The Act of 10 September 2015 Amending Certain Acts to Encourage Amicable Methods of Dispute Resolution (the “Amending Act”) entered into force on 1 January 2016, reforming inter alia the regulations concerning the independence and impartiality of arbitrators and the system of post-arbitration proceedings, including proceedings before state courts to set aside arbitration awards and for recognition and enforcement of awards.

Art. 9 of the Amending Act provides that proceedings commenced under the Civil Procedure Code and not completed before the effective date of the act shall be governed by the prior regulations. This provision follows the rule of procedural consistency, which is one of the fundamental inter-temporal principles of procedural law. It might seem that Art. 9 of the Amending Act should be interpreted to mean that the new provisions concerning inter alia petitions to set aside awards should apply to post-arbitration proceedings commenced on or after 1 January 2016, regardless of when the arbitration award was issued or the settlement was concluded. Meanwhile, in the case of the change in regulations concerning the independence and impartiality of arbitrators, which is connected to the proceedings before the arbitration court, the Amending Act applies to arbitration proceedings commenced on or after 1 January 2016, regardless of when the arbitration agreement was made.

Under this state of affairs, the practical issue of applying the interim provisions of the Amending Act in connection with the shortening of the period for filing a petition to set aside an arbitration award from three months to two months requires attention. This period runs from the date of service of the award on the party, or, if the party applied for supplementation, correction or interpretation of the award, from the date of service by the arbitral tribunal of the ruling on that application (Civil Procedure Code Art. 1208 §1). If the arbitration award or the ruling on a request for supplementation, correction or interpretation of the award was served on the party in October, November or December 2015, the question arises which of the periods—3 months or 2 months—will apply to a petition to set aside the award.

A court examining fulfilment of the formal requirements of a petition filed after 1 January 2016 will apply the new procedural law, and, applying the provisions on appeals as relevant, pursuant to Civil Procedure Code Art. 1207 §2, will reject in closed session a petition filed after the applicable deadline. Because of the lack of interim relations directly addressing the period for filing a petition to set aside an arbitration award, a linguistic interpretation of Art. 9 of the Amending Act could be made leading to a conclusion that upon commencement of the proceeding to set aside the award, the new procedural law applies without exceptions, and thus a petition filed after the end of the 2-month period is late and must be dismissed.

Further complications are generated by the fact that relevant application of the provisions on appeals to a proceeding to set aside an arbitration award provides grounds for concluding that the 2-month period for filing a petition to set aside an award is a statutory period of procedural law. Under prior law, this issue was the subject of debate in the literature, with some commentators taking the view that the 3-month period for filing a petition to set aside an award was a period of substantive law and expiration of the period extinguished the right. Accepting that under the new law the period for filing a petition to set aside an award is procedural in nature would prevent the exclusion of Civil Procedure Code Art. 1208 §1 from the scope of Art. 9 of the Amending Act and application to this norm of the inter-temporal rules of substantive law, under which in these circumstances the 3-month period would apply (Art. XXXV(2) of the Regulations Introducing the Civil Code, regarded in the case law as the source of general inter-temporal rules of civil law).

Notwithstanding the foregoing arguments, I take the view that there is a permissible interpretation under which in these circumstances the 3-month period will apply even if the proceeding to set aside the award is not commenced until 2016. Under Civil Code Art. 111 §2, in connection with Civil Procedure Code Art. 165 §1, a period begins to run on the day following the day in which the event occurred which the legislature deemed to start the period. In this case, the event governed by Civil Procedure Code Art. 1208 §1 is service of the arbitration award on the party, which is a procedural act made by the arbitral tribunal itself or by the permanent arbitration court. This leads to the conclusion that even though Art. 1208 §1 is found in Title VII, Part Five of the Civil Procedure Code (Petition to set aside arbitration award), it is functionally tied to the proceeding before the arbitral tribunal, and thus under the proposed interpretation of Art. 9 of the Amending Act, it will apply—like the provisions amending the regulations on independence and impartiality of arbitrators—only to arbitration proceedings commenced on or after 1 January 2016, rather than proceedings to set aside an arbitration award commenced on or after 1 January 2016.

The proposed interpretation is pro-constitutional in nature, because finding that a period that has already begun to run is shortened because of entry into force of a new act (despite the lack of a provision clearly addressing this issue) seems irreconcilable with principles of the rule of law, particularly the prohibition of retroactive effect. Application of the shortened period to filing of a petition to set aside an arbitration award would mean that the amendment of the Civil Procedure Code prejudiced a right of the parties to the arbitration proceeding arising prior to entry into force of the amendment, thus retroactively regulating the rights and obligations of persons. This is most strikingly illustrated by the situation in which the period for filing a petition to set aside an arbitration award would expire immediately upon entry into force of the Amending Act.

The simplified version of this article "Polubowne rozwiązywanie sporów: Nowelizacja nie może skracać terminów w czasie ich biegu" was published on 16.02.2016 r. in Gazeta Prawna