is concluded with respect to which a dispute may arise, i.e. the so-called main contract (…).

6. [T]o effectively rely on existence of an arbitration clause, it is not sufficient for the contractor to challenge the conclusion of the main contract (for example, a sales contract) in which reference is made to the arbitration agreement contained in another document. The issue of existence of the arbitration agreement always requires a separate assessment and a decision on the validity and effectiveness of the arbitration clause.

7. Competence of an arbitration tribunal to settle a dispute results from the will of the parties. This will should be (in legal categories, i.e. terms of assignability of the declaration) unquestionable (…).

Data wydania: 04-04-2019 | Sygnatura: III CSK 81/17

Key issues: New York Convention, arbitrability of dispute, arbitration agreement, jurisdiction of arbitral tribunal

id: 20533

Judgment of the Court of Justice of 6 March 2018, C-284/16, Slovak Republic v. Achmea BV

Articles 267 and 344 TFEU must be interpreted as precluding a provision in an international agreement concluded between Member States, such as Article 8 of the Agreement on encouragement and reciprocal protection of investments between the Kingdom of the Netherlands and the Czech and Slovak Federative Republic, under which an investor from one of those Member States may, in the event of a dispute concerning investments in the other Member State, bring proceedings against the latter Member State before an arbitral tribunal whose jurisdiction that Member State has undertaken to accept.

Data wydania: 06-03-2018 | Sygnatura: C-284/16

Key issues: arbitrability of dispute, investment arbitration, arbitration agreement, jurisdiction of arbitral tribunal

id: 20532

Katowice Court of Appeal order dated 15 December 2016 Case No. V ACz 1309/16

1. The validity of an arbitration agreement is determined by the regulations in force at the time it was made.

2. Under Art. 697 §1 of the Civil Procedure Code, arbitrability meant the capacity of the parties to independently decide on their rights within the given legal relationship, while under Art. 1157 of the Civil Procedure Code the possibility of submitting a dispute to an arbitral tribunal is determined by its “settleability.” The two definitions of arbitrability differ only on a linguistic level, but on the conceptual level they are essentially the same.

3. The condition of arbitrability is the abstract ability of the parties, leaving aside the concrete circumstances and legal conditions, to dispose of the rights arising out of the legal relation between them, not the possibility of their concluding a specific judicial settlement or whether such a settlement would be permissible under Art. 203 §4, in connection with Art. 223 §2, of the Civil Procedure Code, applying Art. 917 and Art. 58 of the Civil Code. This means that certain categories of legal relations are deprived of arbitrability, not certain categories of claims arising out of them. The possibility of submitting a dispute
to arbitration concerns the abstractly defined legal relations, not the claims arising out of them.

4. Arbitrability is determined by the substance of the legal relation and the disputes arising out of it, which the parties may freely dispose of, and not the nature of the claims arising out of those relations. From this perspective, neither the nature of the claims (for performance, for a declaration, or for determination of a legal relation or right), nor the nature of the court’s ruling concerning the given claim (e.g. declarative or constitutive), nor the effects are such ruling are relevant.

5. A dispute concerning exclusion of a shareholder from a limited-liability company may be the subject of an effective arbitration agreement under Art. 1157 in connection with Art. 1163 §1 of the Civil Procedure Code.

Data wydania: 15-12-2016 | Sygnatura: V ACz 1309/16

Key issues: arbitrability of dispute, arbitration agreement

id: 20434

Supreme Court of Poland order dated 28 May 2015 Case No. III CZ 20/15

1. A judicial proceeding examining an allegation of the lack of jurisdiction of an arbitration court is an incidental proceeding, not concerning the merits of the case but only a preliminary and incidental issue. Pursuant to Civil Procedure Code Art. 1080 § 3, fourth sentence, Civil Procedure Code Art. 1207 applies as relevant to such proceeding, which means that the judicial proceeding examining the allegation of lack of jurisdiction of an arbitration court is conducted in accordance with the regulations of Book One, Part One, i.e. the regulations governing trials.

2. A cassation appeal lies only against judgments of the court of second instance ending the proceeding in the case and against orders of the court of second instance on dismissal of the statement of claim or discontinuance of the proceeding, if they end the proceeding in the case. There is no doubt that an order of the court of second instance denying an interlocutory appeal against an order of the court of first instance overruling an allegation of lack of jurisdiction of an arbitration court is not one of these rulings, and thus a cassation appeal will not lie against such an order.

3. The impermissibility of a cassation appeal against an order of the court of second instance issued pursuant to Civil Procedure Code Art. 1180 § 3, fifth sentence, does not limit in any respect the party’s right to a fair trial.

Data wydania: 28-05-2015 | Sygnatura: III CZ 20/15

Key issues: arbitrability of dispute

id: 20397

Kraków Court of Appeal order dated 17 December 2013 Case No. I ACz 2321/13

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… .

Data wydania: 17-12-2013 | Sygnatura: I ACz 2321/13

Key issues: arbitrability of dispute, arbitration agreement, arbitration procedure, jurisdiction of arbitral tribunal, petition to set aside arbitration award, recognition and enforcement of domestic arbitration award

id: 20638

Polish Supreme Court order dated 17 October 2012 Case No. I CSK 119/12

1. The demand pursued by the plaintiff on the basis of Art. 18(1)(5) in connection with Art. 15(1)(4) of the Act on Combating Unfair Competition, as a property claim, could be submitted to an arbitration court for resolution pursuant to Civil Procedure Code Art. 1157.

2. The wording that the jurisdiction of the arbitration court should extend to “any and all disputes between the parties arising out of the prior commercial cooperation of the parties on the basis of commercial contracts concluded previously…” leads to the conclusion that it covers the broadest possible category of disputes arising out of the commercial cooperation conducted on the basis of prior contracts. Use of the linguistic rules of interpretation does not allow elimination from this category of disputes arising out of the defendant’s commission of the act of unfair competition defined in Art. 15(1)(4) of the Act on Combating Unfair Competition, if it was connected with the commercial cooperation between the parties conducted on the basis of prior contracts between the parties.

3. Under the circumstances as determined, the arbitration clause adequately identified the legal relationship out of which the dispute arose, by indicating that it concerns any and all claims connected with the parties’ previous cooperation on the basis of contracts concluded by the parties, which also included claims connected with the defendant’s commission of the act of unfair competition referred to in Art. 15(1)(4).

4. This agreement [the arbitration clause] may also be assessed pursuant to the Civil Code, including in accordance with the criteria set forth in Civil Code Art. 58 §2.

5. It cannot be accepted that it was contrary to principles of social coexistence to submit to the arbitration court for resolution a future dispute caused by the lack of acceptance by a party or the parties to a contract containing an arbitration clause of a line of precedent of the state courts concerning the method of resolution of specific types of disputes and motivated by the hope for a different result from the resolution of the dispute before the arbitration court.

Data wydania: 17-10-2012 | Sygnatura: I CSK 119/12

Key issues: arbitrability of dispute, arbitration agreement

id: 20283

Polish Supreme Court judgment dated 19 April 2012 Case No. IV CSK 443/11

The arbitration clause set forth in the defendant’s statute covers financial and non-financial disputes between the National Credit Union and its members arising out of the relationship of membership. The dispute in this case was not a dispute arising out of the relationship of membership, but concerned the lawfulness of the section of the agreement which is the statute. The subject of the dispute indicates that this type of dispute could not be the subject of a judicial settlement, and under Civil Procedure Code Art. 1157 only disputes which are settleable may be submitted to an arbitration court for resolution.

Data wydania: 19-04-2012 | Sygnatura: IV CSK 443/11

Key issues: arbitrability of dispute, arbitration agreement

id: 20193

Polish Supreme Court order dated 24 November 2010 Case No. II CSK 291/10

1. The impermissibility of the common court’s hearing a case because of a binding arbitration clause (absent the grounds set forth in Civil Procedure Code Art. 1165 §2) also occurs when resolution of the matter presented for determination by the common court is not possible without resolving a dispute subject to the arbitration clause.

2. The principle of equality expressed in [Civil Procedure Code] Art. 1161 §2 requires ... that neither of the parties to a dispute to be decided by an arbitration court enjoy special rights in the proceeding before such court. This plainly applies to the manner in which arbitrators are selected. This is expressly stated in Art. 1169 §3, which provides that provisions of an agreement awarding one of the parties greater rights in appointment of the arbitration court shall be ineffective. This should be applied as relevant to a situation in which a provision of this type is contained in the rules of the permanent arbitration court selected by the parties.

Data wydania: 24-11-2010 | Sygnatura: CSK 291/10

Key issues: arbitrability of dispute, arbitrator, arbitration agreement

id: 20360

Polish Supreme Court resolution dated 23 September 2010 Case No. III CZP 57/10

1. A dispute concerning seeking a declaration of the non-existence of a legal relationship arising under an agreement because of the invalidity of the agreement may be submitted by the parties to an arbitration court for resolution (Civil Procedure Code Art. 1157).

2. The settleability of a dispute must be assessed in the abstract, apart from the concrete circumstances and legal conditions and considerations of whether a possible settlement that might be concluded by the parties would be permissible under Civil Procedure Code Art. 203 §4 in connection with Art. 223 §2, applying Civil Code Art. 917 in connection with Art. 58. … In an arbitration proceeding, the counterpart to review of the permissibility of a settlement under specific terms is the state court’s review via consideration ... of a petition [to set aside] the arbitration award or in a proceeding for recognition or enforcement of an arbitration award. ... There are no grounds for special treatment, from the point of view of the settleability of a dispute concerning a specific legal relationship, of the fact that the basis for the dispute is the defectiveness of the act creating, changing or extinguishing the legal relationship. What is relevant is not whether the issue of the defectiveness of the act, resulting in its invalidity, may be the subject of a settlement, but whether the legal relationship which the act concerns is subject to the disposition of the parties, and thus whether against the background of the relationship it is hypothetically possible to conclude a settlement.

Data wydania: 23-09-2010 | Sygnatura: III CZP 57/10

Key issues: arbitrability of dispute

id: 20332

Polish Supreme Court order dated 18 June 2010 Case No. V CSK 434/09

1. The ability to submit a dispute to arbitration concerns specific legal relationships in the abstract sense, not the specific claims arising thereunder (for performance, for a declaration, or to establish a legal relationship or right), which are not the subject of the arbitration clause.

2. The condition for arbitrability is the abstract ability of the parties to dispose of rights arising under the legal relationship between then, not their ability to conclude a specific judicial settlement. It is thus not relevant ... whether the parties could by their own will bring about the non-existence or invalidity of the agreement between them ... or if they could, independently or through a judicial settlement, bring about the end of the dispute arising between them.

Data wydania: 18-06-2010 | Sygnatura: V CSK 434/09

Key issues: arbitrability of dispute, arbitration agreement

id: 20330

Polish Supreme Court order dated 21 May 2010 Case No. II CSK 670/09

Based on a grammatical interpretation of Civil Procedure Code Art. 1157, for purposes of this provision it is essential that a given type of dispute concerning property or non-property rights may be the subject of a judicial settlement, but the issue of whether a settlement under particular terms would be permissible or not ... is irrelevant. … The condition of being capable of settlement means the abstract ability of a party to dispose of its rights (or the claims arising therefrom), not the ability for the parties to conclude a specific judicial settlement. In other words, it is irrelevant whether under the specific circumstances the parties may conclude an agreement with particular terms, as the agreement may, in an abstract sense, concern a legal relationship and rights subject to the disposition of the parties, but in its terms it might in a given instance violate applicable regulations or principles of social coexistence (Civil Code Art. 58 §§ 1 and 2). Assessment of the arbitrability of a dispute should be separated from an assessment of whether a specific settlement and the terms thereof would violate the law or whether the condition of “mutual concessions” set forth in Civil Code Art. 917 is met.

Data wydania: 21-05-2010 | Sygnatura: II CSK 670/09

Key issues: arbitrability of dispute, arbitration agreement

id: 20329

Polish Supreme Court order dated 2 December 2009 Case No. I CSK 120/09

1. A claim for disgorgement of unjust enrichment under Unfair Competition Act Art. 18(1)(4), as a property/financial dispute [majątkowe], lies within the disposition of the parties and may be the subject of a settlement between the parties. Therefore it may also be the subject of an arbitration clause (see Civil Procedure Code Art. 1157).

2. [The arbitration clauses in the case] expressly concern disputes arising out of or related to agreements for cooperation in the sale of goods. The act of unfair competition committed by the defendant, consisting of charging additional fees, was not ... related to performance of the agreements and did not arise in connection with performance of the agreements, but was only committed while performing the agreements.... The claim asserted by it thus is not contractual in nature and is not related to the terms of the agreements concluded between the parties, but concerns an act of unfair competition committed by the defendant. It is difficult to assume that when concluding the clauses in question the parties anticipated that one of them would commit an act of unfair competition and submitted disputes in this respect for resolution by the arbitration court. It is clear from the wording of the clauses that they concern disputes connected with performance of the agreements, and not any and all disputes arising during the time of performance of the agreements.

Data wydania: 02-12-2009 | Sygnatura: I CSK 120/09

Key issues: arbitrability of dispute, arbitration agreement

id: 20328

Warsaw Appellate Court order dated 24 September 2009 Case No. I ACa 995/08

1. The New York Convention does not contain provisions indicating the form in which the parties should make a choice of law governing the arbitration clause. Art. V(1)[(a)] of the New York Convention does not require that the choice of law governing the arbitration clause be made in writing. The term “indication” should be interpreted to mean behaviour by a person in the form of writing, or any other behaviour that sufficiently reveals the person’s intent. Art. VI(2) of the European Convention on International Commercial Arbitration made at Geneva on 21 April 1961 uses the term “indication” without specifying the form, and thus “indication” should be interpreted as any behaviour by the parties indicating their joint intent.

2. It is not possible to conclude a settlement where, based on the nature of the disputed legal relations, the parties cannot freely dispose of the rights. Thus the appellate court holds that a dispute over the effectiveness of an agreement on sale of shares in a limited-liability company is not arbitrable.

3. The plaintiff determines who is a party when it initiates a dispute. The attribute of being a party is purely formal in nature and is not tied to the existence of a substantive legal claim, nor does it determine the jurisdiction of the arbitration court to decide the merits of the case. In a case where the arbitration court finds that it lacks jurisdiction over a “party,” it cannot be inferred that the ruling on the merits of the dispute is binding on that party. The party was not a party to the dispute on the merits because the arbitration court did not have jurisdiction over it.

4. Assessment of procedural acts of the parties in an arbitration proceeding lies within the power of the arbitration court, and a court ruling on recognition of an award may not make assessments contrary to that of the arbitration court, or assessments under the Polish Civil Procedure Code, which was not applicable in the proceeding before the arbitration court.

5. The state court is bound by the ruling of the arbitration court concerning its lack of jurisdiction to resolve specific disputes, regardless of whether the arbitration court’s interpretation of the scope of the arbitration clause was correct or not. It is clear that the arbitration court is authorized to rule on its own jurisdiction.

6. In order to decide on its jurisdiction, the arbitration court must consider the grounds for or against its jurisdiction. This cannot mean, however, that in cases in which the same issues are decisive of both the jurisdiction of the arbitration and the resolution on the merits the authority to resolve the issue of jurisdiction is also authority to decide the merits of the dispute. Otherwise the party would de facto be deprived of the ability to effectively assert the defence of lack of jurisdiction on the part of the arbitration court.

7. None of the provisions of law providing the arbitration court the authority to decide on its jurisdiction and analyze all factual and legal issues necessary to perform this task provides it a priori authority to decide the merits of the case. If the jurisdictional determination is negative, the arbitration court must refrain from deciding the merits of case. Review of the merits in such instance serves only as a basis for the jurisdictional ruling.

8. It is impermissible that res judicata effect of a ruling by the arbitration court would exert effects in Poland with respect to persons not covered by the legal finality of such ruling in the country of origin.

Data wydania: 24-09-2009 | Sygnatura: I ACa 995/08

Key issues: arbitrability of dispute, arbitration agreement, jurisdiction of arbitral tribunal, recognition and enforcement of foreign arbitration award

id: 20294

Polish Supreme Court resolution dated 7 May 2009 Case No. III CZP 13/09

1. Civil Procedure Code Art. 1163 §1 does not contain a specific rule In relation to Art. 1157 with respect to the requirement that disputes to be submitted for resolution by an arbitration court be capable of serving as the subject of a judicial settlement.

2. The two provisions govern wholly different matters. Civil Procedure Code Art. 1157 sets forth the bounds of arbitrability of a dispute, providing that the fundamental criterion for arbitrability ... is fitness for settlement of the dispute. Civil Procedure Code Art. 1163 §1 ... only provides, however, that an arbitration clause may be included in the articles of association (or statute) of a commercial companies and that it is then binding on the company and its shareholders.

3. The purpose of Civil Procedure Code Art. 1163 §1 is not to govern the grounds for arbitrability of corporate disputes. This is evident from the fact that Civil Procedure Code Art. 1163 §1 does not set the conditions that would have to met by a corporate dispute in order to be arbitrable.

4. A specific regulation in relation to Civil Procedure Code Art. 1157 could only be a provision governing (differently) arbitrability of a dispute.

Data wydania: 07-05-2009 | Sygnatura: III CZP 13/09

Key issues: arbitrability of dispute

id: 20263

Supreme Court resolution dated 24 February 2005 Case No. III CZP 86/04

1. The defence of an arbitration clause concerning the legal relationship between the issuer of a promissory note and the payee is also effective with respect to the issuer of the promissory note when, alongside the issuer of the note, the guarantor of the promissory note, who was not a party to the agreement submitting the dispute for resolution by the arbitration court, is also a defendant.

2. A promissory note obligation may be subject to an arbitration clause.

3. The effect of shifting the dispute onto the general ground of civil law, meaning that the resolution of the dispute requires assessment of the justification of the claim in light of the “underlying relationship” in connection with which the promissory note was issued, does not occur by the mere fact of filing defences to the order for payment. This effect depends on whether the interested party takes the relevant actions, and the court has no duty to act in this respect on its own initiative. The actions taken by the party may consist of the defendant’s assertion of defences to an order for payment with respect to the lack of grounds for the claim pursued based on the underlying relationship, or the plaintiff’s assertion, in the statement of claim or in the proceeding conducted as a result of assertion of defences to the order for payment, of allegations justifying the claim asserted also on the basis of the underlying relationship.

4. In the event of lack of actions by the parties causing the dispute to be shifted to the general ground of civil law, the dispute in the proceeding conducted pursuant to the defences against the order for payment is subject to consideration under the promissory note relationship.

5. A promissory note guarantor may defend against the holder of the note with all defences available to the person for whom he issued the guarantee, but this applies only to substantive defences (Art. 32 of the Promissory Note Law dated 28 April 1936, Journal of Laws Dz.U. 1936 No. 37 item 282), but the defence of an arbitration clause is a procedural defence. Without being a party to the agreement ... containing the arbitration clause, the defendant cannot assert the arbitration clause.

6. Civil Procedure Code Art. 72 §3 cannot be interpreted as a provision that changes the consequences of the lack of procedural grounds, and specifically as eliminating the effectiveness of an arbitration clause. If the clause is effective with respect to one substantive co-party, of any type, but is not effective with respect to the other co-party, the case with respect to the first co-party cannot be considered at all by the state court, and the statement of claim in this respect is subject to dismissal; however, with respect to the other co-party, the case is subject by consideration by the state court.

Data wydania: 24-02-2005 | Sygnatura: III CZP 86/04

Key issues: arbitrability of dispute, arbitration agreement, jurisdiction of arbitral tribunal

id: 20213

Polish Supreme Court order dated 6 May 1999 Case No. I PKN 140/99

Under Civil Procedure Code Art. 697 §1, an arbitration clause may not cover, among other things, disputes arising out of an employment relationship. The nature of the case is determined by the claim pursued.

Data wydania: 06-05-1999 | Sygnatura: I PKN 140/99

Key issues: arbitrability of dispute, arbitration agreement

id: 20350

Gdańsk Appellate Court judgment dated 9 July 1996 Case No. I ACr 560/96

The essence of an obligation under a promissory note prevents it from being subject to an arbitration clause. … No arbitration court has the authority to issue an order for payment. Submission of a dispute under a promissory note obligation to arbitration would thus negate the function of the promissory note and the very purpose for issuing it.

Data wydania: 09-07-1996 | Sygnatura: I ACr 560/96

Key issues: arbitrability of dispute, arbitration agreement

id: 20344

Polish Supreme Court order dated 25 November 1980 Case No. II CZ 111/79

Art. 1 of the Convention on Arbitration of Civil Disputes Arising Out of Economic, Scientific and Technical Cooperation, made at Moscow on 25 May 1972 and ratified inter alia by Poland and the Soviet Union, promulgated at Journal of Laws Dz.U. 1974 No. 7 item 37, applies in the case of any dispute between economic organizations arising out of a civil-law relationship, if the dispute arose during the course of economic, scientific or technical cooperation between states participating in the convention, and thus regardless of whether such cooperation occurred between the economic organizations involved in the dispute.

Data wydania: 25-11-1980 | Sygnatura: II CZ 111/79

Key issues: arbitrability of dispute

id: 20127

Polish Supreme Court order dated 7 March 1979 Case No. III CRN 10/79

1. Which cases that are subject to consideration by the state courts may be submitted to arbitration is determined by the regulations governing arbitration proceedings.

2. Issuance of an enforcement clause must be preceded by a legally final ruling by the state court, pursuant to Civil Procedure Code Art. 711, confirming the enforceability of the arbitration award.

3. The only cases falling under the non-adversarial procedure that may be heard by an arbitration court are those rather rare cases whose nature allows for this, that is, those that meet the grounds [for arbitrability] provided in Civil Procedure Code Art. 697 §1.

4. Under current law, adversarial and non-adversarial proceedings are parallel tracks for judicial proceedings, and the non-adversarial procedure in property matters in which the court commences the proceeding upon application is not so different from the rules applicable in an adversarial proceeding that mere submission of a given matter to resolution through the non-adversarial procedure results in exclusion of the possibility of submitting such matter to an arbitration court for resolution.

Data wydania: 07-03-1979 | Sygnatura: III CRN 10/79

Key issues: arbitrability of dispute, arbitration agreement, jurisdiction of arbitral tribunal, recognition and enforcement of domestic arbitration award

id: 20122

Polish Supreme Court ruling dated 10/16 December 1953 Case No. II C 316/53

1. In the system of the People’s Democratic State, where protection of social property is one of the overriding duties of citizens, contractual provisions which submit final resolution of disputes concerning property rights of the State Treasury to the discretion of other actors than the courts or other institutions appointed to do so by law cannot be regarded as permissible and valid.

2. A clause appointing an arbitration court whose erroneous ruling on the relief sought by the parties may be set aside pursuant to a petition to set aside an arbitration award only if the award is unintelligible or inconsistent, exceeds the bounds of the submission, or by its substance violates the rule of law or principles of social coexistence in the People’s Democratic State (Civil Procedure Code Art. 510 §1(4)), may cause a diminution of social assets if the arbitration court in issuing its ruling is not guided by governing law, and more specifically by regulations of substantive law. Therefore, submission of such a dispute to an arbitration court for resolution cannot be reconciled with due protection of state property, for which the authorities of the State are appointed.

Data wydania: 16-12-1953 | Sygnatura: II C 316/53

Key issues: arbitrability of dispute, arbitration agreement

id: 20089

Polish Supreme Court ruling dated 21 January 1931 Case No. III 1 Rw 1931/30

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.

Data wydania: 21-01-1931 | Sygnatura: III 1 Rw 1931/30

Key issues: arbitrability of dispute, arbitration procedure

id: 20023

Asłanowicz Marcin

Arbitration Court. Commentary to Articles 1154-1217 of the Civil Procedure Code [Original title: Sąd polubowny (arbitrażowy). Komentarz do art. 1154-1217 KPC]

Warsaw 2017, pp. 255

id: 31909

Asłanowicz Marcin

Arbitration Court. Commentary to Articles 1154-1217 of the Civil Procedure Code [Original title: Sąd polubowny (arbitrażowy). Komentarz do art. 1154-1217 KPC]

Warsaw 2017, pp. 255

id: 31909

Bagdziński Tomasz

Arbitration and Competition Law – Some Input Into the Dispute (A Polemic)[Original title: Arbitraż a prawo konkurencji – głos w dyskusji (artykuł polemiczny)]

internetowy Kwartalnik Antymonopolowy i Regulacyjny. Seria Antymonopolowa 2015, No. 4(4), p. 69-74

Key issues: general works, arbitrability of dispute

id: 31459

Bałos Iga

Arbitrability of Patent Related Disputes [Original title: Zdatność arbitrażowa sporów dotyczących patentów]

Warsaw 2017

Key issues: arbitrability of dispute

id: 31845

Bałos Iga

Arbitration procedure and the sense of security of its parties in patent disputes [Original title: Postępowanie arbitrażowe a poczucie bezpieczeństwa stron sporu dotyczącego patentu]

Studia Prawnicze. Rozprawy i Materiały 2013, No. 2, p. 181-195

Key issues: arbitrability of dispute, arbitrability of dispute, arbitration procedure, arbitration procedure, costs of arbitration, costs of arbitration

id: 32072

Bałos Iga

Arbitration procedure and the sense of security of its parties in patent disputes [Original title: Postępowanie arbitrażowe a poczucie bezpieczeństwa stron sporu dotyczącego patentu]

Studia Prawnicze. Rozprawy i Materiały 2013, No. 2, p. 181-195

Key issues: arbitrability of dispute, arbitrability of dispute, arbitration procedure, arbitration procedure, costs of arbitration, costs of arbitration

id: 32072

Bałos Iga

Law applicable to the assessment of dispute arbitrability in international commercial arbitration [Original title: Prawo właściwe do oceny zdatności arbitrażowej sporu w międzynarodowym arbitrażu handlowym]

[in:] Grzybowski Marian (ed.), Democratic, legal and social state. Commemorative Volume Dedicated to Prof. Zbigniew Antoni Maciąg [Original title: Państwo demokratyczne, prawne i socjalne. Księga jubileuszowa dedykowana profesorowi Zbigniewowi Antoniemu Maciągowi], Vol. III, Legal studies, Cracow 2014, p. 185-200

Key issues: arbitrability of dispute

id: 32383

Bałos Iga

Will Arbitration Help in Disputes Concerning Author’s Supervision? [Original title: Czy arbitraż pomoże w sporach o nadzór autorski?]

Konsultant 2015, No 40, p. 18-20

Key issues: general works, arbitrability of dispute

id: 31505

Barańska Anna Maria

Investment arbitration in the light of the CJEU judgment of 6 March 2018 in case C-284/16 Slowakische Republik v. Achmea BV [Original title: Arbitraż inwestycyjny w świetle wyroku TSUE z 6.3.2018 r. w sprawie C-284/16 Slowakische Republik v. Achmea BV]

ADR. Arbitraż i Mediacja 2019, No. 3, p. 5-14

Key issues: arbitrability of dispute, arbitrability of dispute, investment arbitration, investment arbitration, arbitration agreement, arbitration agreement, jurisdiction of arbitral tribunal, jurisdiction of arbitral tribunal

id: 32001

Barańska Anna Maria

Investment arbitration in the light of the CJEU judgment of 6 March 2018 in case C-284/16 Slowakische Republik v. Achmea BV [Original title: Arbitraż inwestycyjny w świetle wyroku TSUE z 6.3.2018 r. w sprawie C-284/16 Slowakische Republik v. Achmea BV]

ADR. Arbitraż i Mediacja 2019, No. 3, p. 5-14

Key issues: arbitrability of dispute, arbitrability of dispute, investment arbitration, investment arbitration, arbitration agreement, arbitration agreement, jurisdiction of arbitral tribunal, jurisdiction of arbitral tribunal

id: 32001

Barańska Anna Maria

Investment arbitration in the light of the CJEU judgment of 6 March 2018 in case C-284/16 Slowakische Republik v. Achmea BV [Original title: Investitionsschiedsgerichtsbarkeit im Lichte des EuGH-Urteils vom 6. März 2018 in der Rechtssache C-284/16 Slowakische Republik gegen Achmea BV]

ADR. Arbitraż i Mediacja 2019, No. 3, p. 15-24

Key issues: arbitrability of dispute, arbitrability of dispute, investment arbitration, investment arbitration, arbitration agreement, arbitration agreement, jurisdiction of arbitral tribunal, jurisdiction of arbitral tribunal

id: 32002

Barańska Anna Maria

Investment arbitration in the light of the CJEU judgment of 6 March 2018 in case C-284/16 Slowakische Republik v. Achmea BV [Original title: Investitionsschiedsgerichtsbarkeit im Lichte des EuGH-Urteils vom 6. März 2018 in der Rechtssache C-284/16 Slowakische Republik gegen Achmea BV]

ADR. Arbitraż i Mediacja 2019, No. 3, p. 15-24

Key issues: arbitrability of dispute, arbitrability of dispute, investment arbitration, investment arbitration, arbitration agreement, arbitration agreement, jurisdiction of arbitral tribunal, jurisdiction of arbitral tribunal

id: 32002

Barański Jakub

Lost Opportunity – Corporate Arbitration and the Amendment of the Arbitration Law [Original title: Utracona okazja – arbitraż korporacyjny a nowelizacja prawa arbitrażowego]

PEP 2015, No 12 (138), p. 41-43

Key issues: arbitrability of dispute, arbitration agreement, petition to set aside arbitration award, recognition and enforcement of domestic arbitration award, recognition and enforcement of foreign arbitration award

id: 31507

Zembra Mykola, Bazan Wojciech

Challenging of Arbitral Awards in Ukraine [Original title: Skarga o uchylenie wyroku sądu polubownego na Ukrainie]

Arbitration e-Review 2014, No. 1-2, p. 71-78

Key issues: arbitrability of dispute, arbitration agreement, petition to set aside arbitration award

id: 31282

Białecki Marcin

a commentary to Art. 1154-1179

[in:] Jankowski Janusz (ed.), The Polish Civil Proceudre Code. A commentary 2019. Vol. II. Art. 730-1217 [Original title: Kodeks postępowania cywilnego. Komentarz 2019. Tom II. Art. 730-1217], 3rd edition, Legalis

Key issues: general works, arbitrability of dispute, arbitrator, arbitration agreement, arbitration procedure, interim measures

id: 35247

Białecki Marcin

a commentary to Art. 1154-1179

[in:] Jankowski Janusz (ed.), The Polish Civil Procedure Code. A commentary 2015. Vol. II. Art. 730-1217 [Original title: Kodeks postępowania cywilnego. Komentarz 2015. Tom II. Art.730-1217], 2nd edition, Legalis

Key issues: general works, arbitrability of dispute, arbitrator, arbitration agreement, arbitration procedure, interim measures

id: 35249

Bierecki Dominik

Inclusion of an arbitration clause in a cooperative’s articles of association [Original title: Zamieszczenie zapisu na sąd polubowny w statucie spółdzielni]

PS 2023, No. 2, p. 48-64

Key issues: arbitrability of dispute, arbitration agreement

id: 35254

Bilewska Katarzyna

A new opening in Polish corporate arbitration [Original title: Nowe otwarcie w polskim arbitrażu korporacyjnym]

Biuletyn Arbitrażowy 2022, No. 29, p. 4-12

Key issues: arbitrability of dispute, arbitration agreement, arbitration procedure

id: 32286

Błaszczak Łukasz

Arbitrability Under Article 1157 of the CCP and Disputes Regarding Declaration of Invalidity or Reversal of Resolutions in Capital Companies [Original title: Zdatność arbitrażowa z art. 1157 k.p.c. a spory o stwierdzenie nieważności lub uchylenie uchwał spółek kapitałowych]

R.Pr. - dod. 2012, No. 127/128, p. 2-4

Key issues: arbitrability of dispute, arbitration agreement

id: 31061

Błaszczak Łukasz, Gessel-Kalinowska vel Kalisz Beata, Sikorski Rafał, Zachariasiewicz Maciej, Zawiślak Karol, Żmij Grzegorz

White Book. Proposed legislative changes aimed at improving the legal framework of arbitration in Poland [Original title: Biała Księga. Propozycje zmian legislacyjnych mających na celu ulepszenie ram prawnych sądownictwa polubownego w Polsce]

Warsaw - Katowice - Kraków - Wrocław - Poznań 2014, pp. 80

Key issues: arbitrability of dispute, arbitration agreement, arbitration award, arbitration procedure, arbitrator, costs of arbitration, general works, interim measures, jurisdiction of arbitral tribunal, New York Convention, petition to set aside arbitration award, settlement before arbitral tribunal, arbitrability of dispute, arbitration agreement, arbitration award, arbitration procedure, arbitrator, costs of arbitration, general works, interim measures, jurisdiction of arbitral tribunal, New York Convention, petition to set aside arbitration award, settlement before arbitral tribunal

id: 32149

Błaszczak Łukasz, Gessel-Kalinowska vel Kalisz Beata, Sikorski Rafał, Zachariasiewicz Maciej, Zawiślak Karol, Żmij Grzegorz

White Book. Proposed legislative changes aimed at improving the legal framework of arbitration in Poland [Original title: Biała Księga. Propozycje zmian legislacyjnych mających na celu ulepszenie ram prawnych sądownictwa polubownego w Polsce]

Warsaw - Katowice - Kraków - Wrocław - Poznań 2014, pp. 80

Key issues: arbitrability of dispute, arbitration agreement, arbitration award, arbitration procedure, arbitrator, costs of arbitration, general works, interim measures, jurisdiction of arbitral tribunal, New York Convention, petition to set aside arbitration award, settlement before arbitral tribunal, arbitrability of dispute, arbitration agreement, arbitration award, arbitration procedure, arbitrator, costs of arbitration, general works, interim measures, jurisdiction of arbitral tribunal, New York Convention, petition to set aside arbitration award, settlement before arbitral tribunal

id: 32149

Błaszczak Łukasz, Marszałkowska-Krześ Elwira

Arbitration agreement and notarial activities (selected issues) [Original title: Zapis na sąd polubowny a czynności notarialne (wybrane zagadnienia)]

Rejent 2007, No. 9, p. 9-31

Key issues: arbitrability of dispute, arbitrability of dispute, arbitration agreement, arbitration agreement

id: 32041

Błaszczak Łukasz, Marszałkowska-Krześ Elwira

Arbitration agreement and notarial activities (selected issues) [Original title: Zapis na sąd polubowny a czynności notarialne (wybrane zagadnienia)]

Rejent 2007, No. 9, p. 9-31

Key issues: arbitrability of dispute, arbitrability of dispute, arbitration agreement, arbitration agreement

id: 32041

Błaszczyk Paweł

Arbitration Capacity of Disputes under Commercial Company Relationship – Commentary about Supreme Court Resolution of 7 May 2009, III CZP 13/09. [Original title: Glosa do uchwały SN z dnia 7 maja 2009 r., III CZP 13/09. Zdatność arbitrażowa sporów ze stosunku spółki handlowej]

Glosa 2010, No. 1, p. 22-29

Key issues: arbitrability of dispute

id: 30732

Bodio Joanna

Arbitrability and the Objective Scope of the Arbitration Agreement According to the Polish Civil Procedure Code [Original title: Zdatność arbitrażowa a zakres przedmiotowy zapisu na sąd polubowny według Kodeksu postępowania cywilnego]

R. Pr. - dod. 2012, No. 125, p. 2-8

Key issues: arbitrability of dispute, arbitration agreement

id: 31127

Borris Christian

The DIS Regulation on Corporate Dispute Resolution [Original title: Regulacja DIS dotycząca rozstrzygania sporów korporacyjnych]

[in:] Jurcewicz Witold, Pörnbacher Karl, Wiśniewski Cezary (eds), Spory korporacyjne w praktyce arbitrażowej - perspektywa polska i niemiecka, Warsaw 2017, p. 87-94

Key issues: arbitrability of dispute

id: 31854

Bredow Jens

Arbitrating Shareholder Resolution Disputes in Germany: The New DIS-Suplementary Rules for Corporate Law Disputes ('DIS-SRCoLD')

[in:] Józef Okolski (chair), Andrzej Całus, Maksymilian Pazdan, Stanisław Sołtysiński, Tomasz Wardyński, Stanisław Włodyka (ed.) Essays in Honour of 60 years of the Court of Arbitration at the Polish Chamber of Commerce in Warsaw [Księga pamiątkowa 60-lecia Sądu Arbitrażowego przy Krajowej Izbie Gospodarczej w Warszawie], Warszawa 2010, p. 469-502

Key issues: arbitrability of dispute

id: 30931

Brykczyński Jakub

Changes in the Civil Procedure Code Regarding Arbitration Clause [Original title: Zmiany w kodeksie postępowania cywilnego dotyczące zapisu na sąd polubowny]

[in:] Dorota Czura-Kalinowska (ed.), Mediation and Arbitration as a Means of Amicable Dispute Resolution [Mediacja i arbitraż jako sposoby polubownego rozstrzygania sporów], Poznań 2009, p. 189-196

Key issues: arbitrability of dispute, arbitration agreement

id: 30877

Budniak Aleksandra

Legal Character and Admissibility of Entering into an Arbitration Clause in the Polish and German Law (Part II) [Original title: Charakter prawny oraz dopuszczalność zawarcia zapisu na sąd polubowny w prawie polskim i niemieckim (cz. II)]

Rej. 2008, No. 10, p. 66-87

Key issues: arbitrability of dispute, arbitration agreement

id: 30854

Marszałkowska-Krześ Elwira, Budniak-Rogala Aleksandra

Arbitrability – selected remarks against the background of the amendment of 31 July 2019 [Original title: Zdatność arbitrażowa - uwagi wybrane na tle nowelizacji ustawą z 31.07.2019 r.]

[in:] Dumkiewicz Małgorzata, Szczotka Jerzy, Kopaczyńska-Pieczniak Katarzyna (eds), 100 years of Polish commercial law. Andrzej Kidyba anniversary volume, Vol. II [Original title: Sto lat polskiego prawa handlowego. Księga jubileuszowa dedykowana profesorowi Andrzejowi Kidybie. Tom II], Warsaw 2020, p. 837-865

Key issues: arbitrability of dispute

id: 32112