arbitration-poland.com - Key Issues - state court assistance

Judgment of the Court of Justice of 28 July 2016, C‑168/15, Milena Tomášová v Slovenská republika - Ministerstvo spravodlivosti SR, Pohotovosť s. r. o.

It cannot be concluded that a national court which, prior to the judgment of 4 June 2009 in Pannon GSM (C‑243/08, EU:C:2009:350), failed, in the context of proceedings for enforcement of an arbitral award upholding a claim for payment of debts under a contractual term which must be regarded as unfair within the meaning of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, to assess of its own motion whether that term is unfair, although it has available to it the legal and factual elements necessary for that purpose, manifestly disregarded the Court’s case-law on the matter and, therefore, committed a sufficiently serious breach of EU law.

Data wydania: 28-07-2016 | Sygnatura: C‑168/15

Key issues: state court assistance

id: 20577

Order of the Court of Justice of 3 April 2014, C-342/13, Katalin Sebestyén v. Zsolt Csaba Kővári and others.

Article 3(1) and (3) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, and point 1(q) of the Annex to that directive, must be interpreted as meaning that it is for the national court concerned to determine whether a clause contained in a mortgage loan contract concluded between a bank and a consumer — vesting exclusive jurisdiction in a permanent arbitration tribunal, against whose decisions there is no judicial remedy under national law, to hear all disputes arising out of that contract — must, having regard to all of the circumstances surrounding the conclusion of that contract, be regarded as unfair under those provisions. In the context of its assessment, the national court must, in particular:

– verify whether the clause at issue has the object or effect of excluding or hindering the consumer’s right to take legal action or exercise any other legal remedy; and

– take account of the fact that the communication to the consumer, before the conclusion of the contract at issue, of general information on the differences between the arbitration procedure and ordinary legal proceedings cannot alone rule out the unfairness of that clause.

If the clause is held to be unfair, it is for that court to draw the appropriate conclusions under national law in order to ensure that the consumer is not bound by that clause.

Data wydania: 03-04-2014 | Sygnatura: C-342/13

Key issues: state court assistance, arbitration agreement

id: 20548

Polish Supreme Court resolution dated 8 September 2011 Case No. III CZP 41/11

1. An interlocutory appeal will lie against an order by the state court, as the court of first instance, denying a motion to challenge an arbitrator.

2. The issue of the independence and impartiality of the arbitrator goes to the essence of the arbitration proceeding as a non-judicial procedure for resolving private legal disputes.

3. Impartiality is a certain intellectual attitude, a psychological state of an objective judge (or arbitrator). In opposition to this, partiality is a characteristic connected with a real or apparent biased attitude of the decision-maker in favour of one of the parties or with respect to the issues in dispute.

4. It is asserted in the literature that “independence” refers only to issues arising out of a relationship between the judge (or arbitrator) and one of the parties. Independence means the lack of any relationship between the arbitrator and the parties to the dispute, in the past or during the course of the proceeding, that could affect the substance of the decision.

5. If the deadline indicated in Civil Procedure Code Art. 1176 passes without effect, the party obtains a right to apply to the state court (within two weeks) to recuse the arbitrator.

6. The proceeding before the state court is conducted on the basis of the Civil Procedure Code. Thus the issue of the permissibility of an interlocutory appeal against the order of the state court denying the motion to recuse the arbitrator should be considered on the basis of application of Civil Procedure Code Art. 394 §1 as relevant.

Data wydania: 08-09-2011 | Sygnatura: III CZP 41/11

Key issues: state court assistance, arbitrator

id: 20357

Order of the Court of Justice of 16 November 2010, C-76/10, Pohotovosť s. r. o. v Iveta Korčkovská

(…) Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts requires a national court, hearing an application for enforcement of a final arbitral award issued by default and without the participation of the consumer, of its own motion, where the necessary information on the legal and factual state of affairs is available to it for this purpose, to consider the fairness of the penalty contained in a credit agreement concluded by a creditor with a consumer, that penalty having been applied in that award, where, according to national procedural rules, such an assessment may be conducted in similar proceedings under national law.

Data wydania: 16-11-2010 | Sygnatura: C-76/10

Key issues: state court assistance

id: 20576

Polish Supreme Court order dated 14 July 1998 Case No. III CKN 548/98

1. Submission of a dispute for resolution by an arbitration court does not definitively exclude the jurisdiction of the state court. The proceeding before the arbitration court constitutes only a fragment of the entire system of protection of the interests of the claimant.

2. The position that a proceeding before the state court, initiated by filing of a motion for interim relief to secure a claim which will be pursued before the arbitration court, becomes an independent case within the meaning of Civil Procedure Code Art. 392 §1 is indefensible. Such proceeding remains a proceeding in which only a certain incidental issue is resolved. The ruling that is issued does not end the proceeding “in the case” even though it ends the proceeding initiated by the motion for interim relief. Only the arbitration award will be a ruling ending the case as a certain entirety submitted for judgment. An interim order issued by the state court concerning security for the claim is a ruling that resolves only an incidental issue.

Data wydania: 14-07-1998 | Sygnatura: III CKN 548/98

Key issues: state court assistance, jurisdiction of arbitral tribunal

id: 20153

Polish Supreme Court order dated 24 February 1998 Case No. I CKN 455/97

By permitting in a separate regulation (Civil Procedure Code Art. 701 §3) an interlocutory appeal against an order concerning, among other things, appointment of an arbitrator, the Parliament clearly let it be known that it does not treat them as ending the proceeding in the matter, as then the general rule set forth at the beginning of Civil Procedure Code Art. 394 §1 would apply.

Data wydania: 24-02-1998 | Sygnatura: I CKN 455/97

Key issues: state court assistance, arbitrator

id: 20149

Polish Supreme Court order dated 22 January 1997 Case No. I CKN 48/96

1. Because Part 1, Chapter 3 of the Civil Procedure Code, covering the issue of arbitration, does not contain a special regulation on admissibility and deadlines for appellate instruments, the regulations from Chapter 1 will apply as relevant, including among them Civil Procedure Code Art. 392.

2. An order of the province court denying an interlocutory appeal from an order of the district court concerning appointment of an arbitrator and presiding arbitrator may not be regarded as an order ending the proceedings in the case. From the point of view of the proceedings before the state court, the case is ended only by an order ending the proceeding on the petition to set aside the arbitration award (Civil Procedure Code Art. 715), or, as the case may be, an order dismissing the statement of claim because of the existence of an arbitration clause (Civil Procedure Code Art. 199 §1(4)).

Data wydania: 22-01-1997 | Sygnatura: I CKN 48/96

Key issues: state court assistance, arbitrator

id: 20144

Polish Supreme Court order dated 18 February 1993 Case No. I CRN 6/93

1. The provisions of Civil Procedure Code Part II concerning interim relief to secure a claim are applicable in a case with a “foreign element”. ... The existence of domestic jurisdiction for the proceeding on the merits is not a necessary condition for the proceeding seeking interim relief.

2. Pursuant to Civil Procedure Code Art. 734, when issuing an interim order prior to commencement of the proceeding in the case, the court will set a deadline by which the case shall be commenced or the security will lapse. Following the doctrine, in considering the matter the Supreme Court took the view that filing a claim before a foreign arbitration court before such deadline meets the conditions of this provision.

Data wydania: 18-02-1993 | Sygnatura: I CRN 6/93

Key issues: state court assistance, arbitration agreement

id: 20138

Polish Supreme Court resolution dated 28 May 1938 Case Nos. C III 2479/36 and C III 1301/36

1. In a proceeding in the common court, governed by the regulations of Part 1, Book 3 of the Civil Procedure Code, if such book does not provide otherwise the provisions of Part 1, Book 2 of the Civil Procedure Code should be applied as relevant.

2. A proceeding commenced upon motion of a party to appoint an arbitrator or a presiding arbitrator is essentially a separate proceeding which is only to prepare the proceeding before the arbitration court. No interlocutory appeal will lie from the appointment of an arbitrator or presiding arbitrator (Civil Procedure Code Art. 485 §2), and thus there may not be a cassation appeal either, as there is no cassation appeal against an order by the court of first instance. However, an interlocutory appeal does lie from the refusal to make an appointment, and a cassation appeal lies from the order of the court of second instance upholding the negative determination of the court of first instance, as from an order ending the proceeding.

3. A proceeding upon a motion by an arbitrator to set his fee is also a separate proceeding, based on the arbitration agreement. Both the arbitrator and the parties litigating before the arbitration court may file interlocutory appeals against the order of the court of first instance and cassation appeals against the order of the court of second instance, as from an order ending the proceeding.

4. A proceeding commenced upon motion of a party seeking a ruling that an arbitration clause has expired is also a separate proceeding before the common court. Here, the state court rules after hearing the dispute between the parties concerning the effectiveness of the agreement. The order resolving this dispute should be considered comparable to a judgment, and thus the parties have a right to file an interlocutory appeal against the order of the court of first instance and a cassation appeal against the order of the court of second instance.

5. Finally, an order on enforceability of an arbitration award or a settlement concluded before the arbitration court also ends a separate proceeding commenced upon motion of a party. ... An interlocutory appeal will thus lie from the order of the court of first instance concerning enforceability, and a cassation appeal will lie from the order of the court of second instance.

6. The court filing fee should be charged on a cassation appeal in the cases referred to above in accordance with general rules.

7. In these instances, the amount in dispute and the amount of the appeal will be the amount in dispute that would be subject to resolution by the arbitration court.

8. In all the foregoing instances, a cassation appeal is obviously permissible only when the amount of the appeal is [at least] PLZ 500 (subject to [Civil Procedure Code] Art. 425 §§ 2 and 3 and Art. XX §1 of the regulations introducing [the Civil Procedure Code]).

Data wydania: 28-05-1938 | Sygnatura: C III 2479/36 and C III 1301/36

Key issues: state court assistance, arbitrator, arbitration agreement, recognition and enforcement of domestic arbitration award

id: 20075

Polish Supreme Court ruling dated 19 November 1937 Case No. C I 2960/36

1. Interference in arbitration by the state courts must be limited to instances strictly provided for by statute. Thus, as Civil Procedure Code Art. 485 §1 provides for appointment of the presiding arbitrator by the state court upon application of a party only when the arbitrators have failed to agree on the selection, that court may not intervene in a case where the parties have failed to agreement on the selection of the presiding arbitrator who was to be appointed upon their mutual agreement.

2. [Civil Procedure Code] Art. 491 §1(4), which provides that an arbitration clause shall cease to be in force “if the parties cannot agree on an arbitrator whom under the clause they were to appoint jointly,” does not draw any distinction as to whether the parties failed to agree on selection of an arbitrator for a single-member panel or a three-member panel, or whether the person who was to be selected upon mutual agreement was intended to be a presiding arbitrator; thus what is fundamentally important is that the manner in which the parties agreed that the court would be empanelled proved impossible because of lack of agreement on selection of an arbitrator.

Data wydania: 19-11-1937 | Sygnatura: C I 2960/36

Key issues: state court assistance, arbitrator

id: 20068

Polish Supreme Court ruling dated 18 August 1932 Case No. R 385/32

In light of the legal finality of the resolution ... appointing an arbitrator ..., there is no legal basis for holding the arbitration clause to be ineffective, because the basis that arose through [the arbitrator’s] resignation was cured as a result of appointment of another arbitrator by the state court. The arbitration clause may be deemed ineffective pursuant to [former Austrian] Civil Procedure Code § 583(2)(2) only if an arbitrator refused to perform his duties or is in excessive delay in performing his duties.

Data wydania: 18-08-1932 | Sygnatura: R 385/32

Key issues: state court assistance, arbitrator, arbitration agreement

id: 20032

Polish Supreme Court ruling dated 18 October 1929 Case No. C 1162/28

Decisions issued by the court of first instance on appointment of arbitrators and specification of the terms of the submission, whether granting the application or denying it, are not subject to interlocutory appeal.

Data wydania: 18-10-1929 | Sygnatura: C 1162/28

Key issues: state court assistance, arbitrator

id: 20020

Warsaw Appellate Court order dated 6 July 1926 Case No. IC N 89/26

This provision [former Civil Procedure Law Art. 1370¹] that consideration of claims referred to in Civil Procedure Law Art. 1370 shall lie with the court which would have jurisdiction in the event of a judicial dispute should be understood as reiterating the general rule with respect to jurisdiction of the court depending on the amount sought by the plaintiff.

Data wydania: 06-07-1926 | Sygnatura: IC N 89/26

Key issues: state court assistance, arbitrator

id: 20306

Polish Supreme Court ruling dated 1 June 1926 Case No. R 263/26

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.

Data wydania: 01-06-1926 | Sygnatura: R 263/26

Key issues: state court assistance, arbitration procedure

id: 20003

Arkuszewska Aneta, Kościółek Anna

Openness of court proceedings related to arbitration proceedings and the confidentiality of arbitration [Original title: Jawność postępowania sądowego związanego z postępowaniem arbitrażowym a poufność arbitrażu]

[in:] Barańska Anna, Cieślak Sławomir (eds), Ars in vita. Ars in iure. Professor Janusz Jankowski anniversary volume [Original title: Ars in vita. Ars in iure. Księga Jubileuszowa dedykowana Profesorowi Januszowi Jankowskiemu], Warsaw 2018, p. 615-632

Key issues: state court assistance, arbitration procedure

id: 32102

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

Asłanowicz Marcin

Rules and Procedure of Challenge to a Member of the Arbitral Tribunal in the Arbitration Proceedings [Original title: Zasady i tryb wyłączenia członka zespołu orzekającego w postępowaniu arbitrażowym]

PPH 2013, No. 8, p. 11-17

Key issues: state court assistance, arbitrator

id: 31180

Pörnbacher Karl, Baur Sebastian

The New French Arbitration Law, the UNCITRAL Arbitration Rules and IBA Rules on the Taking of Evidence in International Arbitration

Biul. Arb. 2010-2011, No. 4, p. 52-64

Key issues: general works, state court assistance, arbitrator, arbitration agreement, arbitration procedure, arbitration award, petition to set aside arbitration award

id: 30992

Bieliński Arkadiusz

a commentary to Art. 1183-1193

[in:] Marciniak Andrzej (ed.), The Polish Civil Procedure Code. A commentary 2020. Vol. V. Art. 1096-1217 [Original title: Kodeks postępowania cywilnego. Komentarz 2020. Tom V. Art. 1096-1217], 1st edition, Legalis

Key issues: general works, state court assistance, arbitration procedure

id: 32477

Bieliński Arkadiusz

a commentary to Art. 1183-1193

[in:] Marciniak Andrzej (ed.), The Polish Civil Procedure Code. A commentary 2017. Vol. IV. Art. 1096-1217 [Original title: Kodeks postępowania cywilnego. Komentarz 2017. Tom IV. Art. 1096-1217], 1st edition, Legalis

Key issues: general works, state court assistance, arbitration procedure

id: 35232

Błaszczak Łukasz

Arbitration Court and State Court – Determination of Mutual Relations in the Light of the Provisions of the Civil Procedure Code [Original title: Sąd polubowny a sąd powszechny – określenie wzajemnych relacji w świetle przepisów kodeksu postępowania cywilnego]

[in:] Jan Olszewski (ed.), Arbitration and Mediation as Enterprise Supporting Instruments (Rzeszów 22-23.IX.2006) [Arbitraż i mediacja jako instrumenty wspierania przedsiębiorczości (Rzeszów 22-23.IX.2006)], Ius et Administratio 2006, Special Issue, p. 15-27

Key issues: state court assistance

id: 30102

Błaszczak Łukasz

Interim Injunction for Claims Pursued before an Arbitration Court (Selected Issues) [Original title: Zabezpieczenie roszczeń dochodzonych przed sądem polubownym (wybrane zagadnienia)]

[in:] Jan Olszewski (ed.) Sądy polubowne i mediacja [Courts of Arbitration and Mediation], Warszawa 2008, p. 239-254

Key issues: state court assistance, arbitration procedure

id: 30853

Błaszczak Łukasz

Relation between the Arbitration Court and the Common Court – Determination of Common Grounds [Original title: Relacje pomiędzy sądem polubownym a sądem powszechnym – określenie wzajemnych płaszczyzn]

PEP 2006, No. 9

Key issues: state court assistance, petition to set aside arbitration award

id: 30456

Nowaczyk Piotr, Bogucka Elżbieta

Anti-suit Injunctions in Poland - Possibilities and Perspectives [Original title: Anti-suit injunctions w Polsce - możliwości i perspektywy]

[in:] M. Łaszczuk (chair), M. Furtek, S. Pieckowski, J. Poczobut, A. Szumański, M. Tomaszewski (eds.), Arbitration and Mediation. A Commemorative Volume Dedicated to Dr Andrzej Tynel [Arbitraż i mediacja. Księga jubileuszowa dedykowana doktorowi Andrzejowi Tynelowi], Warszawa 2012, p. 346-357

Key issues: state court assistance, jurisdiction of arbitral tribunal

id: 31095

Broniszewska Joanna

Competence of an Arbitral Tribunal to Refer a Question for Preliminary Ruling [Original title: Kompetencja sądu arbitrażowego do zadania pytania prejudycjalnego]

ADR. Arbitraż i Mediacja 2016, No. 3, p. 5-17

Key issues: state court assistance, state court assistance, costs of arbitration, costs of arbitration

id: 31791

Broniszewska Joanna