arbitration agreement

1. [S]etting a time limit for the parties to submit evidence motions within an indicated period of time under pain of disregarding late evidence and statements cannot be deemed as an infringement of a party’s right to substantiate their statements.

2. When assessing whether a party was deprived of the opportunity to defend its rights in the proceedings before an arbitral tribunal, one should consider the course of the arbitration proceedings, also bearing in mind that the court is not authorized to review the ruling made on the merits and that in making an arbitration agreement the parties consciously waived submission to the strictures in place for proceedings before a state court.

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

4. 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, one of the parties is not heard and does not have the opportunity to address the evidence or 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 the party being deprived of the opportunity to defend itself. This happens only when a party has no opportunity to present and argue for its position. … . An arbitral tribunal is authorized to refuse to admit evidence motions of the parties and such a procedural decision does not constitute grounds to deem that the parties have been deprived of the opportunity to defend themselves.

5. It cannot be assumed that an arbitration award is in breach of the public policy clause only because the arbitration award is not complaint with certain provisions of substantive law.

6. Possible irregularities in application by an arbitral tribunal of Art. 484 § 2 of the PCPC, not leading in themselves to the arbitration award being contrary to the fundamental principles of the legal order, cannot be relevant in proceedings initiated by a petition to set aside the arbitration award… .

1. [A]n arbitration agreement is an agreement governed by the directives set out in Art. 65 of the Polish Civil Code… .

2. The indication of a permanent court of arbitration or an expression of will to refer a case to an ad hoc arbitral tribunal constitute essentialium negotii of an arbitration clause and lack thereof renders the arbitration agreement invalid or unenforceable – which shall be examined a casu ad casum.

3. An arbitration agreement that is vague, internally contradictory, which makes it impossible to determine, in a way of interpretation, the court of arbitration chosen by the parties shall be deemed unenforceable.

4. [C]onversion, in a way of interpretation, of an unenforceable or invalid arbitration agreement indicating a permanent court of arbitration into an effective arbitration agreement regarding an ad hoc arbitral tribunal is excluded. Conclusion of an arbitration agreement indicating a permanent court of arbitration is usually dictated by the characteristics of a specific arbitration institution, therefore there is no basis for finding that an arbitration agreement regarding an ad hoc arbitral tribunal may perform a substitute function for an arbitration agreement to refer a dispute to a particular arbitration institution… .

5. In the process of interpretation of an arbitration agreement, a state court cannot refrain from indicating the court of arbitration that is to hear a case. The possible unenforceability of such an agreement opens the way to having the case heard by a state court (Art. 1165 § 2 of the PCPC).

6. The predominant… view is that conclusion of an arbitration agreement does not exclude the filling, with a state court, of a motion for an attempt at settlement.

[A]rticles 267 and 344 TFEU must be interpreted as precluding a provision contained in an international agreement concluded between two Member States 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… .

Articles 267 and 344 TFEU must be interpreted as precluding national legislation which allows a Member State to conclude an ad hoc arbitration agreement with an investor from another Member State that makes it possible to continue arbitration proceedings initiated on the basis of an arbitration clause whose content is identical to that agreement, where that clause is contained in an international agreement concluded between those two Member States and is invalid on the ground that it is contrary to those articles.

1. [I]n case of doubts, one should always strive at maintaining the effectiveness of an arbitration agreement, which is hinted at by the lawmaker in Art. 1180 § 1 sentence 2 of the PCPC.

2. [T]he reasons of an arbitration award do not have to correspond to the requirements applicable to the reasons of a state court ruling, however, the content of the reasons needs to include the elements of the arbitral tribunal’s reasoning, which should indicate the correctness (soundness) of the award in the light of all materials (evidence) gathered in the case… .

3. [N]o reasons with respect to an award issued on the merits result in the award taking on the features of arbitrariness and discretion, which violates the fundamental principles of the rule of law… .

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. 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).

[T]he mere inclusion of an arbitration agreement in another country in a contract does not result in the invalidity of the arbitration agreement. Nevertheless, it is impossible to leave out the circumstances which led to the inclusion of the arbitration agreement in the contract, as well as it is impossible to leave out the wording of the contract, if the contract may affect the determination and assessment whether an activity of the contractor benefiting from the presumption indicated in Art. 17 (1) of the Act on National Court Register was characterized by good or bad faith.

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. There is no provision of law directly providing for expiration of an arbitration agreement if the financial situation of a party has been so deteriorated that they are not able to incur the costs of arbitration proceedings.

2. According to well-established views expressed in the doctrine, other reasons of expiration of an arbitration agreement include, as provided for in Art. 1168 § 2 of the PCPC, first of all, the following situations directly provided for in the Polish Civil Procedure Code: refusal to act as an arbitrator by the arbitrator indicated directly in an agreement, but the refusal to act as an arbitrator may also take place in the course of the proceedings on the part of persons who have performed the function of an arbitrator so far. As other reasons preventing an arbitrator to act as such, the following reasons, in particular, are indicated: death of an arbitrator, their long-term illness, deprivation of liberty (Art. 1168 § 1 of the PCPC), as well as refusal by a particular arbitration institution and the impossibility to perform an arbitration agreement (Art. 1168 § 2 of the PCPC) and, moreover, a situation when the unanimity or majority of voices required by the agreement cannot be obtained, if the case is heard by an arbitral tribunal in a composition of more than one arbitrator (Art. 1195 § 4 of the PCPC). Another instance of the inability of an arbitration tribunal to hear a case, which is not directly indicated in Art. 1168 § 2 of the PCPC, is for example, the situation of liquidation of the permanent court of arbitration indicated in the arbitration agreement… or if it is impossible to compose the arbitral tribunal in the proceedings in a manner that is required for the resolution of the case. Their common feature is that the obstacle to perform the arbitration agreement pertains to the arbitrator or the arbitral institution indicated by the parties, and not to an external reason, in particular, relating to one of the parties of the arbitration agreement. Moreover, these are all objective circumstances of a permanent nature. Such circumstances cannot include the deterioration of the claimant’s financial situation, for example due to the fact that it may change in the future.

3. Art. 1168 § 2 of the PCPC specifies the reason for an arbitration agreement to cease to be in effect as the circumstance that the hearing of the case by an arbitral tribunal from this Court of Arbitration emerged to be impossible for other reasons, which means that this regulation puts emphasis on the occurrence of a reason of this impossibility relating to the arbitral tribunal. What is more, although the Polish Civil Procedure Code does not stipulate expressly the reasons of expiration of the legal force of an arbitration agreement, they also include granting of a final ruling by a state court in the dispute which can be decided by the arbitral tribunal, and the lapse of the time limit with the reservation of which the arbitration agreement was concluded or fulfilment of a condition subsequent stipulated in the arbitration agreement.

4. Art. 1168 of the PCPC stipulates the situation when an arbitration agreement may cease to be in effect (unless the parties have stipulated other legal consequences of occurrences covered by this provision). The enumeration contained therein is therefore purely exemplary, in this sense that the parties may indicate other situations which will result in expiration of the arbitration agreement (the arbitration agreement ceasing to be in effect). Loss of the legal force by an arbitration agreement may also take place under other circumstances than those mentioned above, in particular in the event of conclusion of a written agreement terminating the arbitration agreement. There are also other reasons related to the content of the parties’ agreement and of the arbitration agreement related thereto…, for example non-fulfilment of a condition precedent or fulfilment of a condition subsequent (Art. 89-94 of the Polish Civil Code), as well as evasion of legal consequences due to an error, deception or threat (Art. 84-87) or other events specified by the parties as reasons for the arbitration agreement to cease to be in effect.

5. There is view presented in the doctrine that that the reasons for an arbitration agreement to cease to be in effect may sometimes include termination for an important reason or withdrawal from an arbitration agreement. It is, however, impossible to share this view, because it would be pointless to conclude an arbitration agreement, if each party were to be able to evade the consequences thereof by an unilateral legal act, so without the need to cooperate with or to obtain a consent of the second party.

6. The principles arising out of the Constitution of the Republic of Poland regarding the state judiciary, including Art. 45 of the Constitution, cannot be applied to arbitration which derives its competence to resolve a dispute from a free, independent decision made by the parties themselves as to the way of exercising of their private rights… .

7. [I]t follows from Art. 147a of the Bankruptcy Law that not a mere lack of funds, but making of a declaration of will on withdrawal from an arbitration agreement results in expiration thereof.

8. Unenforceability (the inability to perform) of an arbitration agreement refers to arbitration agreements which do not infringe any mandatory provision of law and are, in fact, valid, but they present virtually insurmountable difficulties in conducting arbitration proceedings on their basis. Expiration of an arbitration agreement means a definitive discontinuation of the effects made by the agreement due to the circumstances which occurred after the agreement was made.

9. An arbitration agreement is unenforceable, if it stipulates requirements towards persons who are to be arbitrators that in fact it is impossible for an arbitral tribunal to be constituted, since it is impossible to indicate any persons who meet such requirements. An arbitration agreement is also unenforceable, if commencement of arbitration proceedings is not possible at all for other reasons, with the exception of the reasons leading to the expiration of the arbitration agreement. An arbitration agreement shall be deemed unenforceable, if it indicates, as the place of arbitration, a state in which, for obvious reasons, it is impossible to conduct arbitration proceedings (for example, due to a war in that state). An arbitration agreement that has been formulated so vaguely that it is impossible to determine its content may also be deemed unenforceable. Another example of such a situation is when the parties have concluded an arbitration agreement indicating a permanent court of arbitration at an institution which has been liquidated or the parties have concluded an arbitration agreement indicating the jurisdiction of a permanent court of arbitration which is impossible to be identified by reasonable interpretation of that indication… .

10. [I]nterpretation of Art. 1165 § 2 of the PCPC, in the scope of a prerequisite of unenforceability of an arbitration agreement, should also take into account objective and permanent prerequisites of impossibility of initiating and conducting of proceedings before this court of arbitration. Such prerequisites also include, according to the Court of Appeal, the existence of objective and permanent reasons which realistically prevent a party from covering the costs of commencement and conducting of arbitration proceedings and such objective and permanent inability absolutely results out of the evidentiary material collected in the case… .

11. There are many arguments in favour of the substantive-law nature of the arbitration agreement. For example, the fact that an arbitration agreement remains binding also for the legal successors of the parties both in terms of general and specific succession, because it is the legal relation or the object of a dispute, and not the specific parties to the dispute that are submitted to arbitration, or the fact that there are no obstacles to apply substantive law provisions regarding the capacity for legal acts, nullity of legal acts and defects of declaration of will by the assessment of the effectiveness of the arbitration award. The fact that conclusion of an arbitration agreement does not interrupt the limitation period is also in favour of the substantive nature of the arbitration agreement. Also the character of the power of attorney necessary to effectively enter into an arbitration agreement on behalf of a principal unequivocally indicates the substantive-law character of the arbitration agreement.

12. The pleading of the existence of an arbitration agreement raised by the respondent, which is consistent with the provisions of law and the purpose of the institution of the pleading of the existence of an arbitration agreement, i.e. with having the case heard before the relevant adjudicative forum, as agreed by the parties, cannot be considered a procedural abuse within the meaning of Art. 3 of the PCPC.

13. Abuse of an individual right is not a procedural activity of raising a plea of an arbitration agreement.

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.

1. [I]f a party to a dispute in proceedings before a foreign arbitral tribunal did not contest the jurisdiction thereof and began substantial defense, such a party cannot efficiently rely on non-existence… of the arbitration agreement in the proceedings relating to recognition of the arbitration award.

2. [T]he essence of the New York Convention is the requirement for the parties to proceed in accordance with the principles of good faith and fair practice, and thus a prohibition of acting contrary to these principles.

3. [T]he wording of Art. II (2) of the New York Convention calls for a liberal understanding of the concept of an “agreement in writing” as the requirement for effectiveness of an arbitration agreement and requires an acceptance that the parties have freedom with respect to selection of the form of the agreement in which they submit to the jurisdiction of an arbitral tribunal. It is thus possible to conclude such an agreement using means of reaching agreement at a distance, e.g. by an exchange of faxes or statements by email.

4. Referring to the issue of existence of grounds for refusal to enforce a foreign arbitration award, it should be noted, in accordance with the position presented in the doctrine, that provisions of the Polish Civil Procedure Code, including Art. 1215 thereof, may in practice apply only towards states which are not parties to the New York Convention of 1958.

5. With reference to the public policy clause (Art. V (1) letter b of the Convention (the New York Convention – insertion added))… the views of the doctrine regarding the fundamental principles of the legal order referred to in Art. 1214 § 3 point 2 of the PCPC shall apply. These are therefore the principles arising out of the Constitution and the principles governing particular fields of law, a violation whereof is incompatible with the very concept of a specific legal institution in Poland, not just with particular provisions regulating the same institution in the country of origin of the arbitration award, but also in Poland, as the state of enforcement of this award, which results in the conclusion that in the proceedings concerning recognition of the arbitration award, its substantive review is not allowed… .

[The Purchaser] is not (…) bound by the arbitration agreement made in the lease agreement (…).

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 (…).

1. [I]f a participant of legal proceedings before a foreign arbitral tribunal did not contest the jurisdiction of the arbitral tribunal and did undertake substantive defense, such a participant is not able to successfully seek non-existence or invalidity of the arbitration agreement in the proceedings concerning recognition and enforcement of the arbitration award… .

2. [T]he wording of Art. II of the New York Convention calls for a liberal understanding of the concept of an “agreement in writing”, as the requirement for effectiveness of an arbitration clause, and requires an acceptance that the parties have freedom with respect to selection of the form of the agreement in which they submit to the jurisdiction of an arbitral tribunal. It is thus possible to conclude such an agreement also using means of reaching agreement at a distance, for example by an exchange of faxes or statements by email.

3. With reference to the public policy clause (Art. V (1) (b) of the New York Convention), the Polish Supreme Court in its case law explained that the views of the doctrine regarding the fundamental principles of the legal order referred to in Art. 1214 § 3 point 2 of the Polish Civil Procedure Code shall apply. In other words, these are the principles arising out of the Constitution and the principles governing particular fields of law, a violation of which is incompatible with the very concept of a specific legal institution in Poland, not just with particular provisions regulating the same institution in the country of origin of the arbitration award and in Poland, as the state of execution of the award, which results in the conclusion that in proceedings concerning enforcement of an arbitration award, its substantive review is not allowed… .

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.    

1. [A]n appeal against a court order concerning recognition of a foreign arbitration award is decided at a hearing in camera.

2. [A]n application concerning enforcement of a foreign arbitration award by granting of an enforcement clause, as well as an appeal against this order shall be decided by courts at hearings in camera (…).

3. [I]t shall be assumed that when Art. 1215 § 1 of the PCPC indicates the court which “rules after conducting a hearing”, this means, similarly as in the case of the preceding Art. 1214 § 1 of the PCPC, only the court of first instance. This conclusion is supported by the provisions of Art. 1158 § 1 of the PCPC.

4. In view of (…) the thesis that a party which entered into a dispute before a foreign arbitral tribunal cannot claim in the proceedings for enforcement of the award of this foreign arbitral tribunal that an arbitration agreement does not exist, it should be noted, above all, that the Court of second instance (…) has failed to apply this sanction to the participant of the proceedings. Nevertheless, it must be taken into consideration that the doctrine and case law (…) approve of such a position, although the New York Convention does not provide for the preclusion of a pleading of an arbitration agreement. In its reasoning it is emphasized that the essence of the New York Convention is to make the parties act in accordance with the principles of good faith and with the public decency, and thus the parties are prohibited from acting contrary to these principles. This interpretation makes it impossible to take disloyal actions against co-participants and the arbitral tribunal. However, it should be born in mind at all times that the presented view concerns preclusion of pleadings which the application’s opponent had failed to raise in the deliberative proceedings before the arbitral tribunal. If the pleading of non-existence or invalidity of an arbitration agreement was raised before a foreign arbitral tribunal, a party to the proceedings may still effectively invoke this pleading in the proceedings concerning enforcement of the arbitration award in Poland. This opportunity is not taken away, if the arbitral award has not been challenged before the courts of its origin, which is optional in the light of the New York Convention.

5. Although this does not follow directly from the wording of Art. V (1) letter a in fine of the New York Convention, this provision shall be applied not only if an arbitration agreement is concluded, but is invalid. This provision shall also be applied in the situation when there is no arbitration agreement (no arbitration agreement has been concluded).

6. [I]t is assumed that a ‘written form’ includes also documents exchanged by means of distance communication. Although the provisions of the New York Convention done in 1958 do not expressly indicate other forms of distance communication, a teleprinter, a telefax and forms of electronic communication, including e-mails, are treated in the doctrine equally to a telegram, if they result in automatic written record of the transmitted text. An electronic signature is not required to exchange electronic correspondence. It is permissible to conclude an arbitration agreement also in the ‘ordinary’ electronic form, which does not require an electronic signature verifiable by a valid qualified certificate (…).

7. It is impossible to conclude an arbitration agreement either tacitly or implicitly, as the written form is required.

8. An arbitration agreement is not a provision of an obligatory agreement, even if this agreement has the form of a clause in the ‘main’ contract, and therefore its effectiveness is considered autonomously.

9. [A]ssessment of the validity and efficiency of an authorisation to conclude an arbitration agreement shall be made autonomously, i.e. regardless of the assessment of existence of the entitlement of the attorney-in-fact to perform a legal act which is the source of the legal relation on the basis whereof disputes may be subjected to the competence of the arbitral tribunal.

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. [I]nfringement of the provisions of substantive law shall be examined in the proceedings initiated by a petition to set aside an arbitration award only when the infringed provisions set principles of the legal order of the Republic of Poland, whereby the public policy clause shall be interpreted restrictively.

1. In fact, an effective pleading of existence of an arbitration agreement causes a state of inadmissibility of the proceedings, which makes it necessary to dismiss the lawsuit … .

2. [A]n arbitration agreement cannot violate the principle of equality, however, Art. 1161 § 2 of the PCPC in fact provides only one example of infringement of this principle, i.e. the arbitration agreement containing a provision which entitles only one party to bring a case before an arbitration tribunal provided for in the arbitration agreement or before a court … .

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. Under the current legislation, it is assumed that pursuant to Art. 1161 § 1 of the Polish Civil Procedure Code in each case an arbitration agreement is required to refer a dispute to arbitration. 

2. An arbitration agreement should unequivocally and precisely indicate that the parties covenant to refer specified disputes to arbitration.

1. If (…) a petition to set aside an arbitration award is based on the fact that the award was obtained by means of an offence or the award was issued on the basis of a forged or altered document or the petition is based on the charge of res iuducata, the petition may be filed within the time limit calculated from the day when the party learned of that ground. 

2. An arbitration agreement is a contract to which provisions of the Polish Civil Code apply.

1. An arbitration agreement is unenforceable when, for example, it stipulates such requirements towards persons who are set to be arbitrators, that in effect it is impossible for an arbitral tribunal to be constituted, since it is impossible to indicate persons who meet the requirements. An arbitration agreement is also unenforceable when commencement of proceedings before a tribunal is not possible due to other reasons. An arbitration agreement that has been formulated so vaguely that it is impossible to determine its content may be deemed unenforceable.

2. [W]hen an arbitration agreement turns out to be unenforceable, for example, because of improper indication of the arbitral tribunal, no such thing as conversion of such an agreement into an ad hoc tribunal arbitration agreement is possible.

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.

1. According to Art. 1161 § 1 of the Polish Civil Procedure Code, submission of a dispute to arbitration requires an agreement between the parties defining the subject of the dispute or the legal relationship under which the dispute has arisen or may arise. An obligatory element of such an agreement is indication that resolution of the dispute has been referred to an arbitral tribunal. It should be stressed that an agreement which does not contain the aforementioned statement is not an arbitration agreement … .

2. In the case, both mandate contracts contained a provision stating “all disputes arising out of a mandate contract shall be resolved amicably”. Such a provision does not contain at all any submission of disputes arising between the parties to resolution by an arbitral tribunal, irrespective of whether it would be a permanent arbitral tribunal or an ad hoc arbitral tribunal, that is established in the event of a specific dispute.

3. [A]micable dispute resolution is not equivalent to the institution of arbitration to which the parties submit the resolution of a dispute from a particular legal relationship. Art. 1161 of the Polish Civil Procedure Code stipulates a requirement of indicating jurisdiction of an arbitral tribunal directly, in a separate contract or in a so-called arbitration clause, which is one of the provisions of the main contract.

1. If an assigned claim was covered by an arbitration clause, the clause also exerts effects with respect to the assignee, which means that the assignee is bound inter alia by the negative effect of the clause in the form of exclusion of the jurisdiction of the state courts over disputes concerning the claim.

2. Declaration of the bankruptcy of the assignor of a claim after the assignment is made does not affect the effectiveness of the arbitration clause covering the assigned claim in relations between the current holder—the legal successor of the bankrupt (the assignee)—and the defendant. In that situation, at the time of declaration of bankruptcy the bankrupt is no longer a party to the clause, the effects of which passed to the assignee as properties of the assigned claim. Art. 142 and 147 of the Bankruptcy Law [prior to the 2015 overhaul introducing the Reorganization Law] referred to disputes to which the bankrupt is a party.

3. Although Art. 142 and 147 of the Bankruptcy Law used the broad phrase “arbitration clause made by the debtor,” this provision cannot be understood to mean that it provides for the loss of force of an arbitration clause to which the bankrupt was originally a party, regardless of whether this entity is still a party to the legal relationship covered by the clause.

4. Under Art. 1161 §1 of the Civil Procedure Code, an arbitration clause must indicate the subject of the dispute or the legal relationship under which the dispute has arisen or may arise. This necessity is intended to eliminate clauses covering the totality of existing or future disputes between the parties. However, the assessment of whether the clause meets this requirement must consider not only the wording of the clause, but also, in interpreting it, the other relevant circumstances in which the parties’ declarations were made, in this context linguistic and situational circumstances, as well as the parties’ intent.

5. The legal relationship to which the arbitration clause applies need not be expressly stated in the clause, but may also be determined through interpretation of the clause. As an arbitration clause is an expression of the autonomy of will of rationally acting parties, its interpretation should also comply with the principle of favor validatis, seeking, within the limits of permissible interpretation, to uphold the effectiveness of the parties’ declarations.

6. The recent legal literature and case law stress the trend toward broad interpretation of an arbitration clause, based on avoiding a split of competencies between the arbitral tribunal and the state court within the same legal relationship. The demand of this interpretation of an arbitration clause (in favorem jurisdictionis arbitrii) is apt, particularly in international trade, in disputes between businesses.

7. Submission to an arbitral tribunal of disputes arising out of a contractual relationship means that the competence of the tribunal extends to all claims for performance of the contract, claims arising in the event of non-performance or improper performance of the contract, claims for disgorgement of unjust enrichment arising in the event of invalidity or repudiation of the contract, as well as tort claims if they arise out of an event that also constitutes non-performance or improper performance of the contract.

1. According to Art. 1167 of the Polish Civil Procedure Code, a power of attorney to perform a legal act granted by a business entity shall also include authority to enter into an arbitration agreement with respect to disputes arising under such legal act, unless the power of attorney provides otherwise … . A power of attorney to perform a legal act in the meaning of the aforementioned provision means every kind of power of attorney referred to in Art. 98 of the Polish Civil Code, that is full power of attorney, indicating a kind of acts – so-called specific power of attorney and power of attorney to perform a legal act – so-called detailed power of attorney. However, a power of attorney to appear before courts – within the statutory limits (Art. 91 of the Polish Civil Procedure Code).

2. [A]n arbitration agreement adequately identifies 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 the contracts concluded by the parties … .

3. [S]ubmission to an arbitral tribunal of disputes under a contractual relationship means that the jurisdiction of the arbitral tribunal extends to any and all claims for performance of the contract, claims arising in the event of non-performance or improper performance of the contract, claims to restore undue consideration arising in the event of invalidity of the contract or rescission of the contract, as well as tort claims, if they arise out of an event that also constitutes non-performance or improper performance of the contract … .

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. It should be noted that according to Art. 1207 § 1 and 2 of the PCPC, the provisions governing an appeal shall apply accordingly to a petition to set aside an arbitral award, with modifications resulting from title VII part V of the Polish Civil Procedure Code. Although it is a form of review, a petition is not, however, an appellate instrument, as unlike in appellate proceedings, the role of the state court is not to reconsider the case resolved by the arbitration award, applying the provisions of substantive and procedural law. In the proceedings before a state court initiated by a petition, the court does not examine whether the arbitration award is contrary to substantive law or is grounded in the facts cited in the award, or whether these facts were properly established. The state court considers the case only from the perspective of the grounds for setting aside the award and evaluates the soundness of the petition only in the light of the grounds set forth in Art. 1206 § 1 and 2 of the PCPC, considering at its own initiative only the grounds set forth in Art. 1206 § 2 of the PCPC. 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. A violation of overriding principles in force in the Republic of Poland may result – if it is to constitute grounds for setting aside an arbitration award – in an infringement of the substantive law … .

2. [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. 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 the 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 award under Art. 1206 § 2 point 2 of the PCPC 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. The public policy clause on the ground of Art. 1206 § 2 point 2 is commonly identified with fundamental constitutional principles and overriding principles of specific areas of law, including civil, family and procedural law. An arbitration award may be set aside on the basis of a public policy clause if such an award is found to be contrary to a specific, absolutely binding norm which is included in the aforementioned principles. In the case-law of the Polish Supreme Court … it was for example indicated that the fundamental principles of the Polish legal order include, among other things: the principle of freedom of the will of the parties in civil law, the pacta sunt servanda principle and the principles setting limits of the freedom to form contracts and consequently the limits of the pacta sunt servanda principle, as well as the principle of freedom of business activity, the principle of contractual justice and the principle of compensatory nature of liability for damages … .

5. The principle of being bound by a state court when the court rules, expressed in Art. 321 § 1 of the PCPC, is not one of the fundamental principles of the Polish legal order within the meaning of Art. 1206 § 2 point 2 of the PCPC … . The principle of being bound by a state court when the court rules is not of an absolute character, because in the PCPC there are provisions which oblige a state court to rule on issues not covered with a prayer for relief.

6. Except for the fact that the principle expressed in Art. 321 § 1 of the PCPC is not of an absolute character, also … its limits were subject to amendments made by the legislator … . Therefore, the prohibition of ruling above a prayer cannot be deemed as one of the fundamental principles of the legal order of the Republic of Poland, because it is not an absolute, stable and permanent principle. First fulfilment of these criteria justifies inclusion among the principles of fundamental principles.

7. [The principle of adversariality], undoubtedly very essential in civil procedure, is not of an absolute character – it is limited, for example, in proceedings regarding juveniles and in proceedings in labour law matters. The model of civil suit based on the principle of adversariality was also subject to many amendments. This principle is not characterized by permanence and stability, which – as it was indicated above – is relevant for the fundamental principles of legal order … .

1. From Art. II of the New York Convention it follows that recognition of an agreement as being in writing is not conditional upon a handwritten signature, which – according to Art. 78 § 1 of the Polish Civil Code – is an obligatory element of the written form of a legal act in the national legal order . Art. II (2) of the New York Convention stipulates that an agreement in writing means not only a contract with an arbitral clause contained therein or a compromise, but also an agreement concluded not only by means of an exchange of letters which can be (but do not have to be) signed but also by means of an exchange of telegrams, which do not contain the handwritten signature. In this light, it is undoubtedly important that a relevant contractual provision concerning the arbitration clause should be included in the document containing the content recorded in writing, which enables to determine who made the statement contained therein, so that the other party can get familiar therewith as a result of exchange of the documents.

2. Art. V (1) of the New York Convention stipulates that recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that: a) the parties to the agreement referred to in Article II were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or b) the party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or c) the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized or enforced; or d) the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or e) the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.

3. Pursuant to Art. V (2) of the New York Convention, recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that: a) the subject matter of the difference is not capable of settlement by arbitration under the law of that country; or b) the recognition or enforcement of the award would be contrary to the public policy of that country.

4. As regards the public policy clause (…). In the case law of the Polish Supreme Court it was explained that with respect to this issue the views of the judicature concerning the fundamental principles of the legal order, which are currently stipulated in Art. 1214 § 3 (2) of the PCPC, apply. These are therefore the principles arising out of the Constitution and the principles governing particular fields of law, a violation whereof is incompatible with the very concept of a specific legal institution in Poland, not just with particular provisions regulating the same institution in the country of origin of the arbitration award and in Poland as the state of enforcement of this award (…). This leads to the conclusion that in the proceedings concerning enforcement of the arbitration award, its substantive control is not allowed (…).

1. [T]he claimant and the respondent agreed (…) that “the parties shall try to resolve any disputes which may result from performance of the contract in an amicable way. Should it prove impossible to resolve a dispute in such a way, the dispute shall be resolved by the Polish state court based in O.”. (…) the phrase “in an amicable way” should rather be interpreted as a call for pre-litigation mediation. (…). The fact that the term “arbitral tribunal” was omitted from the analysed fragment makes it impossible (…) to conclude that in this case the dispute was to be resolved by means of arbitration.

2. [T]he essence of the institution of the arbitration agreement is a firm referral of a dispute to arbitration. If a contract does not stipulate that a dispute is to be resolved by an arbitral tribunal, then no arbitration agreement is effectively concluded (…); an arbitration agreement is neither concluded, if an arbitral tribunal (or an abstract procedure of amicable dispute resolution) had only a conciliatory function, and its actions were limited only to mediation aimed at having the parties conclude a settlement (…).  

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. The mere fact that the parties referred a dispute to arbitration cannot (…) make such an agreement contrary to the principles of community life, if such method of dispute resolution is permitted by law.

2. The principle of equal rights of the parties is one of the main assumptions of arbitration in general. A special manifestation thereof is the requirement that no provision of the arbitration agreement violates the equality of the parties (Art. 1161 § 2 of the Polish Civil Procedure Code). First of all, this requirement applies to the constitutive elements of an arbitration agreement. Nonetheless, it should be assumed that it also applies to provisions which are included together with the arbitration agreement in the same document, therefore, in particular to provisions covering the elements of understandings (contracts, agreements) of the parties as to proceedings before an arbitral tribunal. 

3. The fact that a petitioner is not at the moment interested in having the dispute resolved by an arbitral tribunal does not make the arbitration agreement contrary to principles of community life.

1. Although it is a form of review, a petition [to set aside an arbitration award] is not an appellate instrument, as unlike in an appellate proceeding, the role of the state court is not to reconsider the case resolved by the arbitration award, applying provisions of substantive and procedural law. In the proceeding before the state court initiated by the petition, the court does not examine whether the arbitration award is contrary to substantive law or is grounded in the facts cited in the award, or whether these facts were properly established. The state court considers the case only from the perspective of the grounds for setting aside the award and evaluates the soundness of the petition only in light of the grounds set forth in Civil Procedure Code Art. 1206 §§ 1 and 2, considering at its own initiative only the grounds set forth in Art. 1206 §2.

2. By adopting an arbitration clause, the parties limit their own constitutional right to resort to the courts. When deciding to submit a potential dispute to an arbitration court for resolution, they must be aware of both the positive and negative consequences of including relevant provisions in the arbitration clause. Unlike a state court, an arbitration court considering cases need not strictly apply 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 rulings by arbitration courts is limited to the instances strictly defined by law.

3. Ruling under principles of equity (ex aequo et bono) consists of seeking a resolution to a dispute in accordance with the directives of fairness and justice, as understood by the arbitrators, regardless of the legal norms in force. This does not mean arbitrariness in the assessment of the case or the ability to ignore the state of facts, and thus the arbitrators must also admit evidence, analyze the collected material, and take into consideration the provisions of the contract in force between the parties.

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.

1. There is no disagreement in the legal literature or the case law concerning the separability of an arbitration clause from the “main” contract. It is consistently accepted that the validity of an arbitration clause should be evaluated autonomously. Even when it is included in the form of a clause in the “main” contract, the arbitration agreement is not a provision of the contract, and thus its effectiveness is examined independently.

2. The assessment of the existence of authorization of an attorney-in-fact to conclude the arbitration agreement should be made independently of the assessment of the existence of the attorney’s authority to conclude the legal act which is the source of the legal relationship out of which disputes are to be submitted to the jurisdiction of the arbitral tribunal. Consequently, the assessment of the effectiveness of the authorization to conclude the arbitration clause is independent of the assessment of the effectiveness of the authorization to conclude the “main” contract, and a determination that the attorney-in-fact was duly authorized to conclude the contract will not be controlling for the assessment of whether he was also duly authorized on behalf of the principal to submit disputes arising out of the contract to the jurisdiction of the arbitral tribunal. In other words, the law governing the arbitration agreement itself does not extend to issues connected with the power of attorney, i.e. issues connected with the authorization to conclude the arbitration agreement do not fall within the scope of the statute of the arbitration agreement.

3. The requirement of a power of attorney to make a specific transaction must arise pursuant to a statute ([Civil Code] Art. 98, end of the second sentence), which means that the requirements for this cannot be imposed if not expressly provided for a given action by any statute. No statute provides for such a requirement with respect to the type of power of attorney in relation to an arbitration agreement. This means that there are no grounds for holding that an arbitration agreement could be concluded only by an attorney holding a power of attorney for this specific action; such a power of attorney is therefore not essential for the effectiveness of the arbitration agreement, although obviously it is sufficient.

4. Generally, an arbitration agreement is an act exerting a direct impact on the manner of realization of the legal protection to which the party is entitled. The rank of an arbitration agreement and its procedural consequences are thus serious enough that concluding an arbitration agreement should be treated as an act outside the ordinary course of business. Its effects are of a procedural law nature, shaping the procedural situation of the party bound
by the agreement.

5. In the field of international arbitration, written form [for an arbitration agreement] understood [as the exchange of documents by email] is indeed sufficient, even if it does not meet the requirements for written form provided by the Civil Code.

1. The scope of review of an arbitration award is limited only to the prerequisites indicated in Art. 1206 of the Polish Civil Procedure Code and the defectiveness of such an award in terms of facts or law is not generally examined in the proceedings initiated by a petition to set aside an arbitration award. Limitation of the cognition of the state court in such proceedings has its source in the voluntary resignation from the constitutional right to court by the parties to the arbitration agreement… . … the state court is not bound by the grounds for setting aside of an arbitration award invoked in the petition, so ex officio it shall examine only … the prerequisites enumerated in Art. 1206 § 2 of the PCPC … .

2. [A]rt. 365 § 1 of the PCPC is one of the fundamental systemic principles of the Polish law and the violation of this provision shall be assessed as a violation of the fundamental procedural principles of the legal order … .

3. Submission to an arbitral tribunal of disputes under a contractual relationship means in other words that the jurisdiction of the arbitral tribunal includes any and all claims for performance of the contract, claims arising in the event of non-performance or improper performance of the contract, claims to restore undue consideration arising in the event of invalidity of the contract or rescission of the contract, as well as tort claims if they arise out of an event that also constitutes non-performance or improper performance of the contract … .

4. A violation of the provisions of substantive law by an arbitral tribunal only exceptionally may be a basis for setting aside of an arbitration award, namely, when the infringed norm is of ius cogens character and a special role in the domestic legal system is attributed to it, usually in the context of certain constitutional principles. The assessment whether there are grounds for applying the public policy clause shall, however, be formulated ad casum and thus in a restrictive manner … .

5. [T]he arbitration court’s erroneous interpretation or incorrect application of the provisions regarding the limitation periods or preclusion shall not be regarded as violation of fundamental principles of the legal order … .

6. [T]he requirements in terms of the reasons for the arbitration award feature, with reference to the reasoning of the state court’s judgment, some minimalism and to find them fulfilled it is sufficient if it is possible to deduce from them what grounds the arbitral tribunal has based on.

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.

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.

The assertion of the impermissibility of the cassation appeal because it does not meet the requirement set forth in Art. 398² §1 of the Civil Procedure Code concerning the amount in dispute in the cassation appeal is groundless. The requirement set forth in that provision does not apply to a cassation appeal in a proceeding for recognition and enforcement of an arbitration award or a settlement concluded before an arbitral tribunal (Civil Procedure Code Art. 1215 §3), because the permissibility of a cassation appeal is governed in each proceeding in a specific manner, which means that the reference provided in Civil Procedure Code Art. 13 §2 does not apply to the issue of the permissibility of this instrument of review in proceedings other than a civil trial.

The rule provided in Art. 5 of the Civil Code cannot be applied to institutions of procedural law. … Thus abuse of a subjective right is not, for example, a procedural act such as filing a statement of claim, but pursuing claims via the courts when this constitutes exercise of a right contrary to principles of social coexistence or the socioeconomic purpose of the right. … In asserting the defence of the arbitration clause, the defendant did not exercise any subjective right arising out of a civil-law relationship, but only a procedural entitlement arising under Art. 1165 §1 of the Civil Procedure Code.

1. A petition to set aside an arbitration award is a claim to establish a legal relationship, in which the plaintiff (the petitioner) demands that the state court issue a judgment setting aside (vacating) the existing legal relationship established by the arbitration award. A judgment by the state court granting the petition is of a quashing nature, as in such situation the state court can only set aside the arbitration award, and only insofar as demanded by the petitioner.

2. Even though the relief stated in a petition to set aside an arbitration award may involve setting aside the entirety of the arbitration award or part of the award, the state court is bound by the scope of the petition against by the award by the petitioner, and thus the bounds of the petitioner’s application.

3. Exceptionally, it is possible to grant a demand to set aside an arbitration court in part, but only when the challenged part of the ruling can be entirely separated from the rest of the award.

1. An arbitration clause included in an agreement of the parties cannot be a limitation on exercise of a subjective right. Such a clause has a different purpose; if the relevant objection is raised, it excludes the possibility of pursuing a claim covered by the clause before the state court. An arbitration clause aims at exerting procedural effects, preventing resolution of the dispute by the state court. It does not automatically carry over to a proceeding to defeat execution, as that does not serve to pursue a claim. It is a claim to establish a right.

2. Civil Code Art. 498 does not contain a requirement that a claim be undisputed or that the claim presented for setoff be undoubted as to its existence and easy to demonstrate. All the more, there are no grounds for requiring that it be reduced to a judgment, including an arbitration 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. The obligation to exhaust the route of negotiations before seeking arbitration is not a provision that invalidates the arbitration clause.

2. Submission to arbitration of disputes under a contractual relationship means submission to arbitration of all claims, including tort claims.

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 characteristic and results from the nature of a claim for interest and of auxiliary consideration by the party performing such claim in relation to the principal claim that in agreements there is no need to conclude separate provisions concerning such claims and consideration. Because they share the fate of the principal claims and consideration, it is understandable that they are also governed by provisions referring to the principal consideration. This rule also applies in the case of an arbitration clause.

2. If a party seeking an award of payment does not pursue a claim for interest on delay at the same time, including because the delay arises only as a result of failure to make timely performance of an arbitration award, such claim for interest may be pursued in a separate proceeding. This proceeding is subject to the same procedure which pursuit of the principal claim was subject to. For these reasons the appellant incorrectly disputed the coverage by the arbitration clause of the claim for interest and in this case there was no legally unjustified extension of the arbitration clause within the meaning of Civil Procedure Code Art. 1161 § 1.

3. If consideration of the case by the arbitration court in accordance with the arbitration clause proves impossible because of the inability to appoint arbitrators, or due to circumstances preventing consideration of the case before the arbitration court indicated in the clause, or for both reasons as occurred in this case, and there are no other provisions in the parties’ agreement, then under Civil Procedure Code Art. 1168 the arbitration clause lapses by operation of law.

1. Interpretations of Art. IV of the New York Convention must reflect its functional connection with Art. II of the convention, which specifies the requirements for an agreement including an arbitration clause. Art. II(2) of the New York Convention provides that an “agreement in writing” for purposes of Art. I(1) [sic—Art. II(1)] shall include an arbitral clause in a contract or an arbitration agreement for example in the form of an exchange of letters or telegrams. It is beyond dispute that Art. II(2) of the New York Convention contains an autonomous regulation of arbitration agreements. It is commonly accepted in the case law and commentaries that the wording of Art. II(2) of the New York Convention calls for a liberal understanding of the concept of an “agreement in writing” as the requirement for effectiveness of an arbitration clause, and requires an acceptance that the parties have freedom with respect to selection of the form of the agreement in which they submit to the jurisdiction of the arbitration court. It is thus possible to conclude such agreement also using means of reaching agreement at a distance, e.g. by an exchange of faxes or statements by email. Following this line, the view that is aptly presented in the commentaries is that the applicant fulfils the requirement of submission of the agreement in the original if it files a document which constitutes evidence of conclusion of the specific agreement, regardless of its form. Thus it is obvious that to evaluate whether the applicant has filed the required document concerning the agreement containing the arbitration clause, it was necessary to determine whether the form of the document is consistent with the manner in which the agreement was concluded. Written form of the agreement is not excluded, for example, if the respondent in the proceeding sent a fax of the text of the agreement signed by it, and the applicant placed its signature on that.

2. A condition of recognition or enforcement of an arbitration award should be the existence of the arbitration agreement, and not submission of a document confirming its conclusion. For this reason the position is also presented that the applicant’s failure to submit the agreement referred to in Art. IV of the New York Convention does not prevent granting the application if the existence of the clause for arbitration before a foreign arbitration court is undisputed.

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.

The objective scope of a clause under which arbitration is provided not only for disputes arising out of the contract but also for disputes related to the contract extends to disputes concerning a novation of the existing obligation related to the contract.

1. Clause 20.8 of the [FIDIC Conditions of Contract for Plant and Design-Build] could apply in all instances where the parties did not decide for whatever reason to submit a dispute to the Dispute Adjudication Board. This conclusion is also justified by the placement of this provision. After detailed provisions concerning dispute resolution, at the end of the conditions of contract the parties decided to include a kind of savings clause maintaining the arbitration clause
in force regardless of whether the procedures provided for earlier were followed or not.

2. The argument that the arbitration clause gave the party initiating the proceeding the exclusive choice of which court the dispute should be resolved by should not be upheld.

3. The court of appeal did not share the view that the defence [of the arbitration clause] could be asserted at the latest at the stage of the dispute adjudication procedure conducted between the parties.

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.

1. The wording of Civil Procedure Code Art. 1215 §2 leaves no doubt that it applies only to an award issued by an arbitration court abroad or a settlement concluded before such court.

2. The mere fact that a party belongs to the employers’ organization where the arbitration court operates is not grounds for finding the arbitration agreement to be invalid.

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. Under the circumstances of the specific case, it is essential that the parties making an arbitration clause fulfilled the requirements set forth in Civil Procedure Code Art. 1161 § 1 to adequately identify the subject matter of the arbitration clause. Precise determination of this must adequately identify the legal relationship which is subject to submission to the arbitration court for consideration.

2. Submission to an arbitration court of disputes arising out of a contractual relationship demarcates its authority to determine the existence, effectiveness and validity of the contract, any claims for performance of the contract, claims arising in the event of non-performance or improper performance of the contract, claims for restoration of consideration provided without foundation which arise in the event of the ineffectiveness of the contract or renunciation of the contract, tort claims if they arise out of an event which constitutes non-performance or improper performance of the contract, and, depending on the parties’ agreement, disputes arising against the background of a settlement concluded with respect to a claim arising out of the contract which contained an arbitration clause.

3. An arbitration clause concerns the broadly understood jurisdiction of the court to consider a case, and its fundamental effect is exclusion of the jurisdiction of the state courts in favour of the authority of the arbitration court. It therefore falls within the broadly understood functional definition of a procedural act, highlighting its subject matter and effects and the assumption that procedural acts should not be limited to unilateral acts.

4. There are exceptions to the rule that an arbitration clause is binding on the parties that made it, including exceptions concerning expansion of the bounds of the arbitration clause to include persons who are legal successors of the parties, under general as well as specific grounds, within the legal relationship submitted to consideration by the arbitration court.

5. The scope of examination of a court considering the defence of an arbitration clause which if granted would result in dismissal of the statement of claim (Civil Procedure Code Art. 1165 § 1) includes not only determination of the fact of existence of the agreement submitting the dispute to consideration by the arbitration court, but also whether the plaintiff’s claim, as expressed in the relief sought and the factual allegations in support of the claim, falls within the subjective and objective scope of the agreement. The necessity to consider this defence at the stage before joining issue on the merits of the case cannot be regarded as meaning that it is impermissible to address any substantive legal issues at all. If therefore the allegation that the claim asserted in the statement of claim falls within the scope of an arbitration clause requires examination of the content of the contract and the mutual intent of the parties that concluded it, the court may not decline to make such findings and resolve these issues.

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. Referring a case to arbitration by way of a contractual arbitration agreement is, as a matter of principle, binding only towards the parties to the contract. Exceptions to this principle must have an explicit statutory basis and thorough legal justification. Such a situation takes place in principle when rights and obligations are assigned by the parties to the contract to another entity.

2. [A]n arbitration agreement shall not have an effect on the legal situation of other joint and several debtors unless they do consent to refer a dispute to arbitration, i.e. conclude a contract including an arbitration agreement or accede to such an agreement … .

1. [T]he condition of enforcement of a foreign arbitration award is first and foremost an indication that the parties has been bound by an arbitration agreement.

2. The notion of compromise refers to a contract concluded in order to have a specific, existing dispute between the parties resolved. It should be distinguished from an arbitration clause relating to disputes which may arise only in the future from a particular legal relationship.

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. The regulations of the Civil Procedure Code governing arbitration are not uniform in character. The provisions governing issues involving the permissibility of a petition to set aside an award and the formal requirements and procedure for the petition are strictly procedural in nature, but the provisions setting forth the grounds for the petition, constituting the basis for the court’s ruling on the merits of the dispute and the justification for the petition, are the functional equivalent of provisions of substantive law.

2. Assertion of new grounds for the petition to set aside an arbitration award after the deadline for filing of the petition is impermissible. … The court ruling on a case seeking to set aside an arbitration award may not consider on its own motion the ground set forth in Civil Procedure Code Art. 1206 §1(1) which was not asserted in the petition and was precluded.

3. Recognizing as binding an agreement which does not specify the essential terms of the contract would be irreconcilable with the fundamental principles of the legal order of the Republic of Poland.

1. Pursuant to Civil Procedure Code Art. 1215 §1, the court shall rule on recognition or enforcement of an arbitration award issued abroad or a settlement concluded before an arbitration court abroad after conducting a hearing. This provision confirms the rule provided for adversarial proceedings in Civil Procedure Code Art. 148 §1 that cases are considered at a hearing. A departure from this rule should be interpreted narrowly. Therefore, if a provision specifies the type of cases that are considered at a hearing, this method of consideration applies regardless of whether the court upholds the claim (or application) or denies it.

2. The [New York] Convention sets forth the material conditions for recognition (primarily in Art. IV and V), and therefore a proceeding for recognition of a foreign arbitration award should be conducted primarily in accordance with the provisions set forth in the Convention, and on the basis of the Civil Procedure Code in other respects not governed there.

3. The requirements with respect to the form of conclusion of an arbitration agreement should be assessed according to the [New York] Convention, and not according to Civil Procedure Code Art. 1162.

4. A liberal interpretation of [New York Convention Art. II(2)] is accepted in practice, recognizing that the enumeration therein of methods of concluding an agreement is not exhaustive, but also includes other techniques used for reaching agreement at a distance.

5. It should be accepted that the law of the state in which an arbitration award was issued should decide on the issue of certification of the contents of the award.

6. The view that failure to enclose the documents specified in Civil Procedure Code Art. 1213 with an application for recognition does not constitute a formal defect that is subject to supplementation pursuant to Civil Procedure Code Art. 130 §1 in connection with Art. 13 §2 is incorrect.

7. The respondent was not named in the arbitration award, but only the business name under which he trades was stated. The correctness and effectiveness of such identification should be decided by the law of the state of origin of the award.

1. The assessment of legitimacy of an allegation concerning an arbitration agreement shall, as a matter of principle, cover only the claim in the form presented by the claimant (a claim understood procedurally).

2. [M]oreover, a claim for release of unfairly gained benefits referred to in Art. 18 (1) point 4 of the Unfair Competition Suppression Act [an obvious mistake, it is about Art. 18 (1) point 5 of the Unfair Competition Suppression Act – insertion added], as a dispute regarding property rights, remains at the disposal of the parties, and also may be the subject of a settlement concluded by the parties. Therefore it can also be covered with an arbitration agreement… .

3. Taking into account the admissibility of drawing up an arbitration agreement also in case of acts of unfair competition, it should be stated that such an arbitration agreement needs to unequivocally indicate that such kind of disputes are referred to arbitration, and according to a view generally accepted in the doctrine, such an arbitration agreement needs to sufficiently identify the legal relationship which is referred to arbitration for resolution. Mere indication that this shall be a legal relationship involving all disputes arising out of the performance of the contract or connected therewith cannot be deemed in this case as sufficient to find that tortuous acts resulting from the Unfair Competition Suppression Act have been covered by the arbitration agreement.

1. The ineffectiveness of an arbitration clause results from events arising after the clause is made which nonetheless do not affect its validity. It must be stressed in this respect that the arbitration clause itself is treated as an act of a dual nature, that is, of both substantive and procedural law. This leads to the conclusion that when making an arbitration clause, the parties can condition its effectiveness, as with any other contract, on the passage of a certain time or fulfilment of a certain suspensory condition. The Convention on the Recognition and Enforcement of [Foreign] Arbitral Awards, in particular Art. II, does not provide for limitations in this respect. On the contrary, Art. II(2) indicates a broad interpretation of the concept of “agreement in writing under which the parties undertake to submit to arbitration all or any differences”, which justifies the conclusion that this wording is not infringed by introduction into the agreement of regulations prior to the arbitration proceeding.

2. The essence of the New York Convention is the requirement for the parties to proceed in accordance with good faith and fair practice, and thus a prohibition against acting contrary to these principles. This interpretation stands in the way of actions disloyal to the other participants and the arbitration court, and deprives of justification objections by a party to the proceeding of the non-existence or invalidity of the arbitration clause in a proceeding for recognition or enforcement of an arbitration award in Poland, even though preclusion of such an objection is not expressly provided for in the regulations of the convention, if the party joined issue on the merits of the dispute before the arbitration court without asserting the court’s lack of jurisdiction.

1. Transfer of the cases heard by the formerly existing Permanent Arbitration Court at the Regional Chamber of Legal Advisers in G. to be heard by the new Permanent Arbitration Court at the Regional Chamber of Legal Advisers in G. remains at the sole discretion of the founding body responsible for the organisation of these two institutions, it does not, however, affect the legal relations of other entities. This follows from the fact that parties to a contractual relationship whose potential disputes have been submitted to a specific arbitration institution cannot be forced by the founding body of this institution to submit the dispute to other authority. Only if both parties to the agreement express their will to make such a change, this will form a new effective arbitration agreement.

2. [M]aking contractual arrangements regarding a specific permanent court of arbitration is bidding for the parties to such an extent that the liquidation of the court renders the arbitration agreement unenforceable.

1. The claim for restitution of unjust enrichment pursued in this case fits within the catalogue of disputes covered by the arbitration clause, as it was stated in the agreement for provision of promotional services that the arbitration clause covers, inter alia, “claims for return of consideration provided without due grounds or not owed, arising in the event of invalidity of the agreement.” Thus if the subject of the agreement was factual activities allegedly constituting a tortious act (charging fees other than a commercial margin), the validity of such agreement should be considered in the light of Civil Code Art. 58 §1 or 2. If however the very conclusion of the agreement for provision of promotional services alongside the agreement of sale allegedly constituted an act of unfair competition, the claim stated in the statement of claim fits within the category of “tort claims, if they arise out of a legal event connected with performance of the agreement of sale or also constituting non-performance or improper performance of the agreement.” The tort claim undoubtedly arises out of a legal event (an act of unfair competition) connected with performance of the agreement of sale.

2. The mere fact of submission of a dispute for resolution by an arbitration court cannot demonstrate the inconsistency of such agreement with principles of social coexistence, because this method of dispute resolution is permissible by law. Moreover, alternative methods of resolving disputes often result in faster resolution of the dispute, which is thus less expensive and more beneficial for parties conducting business activity. Civil Procedure Code Art. 1161 §2 serves to eliminate irregularities in arbitration clauses violating the equality of the parties.

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. 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.

1. The essence of establishment of an “arbitration clause by reference” is that the intention to submit a dispute to an arbitration court for resolution is not stated in the agreement signed by the parties or documents exchanged by the parties, but in a separate document which is not signed by the parties but which the parties only refer to through another document, i.e. the main (basic) agreement. The condition for making an arbitration clause in this manner is fulfilled if the following conditions are all met. First, the main (basic) agreement itself, in connection with which the document containing the arbitration clause is to be applied, must be made in writing. Second, such agreement must contain an express reference to the document in which there is a provision on submission of disputes that may arise out of the agreement to an arbitration court for resolution, where the reference is of a type that makes the clause an integral part of the agreement.

2. From the point of view of the form of an arbitration clause, the solution adopted [in Civil Procedure Code Art. 1163] is a specific form of an “arbitration clause by reference,” where an arbitration clause is set forth only in the articles of association or statute of a company, or the statute of a cooperative or association, and the act or deed of joining the company, cooperative or association includes only submission to the articles of association or statute, including the arbitration clause contained therein. The scope of the binding force of such arbitration clause is limited in terms of entities: It binds the company and its shareholders, or the cooperative or association and its members. Moreover, this regulation expressly provides that the binding force of an arbitration clause contained in the articles of association or statute of a company or the statute of a cooperative or association applies to disputes arising out of the corporate relationship or disputes arising out of the relationship of membership in the cooperative or association.

1. [T]he purpose of proceedings for setting aside of an arbitration award is to examine the prerequisites of rendering of the award, not determine the existence or non-existence of the claim awarded by the arbitral tribunal.

2. An arbitration agreement is an agreement…, therefore, conclusion of an arbitration agreement by an attorney outside of the limits of their authorization results in the so-called suspended ineffectiveness.

3. Curing of an agreement has an ex tunc effect and thus makes the agreement valid from the time of its conclusion. Thus, even if one assumes that the confirmation of the arbitration agreement took place after the arbitration proceedings, such confirmation makes the arbitration agreement effective also at the time of the arbitration proceedings.

4. An arbitration award may be set aside on this basis (on the basis of a possible violation of the fundamental principles of the legal order by the Court of Arbitration – insertion added] when it is determined that the effects 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 Polish legal order. These principles include not only constitutional standards, but also the overriding standards in specific fields of law… . However, a state court examining the case for setting aside of an arbitration award cannot re-examine a dispute on the merits… . So not every violation of substantive law will violate the principle of the rule of law referred to in Art. 1206 § 2 of the PCPC.

5. A state court is not entitled to review whether an arbitral tribunal has properly determined the facts and properly evaluated evidence, because this falls within the limits of the resolution on the merits of the claim.

6. Since… the lawmaker itself has introduced formal restrictions into the system for ascertaining the truth, it is not possible to find that restrictions of this kind contained in the Rules of a court of arbitration and their application in a specific case would be contrary to the fundamental principles of the legal order of the Republic of Poland.

1. A proceeding for recognition and enforcement of foreign rulings is a proceeding on the merits of the case, which is based on substantive law…. The court of appeal could therefore apply the law of the [New York] Convention as the applicable substantive law.

2. Art. II(2) [of the New York Convention] is more liberal, also permitting conclusion of an arbitration clause by electronic means, even without the signatures of the parties. This is also a fundamental provision, determining the permissible form of the agreement, while the requirements connected with submission of the arbitration agreement included in Art. IV( 1) should be considered in light of the form in which the agreement could be concluded. Consequently, Art. IV is derivative in nature and thus cannot undermine the rationale of the rule set forth in Art. II of the Convention.

3. A party which joined issue on the merits of the dispute before the arbitration court without alleging the lack of jurisdiction of such court (e.g. because of the ineffectiveness of the clause) loses such allegation in the proceeding for recognition or enforcement of the arbitration award before the national court. … The essence of the New York Convention is a requirement for the parties to act in accordance with principles of good faith and fair dealing, and hence a prohibition against acting in violation of such principles. Such interpretation frustrates actions disloyal to the other parties and the arbitration court, causing unnecessary costs and a waste of time. There is no concern in this respect that the party’s procedural rights will be limited, because the party decides on the arbitration clause autonomously.

1. A petition to set aside an arbitration award is a legal instrument combining the features of extraordinary means of review, i.e. a petition to reopen the proceedings, and a proceeding to determine a right or legal relationship. The petition is not a means leading to substantive consideration by the state court of the dispute resolved by the arbitration court.

2. Pursuant to §32(3) of the Rules [of the Court of Arbitration at the Polish Chamber of Commerce] signatures are placed on the ruling by the panel and by the President and the Secretary of the Court of Arbitration. This provision does not specify that it must be the Secretary’s personal signature, but only requires signing by the Secretary, and thus as well by his Deputy duly authorized for temporary performance of his duties. Interpreting this provision otherwise would lead to the absurd conclusion that the Court of Arbitration could not issue rulings at all during the temporary absence of the Secretary General due to illness or holiday.

3. It indisputably follows from §32(2) of the Rules [of the Court of Arbitration at the Polish Chamber of Commerce] that the ruling of the arbitration court consists of the resolution (operative wording) and the justification, which constitutes an integral part of the award. Similarly, Art. 1197 §2 of the Civil Procedure Code indicates that an arbitration award must contain the grounds for the resolution. Thus an award without such justification will not be introduced into legal circulation. Since that is the case, the resolution by itself would have no reason for being and for this reason the resolution and the justification should be treated as a formal and substantive whole. … Thus there are no reasons to deem the absence of the signatures of the arbitration panel under the operative wording of the award to mean the non-existence of the ruling and to raise arguments applicable only to the state courts.

4. The requirement to indicate an [arbitration] agreement in writing is also fulfilled when the party presents a certified copy of the document in which the agreement was concluded. A written copy in the form of a certified transcript from the document, i.e. the agreement, indicates that the original of the document constitutes a document referred to in Art. 1162 §1 of the Civil Procedure Code. The form of the [arbitration] agreement indicated by this provision means that the agreement must be made in writing. … Subsequent destruction or other loss of the document as the medium in which the agreement was recorded does not eliminate the relevance of the fact that it was previously made in written form. It should be indicated in this respect that the Parliament did not use the phrase “in written form” here but only “in writing,” which suggests that this may be any confirmation of the agreement made in writing, including a copy of the document containing the agreement, somehow referring to it in its content.

5. The state court considering a petition to set aside an arbitration award does not have the competence for a substantive assessment of the findings made by the arbitration court. This means that the state court cannot make its own findings on classification of an agreement, but can only assess the propriety, logical argumentation and conclusions dawn, and in this context confirm that it does or does not suffer from errors of logical reasoning.

1. Acquisition of a claim does not infringe the effectiveness of agreements concluded between the prior creditor and the debtor. This applies also to an arbitration clause, which is binding on the acquirer of the claim. It is stressed in the case law that the debtor may not be in a worse situation that it would be in an action for damages pursued by the insured as the injured party, and thus the debtor is entitled to any defences it would have against the insured as of the time it became aware of the transfer. ... The defences referred to in Civil Code Art. 513 §1 thus include not only defences under substantive law, such as the statute of limitations or setoff, but also the defence of the existence of an arbitration clause, which, according to the prevailing views presented in the literature on the subject and shared by the panel of judges at the appellate court, is an agreement of substantive law exerting effects only in the sphere of procedural law. The case thus presents the extension of the binding force of an arbitration clause to an entity that was not an original party to the clause.

2. The binding force of an arbitration clause also extends to legal successors, under specific grounds, to the legal relationship that was submitted to arbitration.

3. It is clear that an insurer that assumes a subrogation claim under Civil Code Art. 828 §1 is bound by an arbitration clause.

1. The validity and effectiveness of an arbitration clause, which are issues governed by regulations of substantive law, are determined by the regulations in force as of the time the arbitration clause was concluded.

2. The invalidity or expiration of the main agreement in which an arbitration clause was included does not in itself mean the invalidity or expiration of the arbitration clause.

3. When the defendant files its response to the statement of claim, it must raise the defence of the arbitration clause, because it is through the response to the statement of claim that it joins issue on the merits of the case.

4. Upon filing of a principal intervention by the plaintiffs, ... a new proceeding was commenced, which was pending independently of the trial (Civil Procedure Code Art. 75). In this case, the defendant joined issue only after service upon it of a copy of the statement of claim, upon filing of the response to the statement of claim. Thus, even though incidental proceedings in the case were pending previously—a proceeding for interim relief and a proceeding on submission of a deposit against costs—in which the defendant raised defences on the merits, it should be found that they were connected with the subject matter of those proceedings, and the defendant stated its position with respect to the demand in the statement of claim only in the response to the statement of claim. Only from that time was there a dispute pending between the parties.

5. A general power of attorney is insufficient to conclude an arbitration clause. ... A power of attorney to perform specific types of acts is required for effective agreement on an arbitration clause, even when the arbitration clause is included in a bilateral contract.

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.

1. A claim for unjust enrichment referred to in Art. 18(1)(4) of the Act on Combating Unfair Competition, as a dispute over property rights, rests within the disposition of the parties, and thus may be the subject of a settlement between the parties. Therefore it may also be covered by an arbitration clause.

2. The defendant’s commission of an act of unfair competition, consisting of charging additional fees, was not connected with performance of the contracts, nor was it related to realization of the contracts, but was done only incidentally during realization of the contracts. … The claim pursued by the plaintiff thus is not contractual in nature and is unconnected with the substance of the contracts concluded between the parties, but concerns only the act of unfair competition committed by the defendant.

3. The precise definition of the subject of the [arbitration] clause should adequately identify the legal relationship subject to submission to the arbitration court for consideration. Specifying only that it is to be a legal relationship related to performance of a contract may not be regarded as sufficient, as it allows discretion in assessing the scope of the clause.

Art. 24 [of the Brussels I Regulation (44/2001)] concerns the issue of domestic jurisdiction, but the lack of domestic jurisdiction and the existence of an arbitration clause are two separate procedural barriers. Thus Art. 24 of Regulation 44/2001 does not constitute grounds for preclusion of assertion of the defence of a clause calling for foreign arbitration. The defendants raised the defence of the arbitration clause in the response to the statement of claim, which meets the requirement of Civil Procedure Code Art. 1165 §1.

1. A joint and several debtor is not bound by an arbitration clause concluded by another joint and several debtor.

2. A partner of a registered partnership is not bound by an arbitration clause concluded by the partnership.

3. The acquirer of an enterprise (Civil Code Art. 55⁴) is bound by an arbitration clause concluded by the seller of the enterprise with its creditor prior to sale of the enterprise, covering disputes concerning obligations connected with conduct of the enterprise.

1. Under Civil Procedure Code Art. 1162, the fact that a party to an arbitration clause has the status of a consumer is irrelevant.

2. An arbitration clause is subject to interpretation. Notwithstanding the essentially procedural nature of an arbitration clause, it should be interpreted in accordance with Civil Code Art. 65, applied by analogy, and thus, inter alia, in accordance with the directives requiring consideration of the intent of the parties to the agreement concerning the arbitration clause and its purpose.

3. Violation of the substantive law applicable to assessment of the relationship being resolved may lead to setting aside of an arbitration award only when the effects of the award, as determined by the content of the ruling, are contrary to the fundamental principles of the legal order.

4. The fundamental principles of the legal order of the Republic of Poland … include the constitutional principle of protection of property rights (Polish Constitution Art. 64(2)). By granting protection to one party to an agreement at the cost of the other, by awarding high consideration against the latter in favour of the other contracting party despite a clear lack of grounds therefor, the arbitration court violated this constitutional principle.

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 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.

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.

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.

1. Arbitrability of a dispute depends on its capacity for settlement, in both property and non-property cases, as is clearly provided by Civil Procedure Code Art. 1157.

2. Arbitrability is derived from settlement capacity. Thus it must first be considered whether a judicial settlement is permissible in the case. More precisely, this means the hypothetical possibility of ending the dispute in this manner, and thus a determination of whether the law permits conclusion of a settlement in cases of this category.

3. There are a number of arguments undermining ... the close connection between the subject of a trial and the ability to conclude a judicial settlement. First, a trial is conducted in the interest of the plaintiff, and pursuant to the principle of party initiative [dyspozycyjność] it generally lies within the plaintiff’s discretion to commence or continue prosecuting the action. Thus if the plaintiff concludes that the concessions made by the adversary are satisfactory, and enters into a settlement, the proceeding becomes moot. In such case a settlement has the same effect as withdrawal of the claim upon consent of the defendant. … Second, ... a settlement by definition addresses the legal relationship existing between the parties, and thus always extends beyond the specific claim by one of the parties. Thus it cannot be said that the overall regulation of the given legal relationship as a whole would be detached from the subject of the dispute (determination of the invalidity of the agreement), which is after all an element of this relationship. ... Third, it is accepted that a substantive legal settlement may cover a dispute over the existence of a legal relationship, as well as a legal relationship that in reality does not exist between the parties. ... In consequence, ... a judicial settlement would be permissible that would eliminate the existing dispute, addressing the mutual legal relationship of the parties regardless of whether the agreement were valid or invalid. Therefore, submission of a dispute seeking a declaration of the invalidity of the agreement to arbitration would also be possible.

4. If the arbitration court may determine the validity of an agreement in a proceeding seeking performance, it cannot be accepted that it is not authorized to do so in a proceeding seeking only a declaration of this fact. The competence of the arbitration court in this respect is confirmed by Civil Procedure Code Art. 1180 §1, which, in providing the arbitration court the right to rule on its own jurisdiction, provides that ... invalidity or expiration of the underlying agreement in which the arbitration clause is set forth does not in and of itself mean the invalidity or expiration of the clause. As it is authorized to determine whether, contrary to this presumption, the invalidity of the underlying agreement does render the arbitration clause invalid, the arbitration court may thus review the very issue of the validity of the underlying agreement. It thus follows from these considerations that a finding that disputes involving a declaration of the validity of an agreement are not arbitrable would be inconsistent with the systemic regulation of the institution of arbitration.

5. A finding of the invalidity of an agreement does not present any particular significance with respect to other claims arising out of the relations in force between the parties. Thus there is no reason that this category of cases would be reserved exclusively to the common courts. ... The legislative intent in reforming the arbitration procedure in 2005 was to give the parties the greatest latitude to submit a dispute to arbitration. Exceptions in this respect, particularly concerning property cases, should thus be expressly stated in the act (which follows from the beginning of Civil Procedure Code Art. 1157) or capable of justification based on important grounds. Doubts in this respect should be resolved in favour of arbitration of the dispute. There is no specific regulation excluding disputes of this type [for a declaration of the invalidity of an agreement] from the jurisdiction of the arbitration court, nor are there grounds for stating that the possibility of resolution thereof by an arbitration court would be unacceptable in the Polish legal order. It should finally be pointed out that a sort of “dismembering” of disputes arising out of a given legal relationship from the point of view of their arbitrability would give rise to significant practical complications. This would not only lead to a multiplicity of proceedings, but would also raise the question of the temporal and objective relationship between a state court judgment on declaration of the invalidity of an agreement and an arbitration award in a case involving performance of the agreement, in light of Civil Procedure Code Art. 1206 §1(6).

1. It is accepted that an arbitration clause passes to legal successors under a general succession (the heirs of a party to the agreement) or legal successors under a specific succession (as a result of assignment of a claim). This position is unobjectionable under the assumption that an arbitration clause is a contractual agreement. Only in that case may there be said to be a claim (the subject of the assignment under Civil Code Art. 509 §1). The Appellate Court classifies the arbitration clause in precisely this way.

2. Conclusion of a sale agreement does not automatically mean conclusion also of an arbitration agreement. ... Exercise of a pre-emptive right results in conclusion of an agreement on sale of the item covered by the right. This effect does not apply to agreements concluded between the obligor and a third party, even when the agreements are closely related to the sale agreement....

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.

Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that a national court or tribunal hearing an action for enforcement of an arbitration award which has become final and was made in the absence of the consumer is required, where it has available to it the legal and factual elements necessary for that task, to assess of its own motion whether an arbitration clause in a contract concluded between a seller or supplier and a consumer is unfair, in so far as, under national rules of procedure, it can carry out such an assessment in similar actions of a domestic nature. If that is the case, it is for that court or tribunal to establish all the consequences thereby arising under national law, in order to ensure that the consumer is not bound by that clause.

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.

1. Submission to an arbitral tribunal of disputes arising out of a contractual relationship means that the jurisdiction of the tribunal extends to any and all claims for performance of the contract, claims arising in the event of non-performance or improper performance of the contract, claims for unjust enrichment in the event of the invalidity or repudiation of the contract, as well as tort claims arising out of an event that also constitutes breach of contract.

2. The court cannot uphold the existence of an arbitration agreement on its own initiative, but only as a defence asserted before joining issue on the merits of the case. Joining issue on the merits of the case occurs when the defendant disputes the justice of the plaintiff’s demands by asserting that it does not acknowledge the claim or applies for denial of the claim.

3. Pursuant to Civil Procedure Code Art. 1165 §2, the defence of an arbitration clause will be denied if the state court finds that the clause is invalid, ineffective, unenforceable or no longer in force, or if the arbitral tribunal has already ruled that it lacks jurisdiction. The clause is invalid if it violates mandatorily applicable provisions of the law governing the clause; ineffective, if it ceases to exert the intended effects in consequence of events arising after it is made but these are not events that cause the clause to cease to be in force. An arbitration clause may be said to be unenforceable when it is not possible to commence a proceeding before the arbitral tribunal. The statement of claim also cannot be dismissed as a result of assertion of the defence of an arbitration clause if the arbitral tribunal has previously ruled that it lacks jurisdiction.

4. It is irrelevant for whether the parties are bound by an arbitration clause that the wording of the parties’ contractual arbitration clause is identical to the wording of the arbitration clause drafted by a permanent arbitration court. The validity of an arbitration clause examined by the state court depends on fulfilment of the conditions set forth in the Civil Procedure Code.

With respect to cases arising out a corporate relationship, the dominant view is that a settlement is not permissible in cases seeking a declaration of the invalidity of a resolution of the shareholders’ meeting of a limited-liability company or joint-stock company, and likewise in cases seeking to set aside a shareholders’ resolution. ... This is tied to the specific subject matter of the proceeding in such cases, but also to the legal consequences of a judgment granting the claim (see Commercial Companies Code Art. 254 §1 and 427 §1). Some views are expressed in the literature finding arbitrability in Civil Procedure Code Art. 1163 §1, under which an arbitration clause in the articles of association (or statute) of a commercial company concerning disputes arising out of the corporate relationship is binding on the company and its shareholders. This provision governs a different subject matter, however: it establishes the form and the limits of the entities bound by arbitration clauses arising out of the corporate relationship, but without modifying the general conditions for the permissibility [of arbitration]. Civil Procedure Code Art. 1163 §1 thus may not be regarded as a specific regulation in relation to Civil Procedure Code Art. 1157.

1. It is permissible for the defendant to withdraw the defence of an arbitration clause during the course of an interlocutory appeal proceeding initiated by appeal from an order of the court of first instance ruling on the justification for this defence.

2. In the case of withdrawal of the defence of an arbitration clause, the Civil Procedure Code does not provide for review by the court in the same manner as occurs in the case of withdrawal of a petition (Civil Procedure Code Art. 203 §4). The defendant’s procedural measure of withdrawing the defence of an arbitration clause is thus subject to assessment by the court just like any other procedural measure taken by a party during the course of a proceeding.

3. The defendant’s withdrawal of the defence of an arbitration clause may occur only until such time as the defence has given rise to the legal effect which it entails under the law. Such effect consists of the court’s dismissal of the petition, if the defence is upheld, or refusal to dismiss the petition if the court finds that the defence is unjustified or asserted too late. The criterion in such respect is the time at which the order dismissing or refusing to dismiss the petition becomes legally final, and not the time of issuance of the order.

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. The existence of the “arbitration court” as an institution is an expression of the state’s relinquishment of its sovereign authority—in this instance, its judicial authority. Thus the legislature (the state) provides the parties to certain legal relationships the option of pursuing disputes arising out of such relationships outside of the common (state) court. Whether to submit their disputes to an arbitration court for resolution is left to the decision of the parties, by making a relevant clause giving the arbitration court jurisdiction. It should be pointed out that the state does not definitively relinquish its judicial authority in its entirety, but provides in relevant procedural regulations that despite the existence of a valid arbitration clause, a party to a dispute may nonetheless file a statement of claim (or motion) with the common court, which will consider the dispute on the merits if no objection is made by the opposing litigant (within the applicable time – Civil Procedure Code Art. 1165 §1).

2. The legislature provided for a kind of “review” of arbitration awards, via the institution of the petition to set aside an arbitration award (Civil Procedure Code Art. 1205) and the institution of recognition and enforcement of an arbitration award (or settlement concluded before an arbitration court) – Civil Procedure Code Art. 1212 ff. Thus the court of first instance had no need to conduct an interpretation of the arbitration clause in terms of its compliance with the Polish Constitution. The court does, however, have an obligation to determine whether a given dispute arises out of a legal relationship that is covered by the arbitration clause—but only upon assertion of the defence by the opposing litigant prior to joining issue on the merits of the case.

1. The provisions of the agreement do not contain an arbitration clause because they do not provide a dispute resolution function for the arbitration court. The essence of the institution of the arbitration clause is the limitation of the role of the state courts in resolving disputes arising out of the legal relationship identified by the parties. Such limitation consists of submission of the arbitration award to review by the state court through the institution of the petition to set aside the arbitration award under the grounds set forth exhaustively in the code.

2. The essence of the institution of the arbitration clause is submission of a dispute for resolution by the arbitration court. If the agreement does not provide a dispute resolution function for the arbitration court, such a clause does not constitute an arbitration clause.

1. Exclusion of a case from consideration and determination by the state courts because of an arbitration clause is not the same as non-justiciability, and a defence of submission to arbitration is not a defence of non-justiciability. ... The defence that the dispute is subject to an arbitration clause is a separate basis for dismissal of a petition, governed by Civil Procedure Code Art. 1165 §1, apart from non-justiciability (Art. 199 §1(1)).

2. Consideration of a case by the state court despite the existence of an arbitration clause does not ... render the proceeding invalid. If a state court conducts a proceeding in a case subject to an arbitration clause, completes the proceeding and issues a judgment, despite assertion of a valid, effective, enforceable defence of an arbitration clause (Civil Procedure Code Art. 1165 §1), the appellate court, upholding the defence in the appellate proceeding under Art. 386 §3, shall vacate the judgment appealed from and dismiss the petition.

3. An interlocutory appeal lies from an order refusing to dismiss a petition ([Civil Procedure Code] Art. 394 §1(1)). According to the Supreme Court, this excludes the possibility of the defendant’s relying on the defence of an arbitration clause pursuant to Civil Procedure Code Art. 380, which refers only to orders by the court of first instance that are not subject to interlocutory appeal. If the courts of both instances held the defence of an arbitration clause to be ungrounded, the determination of this issue is final, and neither the court on its own motion, or the defendant by way of allegation, may return to this issue during the further course of the proceeding.

1. Under Bankruptcy & Reorganization Law Art. 142 and 147, an arbitration clause made by the debtor loses force upon declaration of bankruptcy, and pending proceedings are subject to discontinuance. This applies both to declaration of bankruptcy with the possibility of concluding an arrangement, as well a declaration of bankruptcy involving liquidation of the debtor’s assets. The reasoning behind this provision was that achieving the purposes of a bankruptcy proceeding requires that a dispute to which the debtor is a party be resolved strictly in accordance with the letter of the substantive law and in compliance with all conditions of the law of civil procedure.

2. Loss of force of an arbitration clause means that if suit is filed before a state court after declaration of bankruptcy, the defendant cannot effectively allege the arbitration clause as a defence.

It is incompatible with Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters for a court of a Member State to make an order to restrain a person from commencing or continuing proceedings before the courts of another Member State on the ground that such proceedings would be contrary to an arbitration agreement.

If, because of the subject-matter of the dispute, that is, the nature of the rights to be protected in proceedings, such as a claim for damages, those proceedings come within the scope of Regulation No 44/2001, a preliminary issue concerning the applicability of an arbitration agreement, including in particular its validity, also comes within its scope of application.

It follows that the objection of lack of jurisdiction raised on the basis of the existence of an arbitration agreement, including the question of the validity of that agreement, comes within the scope of Regulation No 44/2001 and that it is therefore exclusively for the court to rule on that objection and on its own jurisdiction, pursuant to Articles 1(2)(d) and 5(3) of that regulation.

Accordingly, the use of an anti-suit injunction to prevent a court of a Member State, which normally has jurisdiction to resolve a dispute under Article 5(3) of Regulation No 44/2001, from ruling, in accordance with Article 1(2)(d) of that regulation, on the very applicability of the regulation to the dispute brought before it necessarily amounts to stripping that court of the power to rule on its own jurisdiction under that regulation.

It follows, first, that an anti-suit injunction is contrary to the general principle that every court seised itself determines, under the rules applicable to it, whether it has jurisdiction to resolve the dispute before it. It should be borne in mind in that regard that Regulation No 44/2001, apart from a few limited exceptions, does not authorise the jurisdiction of a court of a Member State to be reviewed by a court in another Member State.

Secondly, in obstructing the court of another Member State in the exercise of the powers conferred on it by Regulation No 44/2001, namely to decide, on the basis of the rules defining the material scope of that regulation, including Article 1(2)(d) thereof, whether that regulation is applicable, such an anti-suit injunction also runs counter to the trust which the Member States accord to one another’s legal systems and judicial institutions and on which the system of jurisdiction under Regulation No 44/2001 is based.

Lastly, if, by means of an anti-suit injunction, the national court were prevented from examining itself the preliminary issue of the validity or the applicability of the arbitration agreement, a party could avoid the proceedings merely by relying on that agreement and the applicant, which considers that the agreement is void, inoperative or incapable of being performed, would thus be barred from access to the court before which it brought proceedings under Article 5(3) of Regulation No 44/2001 and would therefore be deprived of a form of judicial protection to which it is entitled.

This finding is supported by Article II(3) of The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, signed in New York on 10 June 1958, according to which it is the court of a Contracting State, when seised of an action in a matter in respect of which the parties have made an arbitration agreement, that will, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.

Submission to an arbitration court of disputes under a contractual relationship means that the jurisdiction of the arbitration court extends to any and all claims for performance of the contract, claims arising in the event of non-performance or improper performance of the contract, claims to restore undue consideration arising in the event of invalidity of the contract or rescission of the contract, as well as tort claims if they arise out of an event that also constitutes non-performance or improper performance of the contract.

1. The provisions of the Civil Procedure Code governing arbitration are not all of the same nature, but are divided into two main groups. One set of provisions governs issues related to the permissibility of a petition [to set aside an award], the formal requirements for the petition and the course of the proceeding, and thus are strictly procedural provisions. The other set of provisions includes those specifying the grounds of a petition to set aside an arbitration award, functionally analogous to provisions of substantive law and setting forth the grounds for the substantive determination by the court on the merits of the dispute and the justification for the petition. The differentiation among provisions of the Civil Procedure Code concerning a petition to set aside an arbitration award is reflected by the fact that in the event of filing of a cassation appeal in such a case, allegations of violation by the court of provisions of the Civil Procedure Code governing the permissibility of a petition and the course of the proceeding on the petition should be asserted as part of the second basis for a cassation appeal, that is, violation of procedural regulations, while allegations with respect to the grounds of the petition should be asserted as part of the first basis for a cassation appeal, that is, violation of substantive law.

2. The provisions of the Civil Procedure Code governing the grounds for a petition to set aside an arbitration award should thus be treated as analogous to provisions of substantive law, which is also essential for interpretation of interim provisions. From the point of view of principles for interim law, provisions governing the grounds for a petition to set aside an arbitration award should be treated analogously to provisions of substantive law, and are thus subject to the interim rules for substantive law and not procedural law.

3. The literal wording of Art. 2 of the amending act should be understood to mean that the regulation refers only to provisions concerning arbitration that are strictly procedural in nature, and thus concern the proceeding in a case upon a petition [to set aside an arbitration award]. It does not include provisions specifying the grounds for the petition, which should be governed by interim rules for provisions of substantive law.

4. Where an arbitration award was issued under the prior regulations of the Civil Procedure Code, but the case seeking to set aside the award was commenced under a petition filed after entry into force of the amending act, under Art. 2 of the amending act the new provisions should apply to the proceeding pursuant to the petition with respect to permissibility of the petition and the course of the proceeding, but the grounds for the petition to set aside the arbitration award should be determined and assessed in accordance with the former provisions in force prior to 17 October 2005.

5. In a case pursuant to a petition to set aside an arbitration award issued prior to the effective date of the Act of 28 July 2005 Amending the Civil Procedure Code (Journal of Laws Dz.U. No. 178 item 1478), commenced after the effective date of the act, the prior regulations of the Civil Procedure Code apply to an allegation of lack or invalidity of an arbitration clause stated as the grounds for the petition. The petitioner may assert such grounds for the petition even if it did not raise such objection in the proceeding before the arbitration court.

6. The rule set forth in Civil Procedure Code Art. 712 §2 clearly demonstrates that the legislative intent was to limit preclusion to an objection of exceeding the scope of an arbitration clause, and the intent was not to introduce such preclusion for an objection of lack of an arbitration clause.

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. An effective arbitration clause requires that the arbitration court be entrusted with the function of resolving disputes.

2. Under Civil Procedure Code Art. 1161 §§ 1 and 3, the parties may submit a dispute for resolution by a permanent arbitration court or an arbitration court appointed ad hoc. The clause must be made in writing (Civil Procedure Code Art. 1162). In the event of indication of a permanent arbitration court, under Civil Procedure Code Art. 1161 §3 the clause must indicate the court, which should be regarded as an essential element of such agreement. Indication of a permanent arbitration court should be precise enough in order to identify the permanent arbitration court; that is, it should state at least the seat of the permanent arbitration court, as well as its name if there is more than arbitration court operating in the given city.

3. Contractual provisions submitting specific disputes to an arbitration court for resolution must be interpreted narrowly, as such agreement constitutes in certain respects a restriction on the right of judicial recourse guaranteed by Art. 45(1) of the Polish Constitution, cited in the cassation appeal. The bounds within which the parties have limited the right to judicial protection of their rights should thus be interpreted narrowly.

1. The provisions of the rules of the arbitration court cannot be relevant for determining whether the parties made an arbitration clause in accordance with the rules set forth in the Civil Procedure Code. ... In assessing the validity of an arbitration agreement as a legal act, the common court considers the circumstances resulting in invalidity of legal acts according to the regulations in force, that is, whether actions were taken without complying with requirements as to form provided for by statute or by the parties under pain of invalidity, and whether the substance of the action is contrary to or intended to circumvent a statute, or contrary to principles of social coexistence, and whether there were defects in the declarations of will.

2. A thorough analysis of the substantive justification of the determination by an arbitration court exceeds the bounds of a proceeding commenced upon a petition referred to in Civil Procedure Code Art. 1205 ff. ... The view is stated in the case law that determinations by an arbitration court are binding, and the common court has no right to conduct substantive review of a case concluded in a ruling of an arbitration court, apart from exceptions provided by statute.

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 may be regarded as settled law that making an arbitration agreement is an action outside the ordinary course of business..., and thus as a rule it does not lie within the authority granted under a general power of attorney as provided in Civil Code Art. 98.

2. Civil Procedure Code Art. 199 §1(2) requires that a petition be dismissed if a case involving the same claim between the same parties is pending or has already been adjudicated with finality. It is clear that this provision applies as relevant to a proceeding to set aside an arbitration award under Civil Procedure Code Art. 1207 §2 (formerly Art. 715). However, in order for Civil Procedure Code Art. 199 §1(2) to be applicable, the subject of both cases must be the same claim (in the sense of the relief sought), which occurs only when both the subject and the legal basis of the dispute are identical. ... There is no such identity between a demand for the court to appoint an arbitrator under Civil Procedure Code Art. 701 (prior to repeal of that provision) and a petition to set aside an arbitration award. The subject and legal basis of the two matters are entirely different. While in both instances a ground for the ruling may be the issue under assessment of the effectiveness of the arbitration clause, but the identity in the subject matter of the cases is not determined by the similar or even identical scope of the factual circumstances being considered, but by the claims for relief drawn from such facts by the parties.

1. It is accepted in the literature and in the precedent that res judicata effect, governed by Civil Procedure Code Art. 366, is ascribed only to rulings on the merits. … An order dismissing a petition to set aside an arbitration award, which does not belong to the category of listed merits determinations, does not enjoy res judicata effect and cannot justify an allegation of the invalidity of the proceeding based on Civil Procedure Code Art. 379(3).

2. Given that the petition to set aside the arbitration award was not based on Civil Procedure Code Art. 712 §1(1), it was impermissible for the court to consider sua sponte the issue of the invalidity of the arbitration clause.

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. If a proceeding in which Civil Procedure Code Art. 1162 §2 may be applicable was commenced after entry into force of the amending act, then under Art. 2 [of the Act dated 28 July 2005 Amending the Civil Procedure Code] it is permissible to apply it, and the complex nature of an arbitration clause, combining properties of a substantive and a procedural legal agreement, does not prevent application of the interim regulation set forth in the code. Art. 2, being later and specific, excludes Art. XV §2 of the Regulations Introducing the Civil Procedure Code and the prohibition on retroactive application of the law set forth in Art. XXVI of the Regulations Introducing the Civil Code (Act dated 23 April 1964, Journal of Laws Dz.U. No. 16 item 94, as amended).

2. The constitutional order of priority of legal acts (Polish Constitution Art. 91(1)) requires an assessment of requirements as to form first and foremost under the New York Convention, which sets forth in Art. II (1) and (2) the requirement of written form, understood broadly to include an exchange of letters or telegrams.

3. An arbitration agreement that is dependent on an election left up to the professional, the defendant company, without indicating the rules on which the decisions of the American Arbitration Association are based, imposing on the customer foreign law that differs substantially from European law, additional difficulties in enforcing claims because of the different system of law, distance and costs, and the commonly known difficulties in obtaining a visitor’s visa to the United States, creates a situation that must be regarded as an impermissible clause for purposes of Directive 93/13 (EEC). The arbitration clause imposed on the plaintiff constitutes an impermissible contract clause which results in a situation inconsistent with Art. 6(2) of the directive and justifies renunciation of the obligation to submit the case to arbitration.

4. An interpretation of [New York Convention] Art. II (1) and (2) does not allow for the conclusion that conclusion of an agreement in an implicit manner meets the requirement for ordinary written form, without departing from the sense of the rule. Nor is there any reason for finding that acceptance of content on a website is in written form, particularly since the convention is silent on specific issues, i.e. concerning the time, place and manner of acceptance of a form available on the Internet.

5. According to [Civil Procedure Code Art. 1162 §2], the form of an arbitration clause is fulfilled also when the clause is included in correspondence or statements submitted using telecommunications in a manner that enables the content to be fixed, or a written agreement incorporating a separate document containing a provision on submission of a dispute to resolution by an arbitration court. Entering a webpage containing a form of agreement addressed to an indefinite set of readers, and online confirmation of one’s intent to conclude an agreement, does not constitute a declaration enabling the content to be fixed. In particular, a factual computer action of “confirmation,” unlike a typical electronic signature of basic, i.e. lower reliability, does not provide a basis for identifying or reconstructing the content of the declaration. This requirement would be fulfilled, however, by a declaration transmitted by e-mail enabling identification of the sender.

An arbitration agreement is a separate agreement supplemental to the main agreement (in this case a construction contract). The arbitration agreement, even if it is set forth in a clause within the main agreement, is not a provision of such agreement (the underlying contract), and thus its effectiveness is considered separately.

Council Directive 93/13 on unfair terms in consumer contracts must be interpreted as meaning that a national court seised of an action for annulment of an arbitration award must determine whether the arbitration agreement is void and annul that award where that agreement contains an unfair term, even though the consumer has not pleaded that invalidity in the course of the arbitration proceedings, but only in that of the action for annulment.

1. The formal requirements for an arbitration clause include maintaining the form of a written agreement with signatures of both parties. Such an agreement must also contain a precise indication of the subject of the dispute or the legal relationship out of which the dispute arose or could arise. ... The code does not include in these requirements indication of the specific arbitration court to whose jurisdiction the parties intend to submit a specific dispute. Optionally, arbitrators and a presiding arbitrator could be indicated in the arbitration clause, or the number of arbitrators and the method for appointing them and the presiding arbitrator (the last part of Civil Procedure Code Art. 698 §2 in the wording prior to the amendment). It would also be possible to specify in the arbitration clause the procedure before such court. These are not essential requirements, however, but only optional.

2. Indication of the “geographically nearest Arbitration Court” justifies a finding that the intention of the parties was to refer to a permanent arbitration court. In that event—in a situation in which the there are several permanent arbitration courts operating in the place where the parties concluded the agreement and where they have their registered office—the arbitration clause must, however, contain an indication of which court is intended. Otherwise, either of the parties could dispute the jurisdiction of any of the arbitration courts with which a claim is filed.

3. An arbitration clause in which the parties specify in advance the stage of the proceeding through which the arbitration court is authorized to hear the case (here, until conclusion of a settlement or a determination that no agreement will be reached) is ineffective.

4. The inability to identify the permanent arbitration court which the clause in the agreement was intended to refer to makes it impossible to perform.

1. Civil Procedure Code Art. 698 §§ 1 and 2 may not be interpreted expansively.

2. If the agreement does not provide for the arbitration court the function of dispute resolution, this type of clause is not an arbitration clause.

3. An arbitration clause may be subject to canons of interpretation in accordance with the principles set forth in Civil Code Art. 65.

1. Mere assertion of the defence of the existence of an arbitration clause is not grounds in any event for dismissal of a statement of claim. In order to have that effect, the defence must be justified, which is subject to the assessment of the court.

2. The task of the court is to clarify whether the resolution of the case rests with the arbitration court, which also includes assessment of the validity of the arbitration clause.

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. Assertion by the defendant in the defences against an order for payment of defences concerning the contractual relationship whose performance was secured by issuance of a guarantee promissory note (the underlying relationship) means that a case based on a relationship under the Promissory Note Law ... was shifted to the general ground of civil law....

2. Shifting the case to the general ground of civil law, making it necessary to resolve the justification of the plaintiff’s claim arising under the leasing agreement in force between the parties, means that in resolving this, the clause submitting disputes that may arise out of such agreement to resolution by an arbitration court cannot be ignored. Therefore, the defendant’s assertion of the defence of an arbitration clause in the defences against the order for payment is effective and results in setting aside the order for payment and dismissal of the statement of claim (Civil Procedure Code Art. 202, 493 §1, 199 §1(4) and 496).

1. Regardless of how an arbitration clause is classified (as a substantive legal act, a procedural act, an act of a mixed nature, or a sui generis agreement), in any case, within the scope not regulated by Civil Procedure Code Art. 697 and 698, the Civil Code may be applied (directly or secondarily). The provisions of the Civil Code concerning agency (Civil Code Art. 95–109) thus apply to a power of attorney authorizing the holder to make an arbitration clause.

2. A general power of attorney was sufficient for the president of the State Treasury Agricultural Property Agency to authorize the director of a field office of the agency to make an arbitration clause.

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.

1. The proper interpretation of Civil Code Art. 123 §1(1) leads ... to the conclusion that only the appointment of a court of other body to consider a case or enforce claims of a given type must be expressly provided for by statute. This requirement, for obvious reasons, does not apply to an arbitration court, because the direct source of its appointment, as provided by the Parliament (Civil Procedure Code Art. 698 §1), is the intent of the parties expressed in the agreement they have concluded to submit the dispute to the jurisdiction of an arbitration court, in the form of an arbitration clause.

2. Because it is undisputed that in another, previously commenced case pursuant to a petition to set aside the award of the arbitration court, it was adjudicated with legal finality that the parties to this proceeding did not make an effective arbitration clause, it cannot correctly be found that the plaintiff’s filing of a statement of claim before the Permanent Court of Arbitration at the Wielkopolska Chamber of Industry and Commerce in Poznań could be treated as an action by the plaintiff before an arbitration court for purposes of Civil Code Art. 123 §1(1).

1. An agreement to submit a dispute to an arbitration court for resolution is a form of evidence because it demonstrates that the parties are subject to an arbitration clause under which an arbitration award was issued, and one of the conditions for enforcement of a foreign arbitration award is for the movant to demonstrate that the parties were bound by such an agreement.

2. If a specific provision imposes on a given person an obligation to present documents as evidence, there is no justification for applying Civil Procedure Code Art. 248. For this reason, Art. 248 does not apply in a proceeding for enforcement of a foreign arbitration award insofar as Art. IV(1)(b) of the [New York] Convention, as a specific regulation, imposes on the movant the obligation to present the original or a certified copy of the agreement to submit the dispute to the arbitration court for resolution. In a proceeding for recognition or enforcement of an arbitration award conducted under the Convention, the arbitration agreement thus constitutes a condition for granting the motion.

An arbitration clause is an act outside the ordinary course of business.

1. Conclusion of an agreement on an arbitration clause should be treated as an act outside the ordinary course of business of the principal. As a result, a general power of attorney referring only to acts within the ordinary course of business is insufficient (Civil Code Art. 98, first sentence).

2. An [arbitration] clause included in an underlying agreement (e.g. a tenancy agreement) is not one of the provisions of the underlying agreement, but its content and legal effectiveness must be considered separately (autonomously). This means that effective conclusion of the underlying agreement and the agreement on the arbitration clause would require issuance of different forms of power of attorney. While a general power of attorney may be sufficient for conclusion of a tenancy agreement (Civil Code Art. 98, first sentence), with respect to the arbitration clause at least a power of attorney to enter into specific types of acts [pełnomocnictwo rodzajowe] would be required (Civil Code Art. 98, second sentence).

1. An agreement on establishment of a limited-liability company may contain an arbitration clause (Civil Procedure Code Art. 697) or a jurisdiction agreement (Civil Procedure Code Art. 1105), covering both the founders of the company and the company established by them. If the parties to a foreign arbitration agreement (Civil Procedure Code Art. 1105 §2) are parties with their residence or registered office abroad or operating an enterprise abroad (foreign entities) and parties that are domestic entities, the agreement is also effective between the latter, and it may happen that an arbitration court operating abroad may be proper to hear a dispute between them.

2. Under Civil Procedure Code Art. 698 §2, the subject of the dispute or the legal relationship out of which the dispute has arisen or may arise must be precisely identified in the arbitration clause. It follows from this provision that it is not permissible to submit for resolution by an arbitration court all disputes that may arise in the future in general, without specifying the legal relationship.

3. The provision ... of the articles of association of the company establishing the “exclusive jurisdiction” of the arbitration court does not identify such court more specifically or even indicate the country in which it is to act. This fact in itself is sufficient to invalidate the foreign arbitration agreement included therein.

4. While it is true that the consequence of effective assertion of either the defence of an arbitration clause or the defence of a foreign arbitration agreement is dismissal of the statement of claim, in the first instance the grounds for dismissal is that the resolution of the case rests with the arbitration court (Civil Procedure Code Art. 199(4)), and in the second, lack of domestic jurisdiction (Civil Procedure Code Art. 1099), as a foreign arbitration agreement excludes such jurisdiction (Civil Procedure Code Art. 1105 §2).

1. The condition for the effectiveness of an arbitration clause under [Civil Procedure Code Art. 1105 §2] of the “foreign status” of at least one of the parties refers to the stage of conclusion of the forum selection agreement, and thus has to do with the parties to that agreement and not the parties to the dispute covered by the arbitration clause. The purpose of the forum selection clause is to submit future property disputes to an arbitration court (Civil Procedure Code Art. 697 in connection with Art. 1105 §2), and thus the effectiveness of the clause referring to an arbitration court operating abroad is determined by the forum selection agreement establishing such clause, so long as the limiting conditions listed in Civil Procedure Code Art. 1105 §2 are met at the time of conclusion of the agreement.

2. The necessity to examine the legal force and effectiveness of an arbitration clause, but according to the state of facts as of the date of conclusion of the forum selection agreement, may lead to a situation in which a foreign arbitration court will be proper to decide the dispute even though as of the date of commencement of the dispute the parties to the dispute no longer meet any of the characteristics of “foreignness” listed in Civil Procedure Code Art. 1105 §2, i.e. having a registered office abroad or operating an enterprise abroad which is connected with the dispute....

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.

1. The bar to justiciability in the form of the existence of an arbitration clause is relative in nature, as the court will consider it only if raised by the defendant, and the defence is asserted and justified prior to joining issue on the merits. The court is not authorized to consider it upon the court’s own motion. In consequence, under Civil Procedure Code Art. 379, consideration of the case by the state court despite the existence of an arbitration clause does not invalidate the proceeding.

2. The relative nature of this defence is also evident in that it may be considered and decided only at the preliminary phase of the proceeding (“before joining issue on the merits”). The defendant thus definitively loses the opportunity to assert such defence in the further course of the proceeding. Such procedural preclusion extends also to a situation in which the defence was not asserted in time, or when despite assertion of the defence it was denied by the court. Under Civil Procedure Code Art. 394 §(1), there is a right of interlocutory appeal from refusal to dismiss the statement of claim. This excludes the possibility of the defendant’s asserting the defence of the existence of the arbitration clause under the procedure of Civil Procedure Code Art. 380.

1. A submission to arbitration is an agreement to submit a dispute to an arbitration court for resolution (Civil Procedure Code Art. 698 §1), whose most far-reaching consequence is exclusion of the matter from the jurisdiction of the state court (Civil Procedure Code Art. 697 §2). The agreement may concern either a dispute that has already arisen (when it is then referred to as a “compromise”) or disputes that may arise in the future out of a designated legal relationship (in which case it then called an “arbitration clause,” because as a rule it is included in the “main” agreement).

2. The validity of an arbitration clause should be assessed autonomously. A submission to arbitration, even when set forth in the form of a clause in the “main” contract, is not a provision of the bilateral contract, and thus its effectiveness is considered independently. This issue is treated similarly to an agreement on jurisdiction, which is regarded as autonomous regardless of whether it was included in the text of the “main” agreement itself.

3. The assessment of the existence of an attorney's authority to enter into an arbitration agreement should be made separately from the assessment of the existence of the attorney's authority to make the legal act that is the source of the legal relationship which (or, more precisely, disputes arising out of which) is to be submitted to the jurisdiction of the arbitration court. Consequently, assessment of the effectiveness of the power of attorney to enter into the arbitration clause is independent of the assessment of the effectiveness of the power of attorney to enter into the “main” agreement, and a finding that the attorney was duly authorized to conclude the main agreement will not be conclusive on the determination of whether the attorney was also duly authorized by the principal to submit disputes arising out of the agreement to the jurisdiction of the arbitration court, and thus to exclude such disputes definitively from the jurisdiction of the state court.

4. A submission to arbitration is an act exerting direct effect on realization of the legal protection to which a party is entitled. The importance of such submission and its procedural effects are thus serious enough that making a submission to arbitration should be regarded as an act outside the ordinary course of business. The submission has effects under procedural law, shaping the litigation posture of the party bound by the submission. The effect of a submission to arbitration on the manner in which legal protection is pursued is essentially always the same, as it always results in eliminating the jurisdiction of the state court. These characteristics of a submission to arbitration, considering its autonomous nature, justify the holding that a submission to arbitration is an act outside the ordinary course of business. This classification is favourable from the point of view of certainty of legal transactions and clarity of the criteria applied when assessing the effectiveness of powers of attorney.

A general power of attorney is sufficient to authorize the director of a field office of the Agricultural Property Agency to enter into an arbitration clause.

1. There is no doubt that a party may conclude an agreement to submit a dispute to an arbitration court for resolution (an arbitration clause) not only in person, but may also do so through an attorney.

2. In any event, insofar as not governed by Civil Procedure Code Art. 697 and 698, an arbitration clause may be governed by the Civil Code (directly or possibly secondarily). The Civil Code regulations concerning representation (Art. 95–109) are thus applicable to a power of attorney, including authorization to enter into an arbitration clause.

3. Civil Code Art. 98 does not determine whether entering into an arbitration clause is an act outside the ordinary course of business. Only a finding that entering into an arbitration clause is an act outside the ordinary course of business would justify a finding that a general power of attorney is insufficient to authorize such an act. Because the law does not require a power of attorney to enter into an individually identified arbitration clause (a specific power of attorney), a power of attorney including authority to enter into arbitration clauses (a generic power of attorney) would suffice.

1. The essence of an arbitration clause is submission of a dispute for resolution by the arbitration court. If the agreement does not provide the arbitration court with a dispute-resolution function, then such clause is not an arbitration clause governed by Civil Procedure Code Art. 697–715.

2. An agreement to submit a dispute to the jurisdiction of an arbitration court in which the “decisional” function of the arbitration court would consist solely of conducting mediation in order for the parties to reach a settlement is not an arbitration clause.

The essence of an arbitration clause is submission of a dispute to the arbitration court for resolution. If the agreement does not provide the arbitration court with a dispute-resolution function, then it does not contain an arbitration clause.

1. The ability for the dispute to be heard by the state court is excluded so long as the parties are bound by an arbitration clause. The Civil Procedure Code expressly mentions only two situations in which an arbitration clause loses force (Art. 702 §1 and 707 §2). There is no doubt, however, that this may occur also in other instances, specifically if a written agreement is concluded dissolving the clause.

2. If the parties were bound by a cooperation agreement which contains an arbitration clause, the original arbitration clause remains valid following lapse of a settlement agreement submitting enforcement of a specific claim to the state courts.

1. Because the respondent signed the contract, and it was undisputed that the contract was previously signed by the claimant, an “agreement in writing” was established as referred to in Art. II(2) and Art. V(1)(a) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards dated 10 June 1958 ([promulgated in Poland at] Journal of Laws Dz.U. 1962 No. 9 item 41) and in the section of the Ukrainian Code of Procedure governing the rules of the arbitration court ..., and in denying the interlocutory appeal against the order enforcing the award of the Ukrainian arbitration court the appellate court did not violate these provisions.

2. Civil Procedure Code Art. 1105 §2 governs matters subject to consideration in the situation provided for in Art. V(2)(a) of the [New York] Convention, and not in the situation governed by Art. V(1)(a) of the Convention.

1. Exclusion of the jurisdiction of the court and submission of a specific dispute to the jurisdiction of the arbitration court is determined by the agreement of the parties—concluded within the framework laid down by law. With respect to the form of such contract, under the requirements of Civil Procedure Code Art. 698 §1 and Art. 1105 §2, it must be a written agreement. While both of those regulations refer to conclusion of an agreement by the parties, ... when the agreement provides for the possibility of accession to the agreement by new entities, if they make such accession such entities are bound by the contents of the entire agreement, including the arbitration clause. ... When acceding to such agreement, the new entities need not conclude a separate agreement with respect to the arbitration clause, as the declaration of the intention of accession, made in writing, also means acceptance of the arbitration clause included in the agreement. The requirement with respect to the content and the form of such agreement is thus fulfilled.

2. A foreign arbitration court may be competent to resolve a dispute between entities that do not meet any of the characteristics of “foreignness” mentioned in Civil Procedure Code Art. 1105 §2, i.e. a registered office abroad, Or operating an enterprise there which is connected with the dispute that has been instituted. … Fulfilment of such requirements, i.e. the foreign element, by any of the parties is determined as of the time of conclusion of the jurisdictional agreement, and not as of the time of commencement of the dispute between the parties who are bound by the arbitration clause.

The plaintiff’s sale of its shares in the defendant company does not affect the plaintiff’s continuing to be bound by the arbitration clause included in the articles of association, because it is the legal relationship (the subject of the dispute)—in this case, a share in net profit—that was submitted to the jurisdiction of the arbitration court, and not specific parties to the dispute having the legal status of a shareholder.

An arbitration clause is an agreement governed by Civil Code Art. 65.

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.

1. An agreement vesting jurisdiction in a foreign court or an arbitration court operating abroad (Civil Procedure Code Art. 1105 §§ 1 and 2) must be preceded by the existence of domestic jurisdiction. Exclusive jurisdiction of a Polish court may, however, constitute a barrier to effective conclusion of an agreement on jurisdiction. But such barrier functions only with respect to vesting jurisdiction in a foreign state court (Civil Procedure Code Art. 1105 §1, second sentence) and does not apply with respect to vesting jurisdiction in a foreign arbitration court, which is subject only to the limitations provided in Civil Procedure Code Art. 697 §1.

2. The requirement of “foreign status” of one of the parties as a condition for the permissibility of an arbitration clause as provided for in Civil Procedure Code Art. 1105 §2, refers to the phase of conclusion of the agreement on jurisdiction, and thus applies to the parties to such agreement and not the parties to the dispute covered by the arbitration clause.

3. Civil Procedure Code Art. 1105 §2 also applies to multilateral agreements. ... In the case of a multilateral agreement, it may happen that a foreign arbitration court has jurisdiction to hear a dispute between parties that are domestic entities.

It follows from the very nature of entering into a contract through implicit acts that this may involve only acts that were actually performed by the parties. In a situation where the opposing party denies submitting the dispute to the arbitration court, it cannot be said that an arbitration clause was concluded implicitly.

1. It is beyond doubt that a general power of attorney is insufficient to conclude an effective arbitration clause, because this is an act outside the ordinary course of business.

2. Inclusion of an arbitration clause in a form contract constituting an enclosure to an order issued by the president of the [Agricultural Property] Agency should be treated as a specific power of attorney for the persons authorized to conclude tenancy agreement to validly conclude an arbitration clause.

1. An assignee enters into the legal position of the assignor. The flip side of this rule, as it were, is the permissibility of the debtor’s asserting against the assignee any defences that it had against the assignor as of the time it received notice of the assignment (Civil Code Art. 513 §1). The debtor of a claim under an agreement containing an arbitration clause who is sued before the state court may thus assert the arbitration clause as a defence (Civil Procedure Code Art. 697 §2 in connection with Art. 202) against the assignee as well.

2. The effectiveness of an arbitration clause against an assignee excludes assertion of the lack of an arbitration clause, as the plaintiff appears as an assignee who acquired the claim subject to the clause.

3. It is accepted that a conclusion of violation of the rule of law is justified when the result of the arbitration award conflicts with fundamental principles of the legal order of the state..., for example, the ruling by the arbitration court is clearly inconsistent with the established facts.

4. With respect to the criterion indicated in Civil Procedure Code Art. 712 §1(4) of principles of social coexistence, it is necessary to indicate specific principles of social coexistence that are irreconcilable with which the effects of the arbitration award.

1. Assessment of the correctness of the court’s interpretation of the parties’ declarations of will articulated in the arbitration clause goes beyond the hypothesis of the rule set forth in Civil Procedure Code Art. 698 §2, and is tied to the issue of proper application of Civil Code Art. 65 §§ 1 and 2.

2. The provisions of the Civil Procedure Code admit the possibility of concluding agreements on submission of a dispute for resolution by an arbitration court, but also the possibility of dissolving or renouncing them in an implicit manner. Thus if the defence of an arbitration clause is not asserted by the defendant by the time it joins issue in the dispute on the merits of the case, it should be accepted that the parties implicitly renounced the agreement on consideration of the case by the arbitration court which was previously concluded.

3. There are no grounds to deprive the defendant of the right to subsequently withdraw the defence of an arbitration clause previously asserted by it, and withdrawal of the asserted defence may be made expressly or implicitly.

It is not possible to enter into an agreement submitting to an arbitration court all disputes that may arise out of any future legal relations, undetermined as of the time of entering into the agreement, but in the event of conclusion of a specific agreement between the parties creating a legal relation between them, it is possible and permissible to submit to arbitration any and all disputes that may arise in the future under such legal relation.

An international treaty is binding both on the states that ratified it and on persons whose sphere of activity it governs. It is thus not necessary in a contract for the parties to refer to the provisions of an international treaty in force as the basis for the manner of dispute resolution or enforcement of an award.

1. Because an agreement does not limit the jurisdiction of the arbitration court in time only to the period in which the agreement is in force, it is clear that the arbitration court has jurisdiction to decide disputes also after the agreement expires. A different interpretation would be illogical and contrary to the nature of an arbitration clause. Disputes between the parties to an agreement typically arise after the agreement has expired or been terminated and concern mutual claims for the period when the agreement was in force.

2. Civil Procedure Code Art. 697 §2 clearly provides that so long as an agreement is in force to submit disputes concerning property rights to an arbitration court for resolution, the state court cannot be called upon to decide a dispute. The nature of the dispute is also the assessment of whether the debtor acknowledged in writing the receivable pursued by the creditor. This issue cannot be separated and submitted to a state court for decision. Dismissal of the petition because resolution of the case lies with the arbitration court (Civil Procedure Code Art. 199 §1(4)) is not subject to any condition and is not subject to the discretion of the court. If the grounds set forth in this provision are found (upon a defence asserted by the defendant, Civil Procedure Code Art. 202), the court shall dismiss the petition without considering whether or not the defendant acknowledges the claim asserted in the petition.

The dispute resolution clause provided in ... the parties’ agreement was in essence a contractual exclusion of domestic jurisdiction in favour of an arbitration court operating abroad (Civil Procedure Code Art. 1105 §2), as a consequence of which the statement of claim had to be dismissed (Civil Procedure Code Art. 1099).

1. If resolution of the case lies with the arbitration court to which the parties submitted the dispute for determination, specifying such court in the relevant arbitration clause, then only such arbitration court, and not the common court in Poland, is competent to decide the case, regardless of the substantive legal nature or the source of the plaintiff’s claim.

2. Pursuant to Civil Procedure Code Art. 697 §2, so long as the parties are bound by an agreement to submit a dispute for resolution by an arbitration court, they cannot demand that the case be heard by the court, and if a petition is filed with the court it has the duty in such a case to dismiss the statement of claim, pursuant to Civil Procedure Code Art. 199 §1(4), if the defendant has asserted the relevant defence in compliance with the requirements of Civil Procedure Code Art. 202, first sentence.

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.

The existence of a contract provision that may qualify as a valid arbitration clause, or as a contractual exclusion of the jurisdiction of the Polish courts (Civil Procedure Code Art. 1105), as well as contractual submission of the parties’ relations to “international law” (not more closely defined), prevents an affirmative determination by the Supreme Court that the dispute is subject to the jurisdiction of the Polish courts, which is a necessary condition for designation of the proper court. Ascribing to determination of jurisdiction the role of a condition, and thus conditioning the court’s authority to designate the court on a preliminary finding that there is domestic jurisdiction in the case, is based on Civil Procedure Code Art. 1099, which requires the court to take this issue into consideration on its own initiative no matter the posture of the case. The inability to make clear findings concerning jurisdiction thus requires denial of the motion to designate the court.

The parties and the arbitration court itself are given great discretion to determine the procedure before the arbitration court, although the Civil Procedure Code does establish certain minimum rules that are mandatorily applicable (juris cogentis).

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.

The provision of the contract under which the parties submit property disputes that may arise out of the specified legal relationship to the panel of arbitrators at the Polish Chamber of Foreign Trade for resolution does not mean that recourse to the courts is impermissible in a case involving such a dispute, and thus that it is justified to dismiss the statement of claim pursuant to Civil Procedure Code Art. 199 §1(1). ... If resolution of the case rests with the arbitration court, that constitutes grounds to dismiss the petition (Civil Procedure Code Art. 199 §1(4)), which, however, the court will consider only upon objection by the defendant asserted and duly justified before joining issue on the merits of the case (Civil Procedure Code Art. 202).

Under Art. 4 of the Protocol on Arbitration Clauses signed at Geneva on 24 September 1923 (Journal of Laws Dz.U. 1931 No. 42 item 372), an arbitration clause is in the nature of a reference. Such reference does not mean that the courts have no jurisdiction in the event that the submission, arbitration clause or arbitration lapses or ceases to be in force for any reason. This provision is in the nature of a specific law in relation to the provisions of the Civil Procedure Code, particularly Art. 1099. Therefore, Civil Procedure Code Art. 1099 may not apply to the case if the arbitration lapses. Then the issue of domestic jurisdiction will be an open question.

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.

1. After a state court sets aside an arbitration award, as a result of granting a petition based on Civil Procedure Code Art. 712 §1(2)–(5), the arbitration court continues to maintain its jurisdiction to resolve the dispute.

2. A judgment by the court issued under Civil Procedure Code Art. 712 §1 (2)–(5), setting aside an arbitration award for the reasons exhaustively listed in that article, may not eliminate the civil-law agreement on the arbitration clause. Setting aside of an arbitration award under this article is strictly a matter of quashing; it abrogates the arbitration award, but does not deprive of legal force the agreement in which the parties submitted the dispute to resolution by the arbitration court. So long as the agreement remains in force, it may not be demanded that the dispute be heard by the court (Civil Procedure Code Art. 697 §2).

3. The entire arbitration award need not be challenged under Civil Procedure Code Art. 712, and even when the entire award is challenged, the judgment may set aside only part of the challenged award. Nor may it be excluded that the arbitration court will issue a partial award. A petition to set aside an arbitration award may be based on the same grounds that would provide grounds for a petition to reopen a civil proceeding. In all of these instances, if the position were adopted that the arbitration clause is abrogated by a state court judgment setting aside an arbitration award, there would be undesirable consequences arising from the different assumptions that may guide each of these courts (the arbitration court is not bound by provisions of substantive law).

4. A reservation in the agreement in which the parties provide that setting aside of an arbitration award under Civil Procedure Code Art. 712 will also cause the arbitration clause to be set aside is not excluded. However, even in such case, the reason for expiration of the clause will not be the force of the judgment setting aside the award, but the wording of the agreement linking the effectiveness of the clause to such a judgment.

The claim that the effectiveness of exclusion of domestic jurisdiction in favour of arbitration in London is defeated by the unenforceability in Poland of arbitration awards issued in the UK—in the absence of a treaty—is unjustified. The issue of the enforceability of arbitration awards cannot influence the effectiveness of jurisdictional clauses, because Polish law permits such clauses to be included in agreements with foreign counterparties.

The defence that the dispute is subject to consideration by an arbitration court is effective only if the parties to the proceeding made a valid arbitration clause.

1. Both an arbitration clause provided for in Civil Procedure Code Art. 698 and an agreement provided for in Art. 1105 require signatures of both of the contracting parties in order to be valid.

2. Neither inclusion of a Centrocon arbitration clause in a bill of lading nor reference to such a clause provided in a charter party meets the requirements for written form of the agreement provided by Civil Procedure Code Art. 1105 §3. A bill of lading is not a contract. Under Maritime Code Art. 120 ff., a bill of lading is a unilateral declaration of intent by the shipper or its representative in the form of a document constituting proof of acceptance of the cargo on the ship and authorizing the holder to dispose of the cargo and to receive delivery thereof.

The wording of §14 of the Transport Protocol on Polish-Czechoslovakian Cooperation for 1961, “When entering into any agreements, ... the interested enterprises ... shall stipulate the jurisdiction of the International Court of Arbitration in Gdynia for resolution of any possible disputes,” does not justify the conclusion that this provision submits all such future disputes identified therein to resolution by the arbitration court.

Section 14, as its wording indicates, only imposes on the enterprises of both of the contracting states the duty to include arbitration clauses in the agreements they conclude, and thus the position taken in the order appealed from is correct, that because the charter party binding on the parties does not contain such clause, this dispute is subject to the jurisdiction of the common court.

The defence that a matter is submitted to an arbitration court for resolution may only be raised upon objection by the defendant. As the defendant does not appear in the preparatory phase, the relevant defence may be asserted only once the case is pending.

The plaintiff could have alleged [loss of force of the arbitration clause] in the statement of claim filed with the state court, without first obtaining a separate ruling (court order) declaring the expiration of the arbitration clause. Under Civil Procedure Code Art. 498 §1, the “clause loses force” for the reasons set forth therein by operation of law, and a court ruling on expiration of the clause is merely declarative in nature.

An arbitration clause in a lease agreement ... concerning premises subsequently transferred to the State Treasury is not binding on the State Treasury. Under Art. 399 §1 of the Obligations Code, the acquirer is not also bound by any and all types of additional agreements which do not constitute integral elements of the lease relationship, and an arbitration clause should be regarded as one such additional agreement.

1. An arbitration clause is an agreement which requires written form in order to be valid. For the clause to be valid, there must be submission of a dispute for determination by an arbitration court, in a written declaration (Civil Procedure Code Art. 486 and 487). It is not possible to conclude an agreement submitting a dispute to determination by an arbitration court in an implicit manner.

2. Appointment of an arbitrator is not ... in and of itself a declaration submitting a dispute for determination by an arbitration court, and is not equivalent to making and signing an arbitration clause.

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. 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.

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. [Civil Procedure Code] Art. 503 §1(4) regards it as sufficient grounds for a petition to set aside an arbitration award if in its substance the award violates public policy or fair practices, but Art. 502 authorizes the court to take notice of the inconsistency between the substance of the award and public policy and fair practices only when such appears from the arbitration record submitted to the court.

2. Pursuant to a petition to set aside an arbitration award, a normal adversarial proceeding is held (Civil Procedure Code Art. 505), during the course of which evidence may be admitted in accordance with general rules.

3. By its nature, a proceeding for issuance of an enforcement clause should be short and simple, and this could not be achieved if it were necessary to admit evidence in proof of the factual circumstances necessary to determine whether in its substance the arbitration award violates public policy or fair practices. For this reason as well, the Parliament restricted the state court to just one source of information, namely the arbitration record, i.e. written documents whose consideration and assessment generally do not entail any difficulties which could prolong the proceeding. If there were no such restriction, with respect to defects in an arbitration award as discussed here, there would be no difference between the two types of proceedings in the state court, which would be inconsistent with the one-track nature of the proceeding, which is consistently implemented in Polish procedural law.

The management board of a limited-liability company, as the appointed representative of the company under Commercial Code Art. 198, does not require a specific power of attorney to conclude an arbitration clause, and thus the liquidators of the company, whose scope of action corresponds to the scope of action of the management board, do not require such power of attorney either.

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. Civil Procedure Code Art. 150, which permits service at night only upon prior order by the director of the court, does not apply to arbitration procedure, where the general regulation of Civil Procedure Code Art. 500 §1 provides only that the arbitration court shall serve copies of the award on the parties, against written proof of service, but does not prescribe the manner of service.

2. Obligations Code Art. 82 permits an agreement to pay a specific sum of money in the event of failure to perform an obligation, and thus the arbitration court did not violate public policy by ruling on a monetary penalty....

3. The allegation that the arbitration award does not explain the grounds for monetary obligations is unjustified, because the parties released the arbitration court from the duty to provide a justification for the award.

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]).

1. A party bound by an arbitration clause which in its opinion is invalid may file a case in the state court, which will take up the issue of the validity of the clause only if the other party, prior to joining issue on the merits, asserts as a defence that the case belongs in arbitration; otherwise, even a valid clause will cease to be in force (Civil Procedure Code Art. 235).

2. An arbitrator may be recused for the same reasons as a state court judge, who is recused if there is a personal relationship between the judge and a party raising justified doubts as to the judge’s impartiality.

In terms of interpretation and assessment of the rationale for the conditions set forth therein, as well as determination of whether such a condition has occurred, an arbitration clause, like any other agreement, is subject to provisions of substantive law, and thus, with respect to conditions, Obligations Code Art. 46–49.

1. An arbitrator is never recused purely by operation of law, as is the case under Civil Procedure Code Art. 54, but recusal of an arbitrator occurs only via a party, and only Civil Procedure Code Art. 55 may be applicable.

2. Recusal of an arbitrator may not be raised for the first time via a petition under [Civil Procedure Code] Art. 503 §1.

3. Neither the German Civil Procedure Code, under which the arbitration clause was made, nor the Polish Civil Procedure Code defines the relationship under the clause as purely personal and not passing to the general successor by way of universal succession.

1. A settlement concluded before an arbitration court is equivalent to a state court judgment, but only with respect to its enforceability and effectiveness as an executable writ (Civil Procedure Code Art. 501 §2 and Art. 527(3)). It does not have res judicata effect with respect to the issues determined therein, as the act expressly gives such effect only to legally final judgments, and such effect may not be extended to other writs of enforcement (Civil Procedure Code Art. 382).

2. As the case submitted to the arbitration court for resolution was resolved by settlement, the arbitration clause was exhausted and only the settlement exists.

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. Pursuant to Civil Procedure Code Art. 480 §1, an arbitration clause must be made in writing. It follows from this that the content of such clause is determined solely by the wording of the written document, and therefore the written terms of the clause may not be supplemented on the basis of the testimony of witnesses.

2. An arbitration clause not signed by one of the parties was invalid (Civil Procedure Code Art. 480 §1).

1. The allegation in the petition for review that the objection that the arbitration court exceeded its authority and overstepped the arbitration clause is not an objection that halts the dispute (§ 274 of the [former German] Civil Procedure Code) is correct. Such objection may be raised for the first time at the second instance (§ 529 of the [former German] Civil Procedure Code).

2. Whether the procedure before the arbitration was permissible must be ruled on by the state court which has been requested to issue an enforcement judgment (§ 1042(1) of the [former German] Civil Procedure Code), as the ruling by the state court must be independent, i.e. must be based on its own findings and legal views.

3. Joining issue in the dispute after assertion of a defence may not be deemed implicit consent to arbitration, because the party joins issue in the dispute in order to defend its rights in the event that the defence asserted and maintained by it proves to be unjustified.

While it is true that it was doubtful and disputed under the 1895 Austrian Civil Procedure Code whether a defence that the case is to be resolved before an arbitration court is a defence that the case is not justiciable, or that the court does not have jurisdiction, from the point of view of the [Polish] Civil Procedure Code there is no doubt that it is a different type of defence halting the trial.

1. Award of the costs of the proceeding by the arbitration court, even though not mentioned in the arbitration clause, does not invalidate the award if it was made at the request of both parties, expressed in writings submitted to the arbitration court, as in this way the clause was supplemented in compliance with the requirements as to form in Civil Procedure Code Art. 480.

2. Determination of the amount of the costs of the proceeding before the arbitration court rests with the arbitration court and lies outside the bounds of review by the state court (Civil Procedure Code Art. 502 and 503).

3. Discovery of the forgery of a document may be grounds for setting aside an arbitration award. ... The view that forgery of a document must be evidenced by a judgment is not founded on any provision of law, and more specifically is contrary to Civil Procedure Code Art. 445 §1(1) and thus contrary to Art. 503 §1(5).

1. The common courts are appointed to resolve disputes under private law, unless such cases are presented to other courts or authorities pursuant to statute (Civil Procedure Code Art. 2), and thus the ability for the parties to conclude an agreement submitting a dispute to an arbitration court for resolution (Civil Procedure Code Art. 8 and 479 §1) is dependent on a number of regulations, specified in Civil Procedure Code Art. 480 et seq., compliance with which is a necessary condition for an arbitration award to obtain legal force equal to a state court judgment (Civil Procedure Code Art. 501 §2).

2. In light of the rigorous regulations concerning the permissibility of an arbitration court’s resolving disputes which are as a rule submitted for determination by the state courts, any agreements under which the parties seek to secure performance of a possible resolution by an arbitration court that does not meet the conditions provided by law are invalid, as permitting such agreement would provide an opportunity to circumvent the regulations necessary for an arbitration award to obtain binding force, as well as review by the state courts, provided for by law, of whether the substance of the award or settlement violates public policy or good practice (Civil Procedure Code Art. 502).

It is true that in the instances provided in Civil Procedure Code Art. 491 §1(1) and (2) a ruling by the state court on expiration of the arbitration clause is not necessary, because the clause itself or the agreement on dissolution provides sufficient clarification of the fate of the clause, and any court may confirm the expiration of the clause in a dispute pending before the court. But it does not follow from this that a party could not in such instances also seek a ruling by the state court on expiration of the clause, which the party is authorized to do by Civil Procedure Code Art. 491 §2.491

1. Parties with the capacity to independently incur an obligation may agree to submit a dispute to an arbitration court. Such agreement (or arbitration clause) is thus a private-law agreement and is binding on the parties like any private-law agreement. As long as the arbitration clause is in force, the parties may not submit the case to a state court, because that is what they undertook contractually, but they may do so if the arbitration clause ceases to be in force.

2. An arbitration clause ceases to be in force in the instances enumerated in Civil Procedure Code Art. 491 §1. This provision does not make expiration of the clause dependent on a judicial ruling, and thus expiration of the clause occurs through the mere occurrence of the events enumerated in Civil Procedure Code Art. 491 §1(1)–(6).

1. The violations referred to in Civil Procedure Code Art. 503 may occur with respect to only a portion of the claims considered by the arbitration court, and in such case they will also justify only partial setting aside, because in order to exert such effect the defects mentioned in Art. 503 must affect the issuance of the ruling. Thus, as partial setting aside is generally permissible, it must be left to the discretion of the party whether it wishes to exercise the right arising under Art. 503 in full or in part. Exclusion of a certain portion of the ruling in the petition may not be undertaken solely in such a manner that partial setting aside of the arbitration award cannot be dictated by considerations of litigation defence.

2. Because in the dispute before the arbitration court, the defendant [i.e. the claimant in the arbitration case] could have standing only under the principle of an assignment for collection, Civil Code § 404 is applicable. Because under this provision the debtor may assert the arbitration clause also against the new creditor, the clause must be binding also on the new creditor.

3. Depriving a party of the ability to defend its rights is not absolute grounds for setting aside an arbitration award, but such violation will result in setting aside the award only if it affected the issuance of the award.

1. If the arbitration clause covered only a dispute over principal, excluding the issue of interest, and the arbitration court considered the case only within such bounds, there cannot be any barrier to the party then commencing a case before the state court for interest; if, however, the parties submitted to the arbitration court not only the issue of principal, but also interest, in such case failure by the arbitration court to consider the dispute over interest cannot deprive the party of the right to then pursue such dispute before the state court, as otherwise the dispute over interest would be excluded altogether from judicial consideration, with the party left powerless to oppose it.

2. The arbitration court’s exceeding the scope of the authority vested in it by the arbitration clause results in invalidity of the arbitration award, but narrowing of such scope does not.

1. Written form is the mandatory form for an arbitration clause (§ 577(3) of the [former Austrian] Civil Procedure Code) and thus the arbitration clause may not be supplemented by oral agreement, not to mention in an implied manner.

2. The bounds within which an arbitrator should rule are determined solely by the terms of the arbitration clause, confirmed in writing.

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.

The reservation in an agreement that disputes arising out of the given legal relationship between the parties are to be resolved by an arbitration court is material and binding on the assignee just as it is on the assignor.

The motion to stay the proceeding in the case because of an agreement reached by the parties’ attorneys ... providing for drawing up an arbitration agreement in the form of a notarial deed … could not be granted because until a decision is issued by the court substituting for the arbitration clause, the proceeding in the case before the state court cannot be stayed pursuant to [former Russian] Civil Procedure Code Art. 1375.

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.

An agreement to submit future cases to an arbitration court does not exclude enforcement before the common state court of a claim under a promissory note issued as security.

An arbitration clause signed for a joint-stock company by only one commercial proxy is invalid if a signature for the company by a single person is not provided for in the commercial register.

The demand for a holding that the arbitration clause is deprived of legal force is properly grounded on §583(2)(2) of the [former Austrian] Civil Procedure Code, pursuant to which an arbitration clause loses its binding force not only when an arbitrator expressly referred to in the clause refuses to perform the obligation imposed on him as a result of accepting the duties of an arbitrator, but also when this is done by an arbitrator appointed by a party pursuant to the arbitration clause. In both of these instances, both parties have a right to demand a ruling that the arbitration clause is deprived of legal force.

An arbitration award may be effective only for or against a person who in a written document has submitted a disputed right or disputed legal relationship to determination by the arbitration court.

The amended Art. 1367, 1370 and 1370¹ of the [former Russian] Civil Procedure Code, insofar as they contain substantive legal norms, that is with respect to a compulsory submission to arbitration and appointment of arbitrators without the consent of both parties, may not be applied with respect to general arbitration clauses concluded before entry into force of the act of 16 July 1925 [amending the former Russian Civil Procedure Code].

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).

1. An award by an arbitration court which according to the arbitration agreement is to be established in Vienna and hold sessions there would not be enforceable in Poland.

2. The plaintiff may not be forced first to conduct a pointless dispute before a foreign arbitration court and only after that pursue the same dispute before the Polish court. The defence of lack of jurisdiction of the court is therefore not justified.

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.

Because the jurisdiction of the arbitration court is justified by the written agreement of the parties submitting a dispute for it to resolve (§577 of the [former Austrian] Civil Procedure Code), the defendant incorrectly asserted the defence of the lack of jurisdiction of the state court because the dispute arising out of the agreement concluded with the debtor was submitted under such agreement to the resolution of the arbitration court. The arbitration agreement was not concluded by the plaintiff, and therefore such procedural defence may not be asserted against it. Because the plaintiff could not submit to the arbitration court the determination of the legal existence of the assigned receivables (§308(1) of the Execution Ordinance), under the position taken by the appellate court it would be deprived of its right entirely, before both the state court and the arbitration court. Moreover, such a view would provide an incentive to the debtor to submit disputes to arbitration, as in this manner it would be protected against claims by its creditors.

The law requires written form for the validity of an arbitration agreement because only a document enables a quick and clear determination that the agreement was made and identification of the dispute it refers to.

This type of clause [for arbitration in Paris], under the current law and from the point of view of the court and the legal rules that were in force when the agreement was concluded, is moot, because given the lack of a bilateral convention with France, an arbitration award issued in France would be unenforceable in Poland, as under the general rule of private international law no person may be deprived of the pursuit of its rights and claims.

No contract may be so far-reaching that as a result of the contract a party is deprived of rights reserved to it by the public order established within the state (Art. 6 of the [former Russian] Civil Procedure Code), and such rights include the right to apply to the courts for the purpose of realizing a subjective right to the fullest extent.

The institution of arbitration courts is by its nature founded on the special confidence of both parties in one another, namely that each of them will appoint as an arbitrator a person known for honesty and trustworthiness. Thus an arbitration agreement is binding only on the persons who concluded it, and beyond that perhaps only their heirs.

In order for the court to permit execution, evidence must be presented to the court that an arbitration award constituting a writ of enforcement was issued by a properly appointed arbitration court, and such evidence is presented by the submission to arbitration, constituting in the given instance an integral part of the writ of enforcement.

§ 39 of the statute [of the Lwów Land Credit Association, as ratified by the Austrian government in an 1841 patent], specifying the jurisdiction of the state courts in certain disputes involving the association, refers only to disputes between the association and its members that are not submitted to arbitration pursuant to § 41.

An arbitration provision in a collective agreement would have legal effect only when the agreement was signed by both parties (§ 884 of the [former Austrian] Civil Code), or by their attorneys-in-fact “specifically” authorized to conclude the agreement (§ 1008 of the [former Austrian] Civil Code).

There is no provision in the code prohibiting the parties from including a provision in a valid arbitration clause that if one of the arbitrators refuses to take part in the proceeding or sign the award, the other remaining arbitrator or arbitrators together with the presiding arbitrator shall constitute the complete arbitration court appointed in accordance with § 577 of the [former Austrian] Civil Procedure Code.

The defendant’s objection to appointment of a super-arbitrator is not justified by Civil Procedure Law Art. 1370¹, which clearly vests this right with the court, and the arbitrators’ mutual selection of the super-arbitrator is not provided for in the statute.

Because it was found that the petitioner had not signed the arbitration clause, through placement of her signature or her mark, it was correctly ruled that the arbitration award issued on the basis of such clause was ineffective, and with respect to both petitioners; from the nature of the legal relationship which was to be determined by the arbitration award, there is an apparent uniformity of interest for both of the petitioners.

1. The clear wording of the deed of purchase and sale leaves no doubt that the parties submitted to the arbitration court, in advance, all disputes which might arise out of the contract, certainly not excluding a dispute over transfer of ownership.

2. When referring in the deed to the West Prussian Chamber of Agriculture as authorized to appoint the presiding arbitrator, the parties must have had in mind, for the future, the analogous Polish institution, because the deed was concluded after signing of the Treaty of Versailles, in which Pomerania was awarded to Poland.

Only certification by a notary or justice of the peace of the signatures of all the persons taking part in the arbitration court—that is, the signature of the parties as well as the arbitrators—gives solemn form to the submission to arbitration, and, as follows from that, transforms such deed from an ordinary writing into a submission to arbitration, pursuant to the common maxim that the form gives being to the thing (forma dat esse rei). In other words, in cases where the parliament requires certain strict forms in performing an act, the act itself exists only if such forms are observed.