1. [T]he concept of an ‘agreement in writing’, whereunder parties undertake to refer a dispute to arbitration, has been explained as meaning both an arbitration clause contained in a contract (i.e. relating to disputes which may arise in the future) as well as a compromise, i.e. an agreement to refer a dispute to arbitration concluded after a dispute has arisen.
2. [D]evelopment of means of distance communication results in acceptance of the viewpoint that the intent of Art. II (2) sentence 2 of the New York Convention is fulfilled also if a declaration of will is made by new technical methods, including an exchange of e-mails or faxes. In any of these situations, however, two requirements need to be fulfilled. Firstly, since we are dealing with a contract, it is necessary for each of the parties to clearly express its will to refer the dispute to arbitration, which is tantamount to acceptance of exclusion of a case from jurisdiction of a state court. Secondly, mutual acceptance of the idea to refer a dispute to arbitration is not sufficient. It is necessary for the parties to make a declaration of will in a way that fulfils the requirement of written form within the meaning of Art. II (2) sentence 2 of the New York Convention.
3. To conclude an ‘agreement in writing’ within the meaning of Art. II of the New York Convention it would be also necessary in the situation at hand to make another declaration, whose content would express the will of the contractor agreeing to having a case recognized by an arbitration court. Only then it could be possible to say that was ‘an exchange of letters or telegrams’ (also faxes, e-mails, etc.) within the meaning of Art. II (2) sentence 2 of the New York Convention, understood as documents referring or corresponding to each other and containing consistent declarations of will of the parties to refer a dispute to arbitration. This criterion is not fulfilled, if the parties correspond with each other about matters related to the contract, but from the content of this correspondence it does not follow that an ‘exchange’ took place within the meaning of Art. II (2) sentence 2 of the New York Convention, so an ‘exchange’ of declarations concerning establishment of jurisdiction of an arbitration court.
4. [C]onclusion of an ‘agreement in writing’ or making an arbitration agreement is always a subject to assessment by an arbitration tribunal or a state court which decides on its jurisdiction or lack of jurisdiction to hear the case.
5. Effective reliance on the grounds for application of Art. 1162 § 2 sentence 2 of the Polish Civil Procedure Code is (…) possible only if a contract is concluded with respect to which a dispute may arise, i.e. the so-called main contract (…).
6. [T]o effectively rely on existence of an arbitration clause, it is not sufficient for the contractor to challenge the conclusion of the main contract (for example, a sales contract) in which reference is made to the arbitration agreement contained in another document. The issue of existence of the arbitration agreement always requires a separate assessment and a decision on the validity and effectiveness of the arbitration clause.
7. Competence of an arbitration tribunal to settle a dispute results from the will of the parties. This will should be (in legal categories, i.e. terms of assignability of the declaration) unquestionable (…).
Data wydania: 04-04-2019 | Case no.: III CSK 81/17Key issues: New York Convention, arbitrability of dispute, arbitration agreement, jurisdiction of arbitral tribunal
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. An arbitral tribunal to resolve disputes may, in particular be the Sports Arbitral Tribunal at the Polish Olympic Committee established in the Sports Act of 25 June 2010.
2. [B]y stipulating the institution of an arbitral tribunal in the bylaws of a sports association, the parties are assured the possibility to subject an award to judicial review in the form of a petition to set aside an arbitration award. Therefore, it needs to be assumed that a state court may review an arbitration award.
3. [S]ince the lawmaker has not stipulated an express legal ground which would ensure jurisdiction of state courts in case of disputes, there are no grounds to question the ability of arbitral tribunals established by internal bodies of sports organisations to resolve such kind of disputes.
4. Admissibility of referring a dispute to arbitration is contingent upon prior establishment of an arbitral tribunal and conclusion of an effective arbitration agreement in interior regulations, which in the scope of disputes arising from the association relationship may be included in the bylaws. This also applies to Polish sports associations. (…). An arbitration agreement contained in the bylaws of Polish sports associations, sports associations or sports clubs covers only disputes arising out of an association or company relationship. However, an arbitration agreement does not cover disputes between sports clubs and players. (…). It should be added that such an agreement is binding to the limited extent of issues arising from a membership relationship.
5. An arbitration agreement should unequivocally and precisely indicate that the parties covenant to refer specified disputes to arbitration.
Data wydania: 27-08-2018 | Case no.: VII AGa 386/18Key issues: arbitrability of dispute, arbitration agreement, jurisdiction of arbitral tribunal, petition to set aside arbitration award
1. Relying on objective illegality of actions of the other party to an agreement and possible concurrent grounds of liability does not override the competence of an arbitral tribunal.
2. [A]n arbitration award may be assessed in the context of procedural public order. Subject to assessment is the compliance with the fundamental procedural principles of legal order of procedure that have led to the delivery of the arbitration award (…).
3. An allegation of infringement of Art. 1183 of the Polish Civil Procedure Code may be justified, if an arbitral tribunal conducts proceedings in omission of evidence offered by a party, but only if this evidence was necessary to resolve the case (…).
4. The control of elements comprising an arbitration award cannot be of the same scope as substantive control (of validity) of such an award.
5. When hearing a case, an arbitral tribunal may be guided by legal intuition, and it does not need to – unlike a state court – strictly apply the provisions of substantive law, but may base its ruling also on the principles of equity or good faith. According to the public policy clause expressed in Art. 1206 § 2 point 2 of the Polish Civil Procedure Code, an arbitration award shall be set aside when effects determined by the award are incompatible with a specific norm which is one of the fundamental principles of this public policy (…).
6. The arbitration award that protects one of the partners encumbered with the contractual risk of failure of the business venture does not infringe upon trading certainty and the principle of trading security, in the situation when the investor (the Fund) could limit its own economic risk resulting from engagement of funds by correct, consistent with the agreement, and, above all, loyal conduct.
7. Application of the public policy clause is not aimed at verification whether the assessed arbitration award id compliant with all applicable absolutely binding provisions of law, but whether effects of such an award are contrary to the fundamental principles of national legal order.
Data wydania: 15-03-2018 | Case no.: I Aga 90/18Key issues: arbitration procedure, jurisdiction of arbitral tribunal, arbitration award, petition to set aside arbitration award
Articles 267 and 344 TFEU must be interpreted as precluding a provision in an international agreement concluded between Member States, such as Article 8 of the Agreement on encouragement and reciprocal protection of investments between the Kingdom of the Netherlands and the Czech and Slovak Federative Republic, under which an investor from one of those Member States may, in the event of a dispute concerning investments in the other Member State, bring proceedings against the latter Member State before an arbitral tribunal whose jurisdiction that Member State has undertaken to accept.
Data wydania: 06-03-2018 | Case no.: C-284/16Key issues: arbitrability of dispute, investment arbitration, arbitration agreement, jurisdiction of arbitral tribunal
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.
Data wydania: 01-12-2017 | Case no.: I CSK 170/17Key issues: arbitration agreement, jurisdiction of arbitral tribunal
1. The provisions of the Civil Code may be applied to an arbitration agreement only on issues not covered by a separate procedural regulation, and taking into account the specific nature of an arbitration agreement as an institution of procedural law. In other words, reference to substantive law in the event of a gap in the procedural regulation must be preceded in each instance by a consideration of whether the provisions of substantive law are appropriate in this case, given the procedural nature of an arbitration agreement, and if so, in what shape they should be applied.
2. [Art. 1161 §2 of the Civil Procedure Code] excludes framing an arbitration clause so that it violates the principle of equality, in particular by entitling only one of the parties to elect between commencing a case before the state court or the arbitral tribunal. This therefore applies to the wording of the clause and does not bar a situation in which one of the parties to the arbitration agreement, as a consequence of making of the clause by a falsus procurator, obtains the power to ratify it, and in consequence to be bound by the clause. If ratification occurs, both parties will be bound by the clause, and the assessment of its content will be governed inter alia by Civil Procedure Code Art. 1161 §2. This situation does not differ from instances in which ratification under Civil Code Art. 103 would involve an agreement of substantive law.
3. Civil Procedure Code Art. 1167 establishes the rule that a power of attorney to make a legal act granted by a business, regardless of the nature of the act, also empowers the holder to enter into an arbitration agreement. The legislature thus accepted that empowerment to make a transaction also implies empowerment to select arbitration as the procedure for resolving disputes arising out of the transaction, unless otherwise provided in the power of attorney. This provision erases the distinction between authority to enter into a legal act and authority to enter into an arbitration clause with respect to disputes involving that act. The type of power of attorney necessary to make the legal act is determined by statute (Civil Code Art. 98), and if the power of attorney is effectively granted, empowerment to make an arbitration clause is a derivative of that power of attorney.
4. Civil Procedure Code Art. 1167 should be regarded as the legislature’s response to the interpretation adopted in the case law, regarded as rigorous, with respect to the requirements for empowerment to conclude an arbitration clause. Considering that the scope of application of this solution is limited to businesses, this argues for giving it broader meaning than being limited to a power of attorney of a specific nature.
5. Civil Procedure Code Art. 1167 detaches the effectiveness of authority to conclude an arbitration agreement from its autonomous classification as an act that is or is not within the ordinary course of business, making it dependent only on the existence of effective authorization to make a legal act.
Data wydania: 13-09-2017 | Case no.: I CSK 33/17Key issues: jurisdiction of arbitral tribunal, settlement before arbitral tribunal
The Supreme Court is authorized to interpret the content of the arbitration clause, as the scope of its application is subject to examination by the court on its own initiative because it may result in dismissal of the claim (Art. 1165 §1 of the Civil Procedure Code). In making such interpretation, it must be assumed that the principal route for pursuing claims is through the courts. The interpretation of the arbitration clause thus may not extend so far that the competence of the arbitral tribunal is accepted contrary to the express intention of the parties as set forth in the agreement.
Data wydania: 14-06-2017 | Case no.: IV CSK 482/16Key issues: jurisdiction of arbitral tribunal, settlement before arbitral tribunal
1. Under Art. 1194 §2 of the Civil Procedure Code, in every instance, and thus also when ruling under general principles of law and equity, the arbitral tribunal shall take into consideration the provisions of the contract and the established customs applicable to the given legal relation. Such established customs include lex mercatoria (autonomous commercial law). Under either field, the basis for the resolution of the validity of the claim by the arbitral tribunal, depending on the procedural stance of the respondent, may be the relevant institution connected with the defence of setoff.
2. The legal construction of setoff may be relevant also for the dispute before the arbitral tribunal. In particular, once the dispute is pending before the tribunal, assertion by the opposing party of an effective defence (under substantive and procedural law) of setoff, depending on the substance of the overall procedural defence by the respondent in that proceeding, may exert the effect of acknowledgement of the debt by the party asserting that defence in the proceeding, and in further consequence lead to a kind of modification of the dispute in the proceeding (depending on the position of the party initiating the proceeding), which becomes an evaluation of the existence of the claim covered by that defence.
3. In a situation in which the existence of the claim determined exclusively by the defence of setoff constitutes the subject of the dispute in another proceeding, there are no grounds for finding that the plaintiff has a legal interest in obtaining a declaration that it was effectively set off. … Given such arrangement of the procedural relations between the parties, the arbitration agreement made by the parties applies to issues covered by the agreement within the meaning of Civil Procedure Code Art. 1161 (as it is connected with the issue of effective performance by the respondent of the obligation covered by the agreement), and it cannot be found that the agreement has ceased to be in force (Art. 1165 §2).
4. The construction of the institution of setoff in the specific conditions of the proceeding before the arbitral tribunal may speak in favour of considering it in that proceeding (if it was connected with acknowledgement of the claim covered by the arbitration agreement), unless the permissibility of asserting such defence (e.g. in a proceeding for an order for payment) is expressly excluded. Analogous reasons may constitute a basis for refusing enforcement of the arbitration award by the state court under Civil Procedure Code Art. 1214 §3(2).
5. After an arbitration award is enforced by issuance of an enforcement clause for the award pursuant to Civil Procedure Code Art. 1214 §2 (also considering the repealed portion of Art. 777 §1(2)) of the code), the award constitutes a writ of enforcement coming from a court, and consequently Art. 840 of the code may be applicable.
6. Leaving to the court the discretion to select the method of security does not mean that the choice can be arbitrary. The court is bound by the demand stated by the party applying for the security as to the method of security, the nature of which may relate only to the purpose of the proceeding, and in consequence may not affect the realm of procedural actions the other party is entitled to by law in terms of its freedom to exercise the legal means afforded to it in another proceeding. There is no justification in the civil procedure regulations in question for obstructing the course of proceedings before an arbitral tribunal.
Data wydania: 22-11-2016 | Case no.: I ACz 1997/16Key issues: interim measures, jurisdiction of arbitral tribunal
Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as not precluding a court of a Member State from recognising and enforcing, or from refusing to recognise and enforce, an arbitral award prohibiting a party from bringing certain claims before a court of that Member State, since that regulation does not govern the recognition and enforcement, in a Member State, of an arbitral award issued by an arbitral tribunal in another Member State.
Data wydania: 13-05-2015 | Case no.: C-536/13Key issues: New York Convention, jurisdiction of arbitral tribunal, recognition and enforcement of foreign arbitration award
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.
Data wydania: 08-05-2015 | Case no.: I ACa 255/15Key issues: arbitration agreement, jurisdiction of arbitral tribunal
1. The FIDIC conditions are a set of procedures and conditions describing the course of construction projects. Among other things, they describe the rights and obligations of the participants in the construction process, including in clause 20 the procedure for disputes and arbitration. … Interpretation of the provisions included in the FIDIC conditions included in the contract in force between the parties is made in accordance with the principles of interpretation of declarations of will (contracts) set forth in Art. 56 and Art. 65 §§ 1 and 2 of the Civil Code.
2. Pursuant to FIDIC clause 20.4, “If a dispute (of any kind whatsoever) arises between the Parties in connection with, or arising out of, the Contract or the execution of the Works, … either Party may refer the dispute in writing to the DAB [dispute adjudication board]”. The use of the word “may” in this clause should be understood only to mean that pursuit of claims is a right and not an obligation of a party. But if the party does decide to pursue the claim, according to FIDIC clause 20 it must submit the claim to a dispute adjudication board.
3. Pursuant to FIDIC clause 20.8, “If a dispute arises between the Parties in connection with, or arising out of, the Contract or the execution of the Works and there is no DAB [dispute adjudication board] in place, whether by reason of the expiry of the DAB’s appointment or otherwise: Sub-Clause 20.4 [Obtaining Dispute Adjudication Board’s Decision] and Sub-Clause 20.5 [Amicable Settlement] shall not apply, and the dispute may be referred directly to arbitration under Sub-Clause 20.6 [Arbitration].” Under the circumstances of this case, the possibility of referring the dispute directly to arbitration arose “otherwise,” i.e. by the parties’ failure to agree on the composition of the dispute adjudication board and failure by either of them to apply to the appointing authority to appoint the DAB.
4. The fundamental principles of the legal order are fundamental constitutional principles and the leading principles governing specific fields of substantive and procedural law.
Data wydania: 19-03-2015 | Case no.: IV CSK 443/14Key issues: jurisdiction of arbitral tribunal, arbitration award, petition to set aside arbitration award
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.
Data wydania: 08-05-2014 | Case no.: V ACz 343/14Key issues: arbitration agreement, jurisdiction of arbitral tribunal
1. The view cannot be shared that in connection with the dispute that had arisen the contractor should have brought about the appointment of a dispute adjudication board and presented the dispute to it, and the consequence of failure to take such actions is the loss of the possibility of effectively pursuing the claim. The section [of the FIDIC contract conditions] on Claims, Disputes and Arbitration does not provide for such sanctions.
2. In proceedings before the arbitration court the arbitrators are not bound by decisions of the [FIDIC] dispute adjudication board, whose decisions should be treated as evidence in the case. The decision by the dispute adjudication board cannot be treated analogously to an arbitration award, nor is the proceeding before the board a part of the proceeding before the arbitration court.
3. The contracting entity was properly informed of the need to perform additional works and did not dispute the need to perform them. It thus may not effectively allege that payment for such works violates fundamental principles of the legal order because public monies were involved in financing the works.
Data wydania: 28-11-2013 | Case no.: I ACa 550/13Key issues: arbitration procedure, jurisdiction of arbitral tribunal, petition to set aside arbitration 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.
Data wydania: 07-11-2013 | Case no.: V CSK 545/12Key issues: arbitration agreement, jurisdiction of arbitral tribunal
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.
Data wydania: 28-01-2011 | Case no.: I CSK 231/10Key issues: arbitration agreement, arbitration procedure, jurisdiction of arbitral tribunal, petition to set aside arbitration award
1. The New York Convention does not contain provisions indicating the form in which the parties should make a choice of law governing the arbitration clause. Art. V(1)[(a)] of the New York Convention does not require that the choice of law governing the arbitration clause be made in writing. The term “indication” should be interpreted to mean behaviour by a person in the form of writing, or any other behaviour that sufficiently reveals the person’s intent. Art. VI(2) of the European Convention on International Commercial Arbitration made at Geneva on 21 April 1961 uses the term “indication” without specifying the form, and thus “indication” should be interpreted as any behaviour by the parties indicating their joint intent.
2. It is not possible to conclude a settlement where, based on the nature of the disputed legal relations, the parties cannot freely dispose of the rights. Thus the appellate court holds that a dispute over the effectiveness of an agreement on sale of shares in a limited-liability company is not arbitrable.
3. The plaintiff determines who is a party when it initiates a dispute. The attribute of being a party is purely formal in nature and is not tied to the existence of a substantive legal claim, nor does it determine the jurisdiction of the arbitration court to decide the merits of the case. In a case where the arbitration court finds that it lacks jurisdiction over a “party,” it cannot be inferred that the ruling on the merits of the dispute is binding on that party. The party was not a party to the dispute on the merits because the arbitration court did not have jurisdiction over it.
4. Assessment of procedural acts of the parties in an arbitration proceeding lies within the power of the arbitration court, and a court ruling on recognition of an award may not make assessments contrary to that of the arbitration court, or assessments under the Polish Civil Procedure Code, which was not applicable in the proceeding before the arbitration court.
5. The state court is bound by the ruling of the arbitration court concerning its lack of jurisdiction to resolve specific disputes, regardless of whether the arbitration court’s interpretation of the scope of the arbitration clause was correct or not. It is clear that the arbitration court is authorized to rule on its own jurisdiction.
6. In order to decide on its jurisdiction, the arbitration court must consider the grounds for or against its jurisdiction. This cannot mean, however, that in cases in which the same issues are decisive of both the jurisdiction of the arbitration and the resolution on the merits the authority to resolve the issue of jurisdiction is also authority to decide the merits of the dispute. Otherwise the party would de facto be deprived of the ability to effectively assert the defence of lack of jurisdiction on the part of the arbitration court.
7. None of the provisions of law providing the arbitration court the authority to decide on its jurisdiction and analyze all factual and legal issues necessary to perform this task provides it a priori authority to decide the merits of the case. If the jurisdictional determination is negative, the arbitration court must refrain from deciding the merits of case. Review of the merits in such instance serves only as a basis for the jurisdictional ruling.
8. It is impermissible that res judicata effect of a ruling by the arbitration court would exert effects in Poland with respect to persons not covered by the legal finality of such ruling in the country of origin.
Data wydania: 24-09-2009 | Case no.: I ACa 995/08Key issues: arbitrability of dispute, arbitration agreement, jurisdiction of arbitral tribunal, recognition and enforcement of foreign arbitration award
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.
Data wydania: 07-08-2009 | Case no.: I ACz 397/09Key issues: arbitration agreement, jurisdiction of arbitral tribunal
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.
Data wydania: 05-02-2009 | Case no.: I CSK 311/08Key issues: arbitration agreement, jurisdiction of arbitral tribunal
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.
Data wydania: 17-05-2006 | Case no.: I CSK 16/06Key issues: arbitration agreement, jurisdiction of arbitral tribunal
1. The defence of an arbitration clause concerning the legal relationship between the issuer of a promissory note and the payee is also effective with respect to the issuer of the promissory note when, alongside the issuer of the note, the guarantor of the promissory note, who was not a party to the agreement submitting the dispute for resolution by the arbitration court, is also a defendant.
2. A promissory note obligation may be subject to an arbitration clause.
3. The effect of shifting the dispute onto the general ground of civil law, meaning that the resolution of the dispute requires assessment of the justification of the claim in light of the “underlying relationship” in connection with which the promissory note was issued, does not occur by the mere fact of filing defences to the order for payment. This effect depends on whether the interested party takes the relevant actions, and the court has no duty to act in this respect on its own initiative. The actions taken by the party may consist of the defendant’s assertion of defences to an order for payment with respect to the lack of grounds for the claim pursued based on the underlying relationship, or the plaintiff’s assertion, in the statement of claim or in the proceeding conducted as a result of assertion of defences to the order for payment, of allegations justifying the claim asserted also on the basis of the underlying relationship.
4. In the event of lack of actions by the parties causing the dispute to be shifted to the general ground of civil law, the dispute in the proceeding conducted pursuant to the defences against the order for payment is subject to consideration under the promissory note relationship.
5. A promissory note guarantor may defend against the holder of the note with all defences available to the person for whom he issued the guarantee, but this applies only to substantive defences (Art. 32 of the Promissory Note Law dated 28 April 1936, Journal of Laws Dz.U. 1936 No. 37 item 282), but the defence of an arbitration clause is a procedural defence. Without being a party to the agreement ... containing the arbitration clause, the defendant cannot assert the arbitration clause.
6. Civil Procedure Code Art. 72 §3 cannot be interpreted as a provision that changes the consequences of the lack of procedural grounds, and specifically as eliminating the effectiveness of an arbitration clause. If the clause is effective with respect to one substantive co-party, of any type, but is not effective with respect to the other co-party, the case with respect to the first co-party cannot be considered at all by the state court, and the statement of claim in this respect is subject to dismissal; however, with respect to the other co-party, the case is subject by consideration by the state court.
Data wydania: 24-02-2005 | Case no.: III CZP 86/04Key issues: arbitrability of dispute, arbitration agreement, jurisdiction of arbitral tribunal
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....
Data wydania: 08-08-2003 | Case no.: V CK 486/02Key issues: arbitration agreement, jurisdiction of arbitral tribunal
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.
Data wydania: 15-12-2000 | Case no.: I CKN 1131/00Key issues: arbitration agreement, jurisdiction of arbitral tribunal
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.
Data wydania: 16-03-2000 | Case no.: I CKN 1507/99Key issues: arbitration agreement, jurisdiction of arbitral tribunal
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.
Data wydania: 16-02-1999 | Case no.: I CKN 1020/98Key issues: New York Convention, arbitration agreement, jurisdiction of arbitral tribunal
1. Submission of a dispute for resolution by an arbitration court does not definitively exclude the jurisdiction of the state court. The proceeding before the arbitration court constitutes only a fragment of the entire system of protection of the interests of the claimant.
2. The position that a proceeding before the state court, initiated by filing of a motion for interim relief to secure a claim which will be pursued before the arbitration court, becomes an independent case within the meaning of Civil Procedure Code Art. 392 §1 is indefensible. Such proceeding remains a proceeding in which only a certain incidental issue is resolved. The ruling that is issued does not end the proceeding “in the case” even though it ends the proceeding initiated by the motion for interim relief. Only the arbitration award will be a ruling ending the case as a certain entirety submitted for judgment. An interim order issued by the state court concerning security for the claim is a ruling that resolves only an incidental issue.
Data wydania: 14-07-1998 | Case no.: III CKN 548/98Key issues: state court assistance, jurisdiction of arbitral tribunal
1. Recusal of an entire court may not be demanded, but only recusal of specific judges (one or more of them), identified by name, but this does not mean that in this case the arbitration court itself could determine that the motion by the defendant should not be granted. The province court correctly stated that the arbitration court may not decide a motion to recuse an arbitrator, either on the merits or on procedural grounds, even if the motion was clearly unjustified or late.
2. The ruling issued as a result of a petition to set aside an arbitration award is in the nature of cassation, and thus the state court may only set aside the award or deny the petition, and may not rule on the merits. In consequence, when the state court sets aside an arbitration award by granting a petition under Civil Procedure Code Art. 712 §1(2)–(5), the arbitration court retains its jurisdiction to decide the dispute.
Data wydania: 23-05-1996 | Case no.: I ACr 189/96Key issues: arbitrator, jurisdiction of arbitral tribunal, petition to set aside arbitration award
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).
Data wydania: 29-02-1996 | Case no.: I ACz 69/96Key issues: arbitration agreement, jurisdiction of arbitral tribunal
1. Which cases that are subject to consideration by the state courts may be submitted to arbitration is determined by the regulations governing arbitration proceedings.
2. Issuance of an enforcement clause must be preceded by a legally final ruling by the state court, pursuant to Civil Procedure Code Art. 711, confirming the enforceability of the arbitration award.
3. The only cases falling under the non-adversarial procedure that may be heard by an arbitration court are those rather rare cases whose nature allows for this, that is, those that meet the grounds [for arbitrability] provided in Civil Procedure Code Art. 697 §1.
4. Under current law, adversarial and non-adversarial proceedings are parallel tracks for judicial proceedings, and the non-adversarial procedure in property matters in which the court commences the proceeding upon application is not so different from the rules applicable in an adversarial proceeding that mere submission of a given matter to resolution through the non-adversarial procedure results in exclusion of the possibility of submitting such matter to an arbitration court for resolution.
Data wydania: 07-03-1979 | Case no.: III CRN 10/79Key issues: arbitrability of dispute, arbitration agreement, jurisdiction of arbitral tribunal, recognition and enforcement of domestic arbitration award
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.
Data wydania: 22-04-1966 | Case no.: I CR 433/64Key issues: arbitration agreement, jurisdiction of arbitral tribunal
Art. 1387 of the [former Russian] Civil Procedure Code authorizes arbitration courts to rule in disputes between the parties not on the basis of general regulations of judicial procedure and not on the basis of provisions of substantive law, but according to its own conscience—but not by any means to resolve fictitious disputes arising out of collusion between the parties in order to circumvent regulations of law.
Data wydania: 19-09-1934 | Case no.: C I 1998/33Key issues: jurisdiction of arbitral tribunal
An objection of lack of arbitrability does not have to do with non-justiciability, but refers to the jurisdiction of the court.
Data wydania: 12-06-1928 | Case no.: C 78/28Key issues: jurisdiction of arbitral tribunal
The fact that the procedure under provisions concerning arbitration courts does not contain an express provision on the costs of the dispute does not justify a finding that the arbitration court is not authorized to rule on the costs of the dispute. In any event, such provisions do not contain a prohibition in this respect, and [former Austrian] Civil Procedure Code § 577, which provides that a private law claim may be submitted to an arbitration court for resolution, also includes the authority to rule on the costs of the dispute as an auxiliary element combined with the resolution itself.
Data wydania: 18-01-1928 | Case no.: III Rw 253/27Key issues: arbitration procedure, jurisdiction of arbitral tribunal
Establishment in a silent partnership agreement of the jurisdiction of the arbitration court for disputes arising out of this contractual relationship is irrelevant for disputes over the existence of such relationship.
Data wydania: 05-04-1927 | Case no.: R 148/27Key issues: jurisdiction of arbitral tribunal