Commercial Arbitration

Last verified on Thursday 20th May 2021

Commercial Arbitration: Poland

Maciej Łaszczuk and Justyna Szpara

Łaszczuk & Partners

Infrastructure

1. Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?

Poland

Poland has been party to the New York Convention since 1 January 1962. Poland asserted a reciprocity reservation and a commercial nature of disputes reservation. Since the reservations were made at accession, but not confirmed at ratification, the issue as to whether the reservations are effective is debatable, but the majority view confirms their effectiveness.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

2. Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?

Poland

Poland is a party to the European Convention on International Commercial Arbitration of 1961 (since 14 December 1964). Poland is a party to bilateral treaties relating to recognition and enforcement of the arbitral awards with Algeria, Bosnia and Herzegovina, China, Croatia, Iraq, Macedonia, Montenegro, Morocco, Serbia, Slovenia, Syria and Turkey. Poland remains a party to the Geneva Protocol on Arbitration Clauses in Commercial Matters of 1923, although due to its replacement by the New York Convention among convention countries, under article VII(2) of the convention, the relevance of the protocol is very limited.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

3. Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?

Poland

Polish arbitration law is included in a separate chapter of the Polish Civil Procedure Code (CPC). It is based on the UNCITRAL Model Law, with some differences. Unlike the Model Law, Polish arbitration law is not limited to international commercial arbitration, but applies to all arbitral proceedings when the place of arbitration is in Poland.

If the place of arbitration is abroad or undetermined, Polish arbitration law will apply only as expressly provided.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

4. What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?

Poland

The most prominent institution in Poland for international arbitration is the Court of Arbitration at the Polish Chamber of Commerce. It may act as an appointing authority. There are other arbitration institutions, but of less significance. There are also a number of institutions designated for resolving disputes in a particular industry, such as the Court of Arbitration at the Polish Chamber of Information Technology and Telecommunications (for internet domain disputes), the Court of Arbitration at the Gdynia Cotton Association and the International Court of Arbitration at the Polish Chamber of Maritime Commerce (IMAC). The Polish Arbitration Association promotes arbitration in Poland. It may also serve as an appointing authority.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

5. Can foreign arbitral providers operate in your jurisdiction?

Poland

Foreign arbitral providers may operate freely within Poland.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

6. Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with, and supportive of, the law and practice of international arbitration?

Poland

The reform of Polish arbitration law effective as from 1 January 2016 entrusted proceedings pertaining to setting aside as well as recognition and enforcement of arbitral awards to courts of appeal, as the courts of the only instance. The purpose of the change was to shorten post-arbitration litigation, as well as to enhance the quality of rulings in arbitration-related cases.

There is no appeal available against rulings of courts of appeal in proceedings for setting aside of an award or enforcement of a foreign award. However, a cassation appeal to the Supreme Court is available in every case, regardless of the amount in dispute or the subject matter of the case. This should serve the purpose of having the most controversial issues related to arbitration decided by the top-level court. The only exception are proceedings for recognition or enforcement of an arbitration award issued in Poland, where a cassation appeal to the Supreme Court is not available, however, it is possible to file a complaint against the decision of a court of appeal to another panel of the same court of appeal.

The Polish courts have a neutral approach towards the law and practice of international arbitration. This is changing, however. Only recently, the Supreme Court has indicated the need to interpret an arbitration agreement in favorem jurisdictionis arbitrii, particularly in international trade (see the judgment of 1 December 2017, I CSK 170/17).

Answer contributed by Maciej Łaszczuk and Justyna Szpara

Agreement to arbitrate

7. What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?

Poland

An arbitration agreement must be made in writing or contained in correspondence, including electronic correspondence, if it enables the content to be recorded. It may be incorporated by reference (eg, in general terms and conditions).

Arbitration agreements can cover future disputes, except for labour and consumer disputes, where the arbitration agreement may be made only after the dispute has arisen (and must be signed by the parties). Moreover, an arbitration agreement that covers consumer disputes will be invalid unless the content clearly indicates that the parties are aware of the consequences of the agreement. 

An arbitration agreement may also be included in the statute or the articles of association of a commercial company (as well as in similar documents regulating functioning of a cooperative or of an association) and it may apply to all disputes regarding the relationships within a company (cooperative, association). Until recently, such an arbitration agreement was binding only for the company and its shareholders. However, under the reform of Polish arbitration law effective as from 8 September 2019, an arbitration agreement included in the statute (articles of association) of a commercial company (cooperative, association) regarding disputes relating to the relationships within such company is binding also for the authorities of the company (such as the management board) and members of these authorities.  This issue is also connected with a recent extension of arbitrability to certain corporate disputes, mainly, disputes over validity of corporate resolutions (with respect to that – see question 8).

In disputes pertaining to the validity of corporate resolutions, an arbitration agreement included in the articles of association is effective only if an additional formal requirement is fulfilled. Such an arbitration agreement needs to include the obligation to publish information on the commencement of arbitration proceedings (in a way that the company makes its announcements – usually in an official gazette) within one month.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

8. Are any types of dispute non-arbitrable? If so, which?

Poland

Only disputes that could be heard by civil courts are arbitrable. Until recently, arbitrability was limited to those categories of disputes (i.e. both disputes relating to rights that have financial value, as well as disputes over rights of non-financial character, such as certain rights under intellectual property or copyright law) that could be subject to a court settlement, namely, disputes regarding rights the parties may freely dispose of. However, under the reform of Polish arbitration law effective as from 8 September 2019, this last requirement applies only to disputes over rights of non-financial character. With respect to disputes of financial character, the law expressly excludes from arbitrability only disputes involving support (spousal support, child support, etc.). Therefore, as from 8 September 2019, Polish law allows submitting to arbitration a very broad catalogue of disputes in matters regarding to rights of financial character.

This applies in particular to internal corporate disputes regarding validity of corporate resolutions, which under the new law, may be subject to arbitration under an arbitration agreement included in the statute or the articles of association of a commercial company (as well as a cooperative and an association). The effectiveness of such an arbitration agreement depends on the fulfilment of the formal requirement discussed above (see question 7). Furthermore, each shareholder may join the proceedings on the side of the claimant or the respondent within a specified deadline. The law also stipulates that the panel of arbitrators in proceedings regarding validity of a resolution that have been initiated at the earliest date (for instance – a dispute regarding setting aside of a resolution initiated by one shareholder) is competent to hear also all subsequent disputes regarding the same resolution, even if the sought remedy or the party commencing the proceedings are different (for instance –a dispute regarding declaration of invalidity initiated by another shareholder).

Despite the abovementioned changes in Polish arbitration law, it can still be argued that there are certain categories of disputes that lack arbitrability – in particular, when the public interest or interests of third parties are at stake. It is generally accepted that the following disputes lack arbitrability:

  • disputes over personal rights of individuals;
  • disputes over entries in public registers; and
  • certain non-monetary family matters.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

9. Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?

Poland

An arbitration agreement is generally binding only upon the parties. Exceptions extending the arbitration clause to third parties include assignment of the underlying contract, general succession and acquisition of an enterprise (with respect to disputes concerning liabilities connected with the operation of the enterprise). Moreover, an arbitration clause included in articles of association of a company extends to the company and any subsequent shareholder as well as to the authorities of the company and members of these authorities (the same rule applies also to an arbitration clause included in statutes of an association or a cooperative).

The arbitration law does not contain any provisions regarding a third-party joinder or notice, but it is generally accepted that it is allowed if both the parties and the third party consent. This could be addressed in the arbitration rules or the arbitration agreement. For example, under the Rules of the Court of Arbitration at the Polish Chamber of Commerce, upon application of a third party the arbitral tribunal may allow it to participate in arbitral proceedings, subject to the consent of the parties. 

Answer contributed by Maciej Łaszczuk and Justyna Szpara

10. Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?

Poland

Polish arbitration law does not address the ability of an arbitral tribunal to consolidate separate arbitral proceedings. It appears that consolidation may occur if the disputes are related, the arbitration clauses are compatible, and all parties consent.

Under the Rules of the Court of Arbitration at the Polish Chamber of Commerce, consolidation requires an order by the tribunal that should be made with due consideration of all relevant circumstances and the interests of the parties, particularly the need to ensure efficiency of the proceeding. If one party asks for consolidation, the following conditions must be met:

  • the composition of the tribunal in each of the proceedings is the same.
  • the parties’ claims in the proceedings subject to consolidation are based on the same arbitration agreement, or the claims are related, even if based on different arbitration agreements.

Furthermore, cases in which the parties are not identical may also be consolidated if the composition of the tribunal in each of the proceedings is the same, the condition concerning the claims is met, and the parties to all of the proceedings consent.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

11. Is the "group of companies doctrine" recognised in your jurisdiction?

Poland

The "group of companies" or similar doctrines are not recognised in Poland.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

12. Are arbitration clauses considered separable from the main contract?

Poland

The doctrine of separability is recognised by Polish arbitration law. Under article 1180(1) of CPC invalidity or expiration of the underlying agreement does not per se result in invalidity or expiration of the arbitration agreement.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

13. Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunals jurisdiction and competence?

Poland

The principle of competence-competence is recognised in Poland. Under article 1180(1) of CPC, an arbitral tribunal may rule on its own jurisdiction, including the existence, validity or effectiveness of the arbitration agreement.

The arbitral tribunal may rule on a plea of lack of jurisdiction in a separate decision or in the award on the merits. If the tribunal issues a separate decision upholding its jurisdiction, then either party may seek a ruling from the court within two weeks from service of the decision. Initiation of a proceeding before the court does not stay hearing of the case by the arbitral tribunal. The decision of the court is subject to interlocutory appeal.

If the tribunal rules that it lacks jurisdiction, there is no recourse to the courts available. Such decision is binding on the court, which in such case is not allowed to dismiss the claim based on assertion of the arbitration agreement.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

14. Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?

Poland

The arbitration agreement must identify the parties to the agreement as well as the subject of the dispute or the legal relationship from which a dispute has arisen or may arise. As in other jurisdictions, it is advisable to specify in the arbitration clause the number of arbitrators, the seat of arbitration, the language and the law governing the arbitration agreement. Currently, under Polish arbitration law, when the parties refer to an institutional arbitration, unless they decide otherwise the arbitration rules in force at the time of commencement of the arbitration (to be more specific – of filing of the statement of claim), are applicable. This rule was introduced only recently, in the most recent reform of Polish arbitration law, which entered into force on 8 September 2019 (before that, the date of entry into the arbitration agreement was decisive as to which arbitration rules of institutional arbitration court were applicable).

Also, the same reform of Polish arbitration law introduced a rule that if two or more entities bound by an arbitration agreement act on the side of the claimant or the respondent, the nomination of an arbitrator on their side has to be unanimous, unless agreed otherwise by the parties.

A specific feature of Polish arbitration law is an express regulation that an arbitration agreement violating the principle of party equality is ineffective (article 1161 §2 of CPC). Consequently, it is advisable to avoid the optional arbitration clauses as well as agreements providing for recourse to arbitration for one party only and recourse to state courts for another – if they are supposed to be governed by Polish law (see the Supreme Court judgment of 13 October 2017, I CSK 33/17).

When drafting an arbitration clause that is to be introduced in the statute or the articles of association of a company (association, cooperative) one must take into consideration specific issues discussed in answer to question 7 and 8 (arbitrability of certain corporate disputes).

Answer contributed by Maciej Łaszczuk and Justyna Szpara

15. Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?

Poland

Although no statistics are available, it seems that institutional international arbitration is generally more common than ad hoc. In ad hoc international arbitration, UNCITRAL Rules are frequently used.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

16. What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.

Poland

There is only one specific regulation regarding multi-party arbitration agreements and no published case law on this issue. As mentioned in answer to question 14, if two or more entities bound by an arbitration agreement act on the side of the claimant or the respondent, the default rule, which can be modified in the arbitration clause, is that the nomination of an arbitrator on their side has to be unanimous.

Other than the above, it is generally accepted that a multi-party arbitration agreement should generally assure equal treatment of the parties, in particular with respect to appointment of the arbitrators.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

Commencing the arbitration

17. How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?

Poland

Under the arbitration law, arbitration proceedings may be commenced by serving a request for arbitration on the respondent, designating the parties, the dispute, and the arbitration agreement, and also appointing an arbitrator if the party is entitled to do so. Unless otherwise agreed, the date of service is deemed to be the time of commencement of the arbitration.

The Rules of the Court of Arbitration at the Polish Chamber of Commerce provide for two alternative ways of initiating proceedings, either by filing a request for arbitration or a statement of claim with the Court of Arbitration.

The arbitration law does not provide for any special limitation periods. The statute of limitations in Poland is governed by substantive law. Under those rules, applicable when Polish substantive law applies, the statute of limitation is interrupted by any action before a state court or in arbitration that is aimed directly at pursuing, declaring, satisfying or securing a claim. Thus, in arbitration, effective service of the request for arbitration or statement of claim on the other party or the arbitration institution (as provided under the Rules of the Court of Arbitration at the Polish Chamber of Commerce), as the case may be, will interrupt the statute of limitation, but only if the arbitration tribunal is competent to hear the case. Consequently, a party commencing an arbitration must be aware of the risk that if it turns out that the arbitration tribunal does not have jurisdiction in the particular matter, the statute of limitation will not be deemed to have been interrupted but will continue to run until the case is brought to the state court.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

Choice of law

18. How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?

Poland

The arbitration law provides that the arbitral tribunal resolves the dispute under the law applicable to the underlying legal relation, leaving the method of determining the applicable law to the tribunal. Only when the arbitral tribunal is explicitly authorised by the parties, it may resolve the dispute in accordance with general principles of law or equity, although even in such case, it always has to take into consideration the content of the agreement and any settled customs relating to the underlying legal relation. Unlike the Model Law, Polish arbitration law does not expressly give priority to the choice of law made by the parties. However, it is generally recognised that the tribunal should always respect the parties’ choice of law, especially in light of article VII of the European Convention of 1961. The choice of law is deemed to refer to substantive law only, and not conflict of laws regulations. In the absence of the parties’ choice of law, the trend is that the tribunal determines the applicable law following Polish conflict of laws principles, although in international cases the tribunal may also apply other methods, without following any conflict of law rules (eg, in accordance with the principle of the closest connection). There is a mandatory rule regarding consumer disputes that obliges the tribunal to consider mandatory provisions of consumer law applicable to the given relationship, even if the parties explicitly authorise it to resolve the dispute in accordance with general principles of law or equity.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

Appointing the tribunal

19. Does the law of your jurisdiction place any limitations in respect of a partys choice of arbitrator?

Poland

Generally, any natural person with full legal capacity may act as an arbitrator. Judges may not act as arbitrators, however, unless they are retired. There are no nationality restrictions.

There is no common list of arbitrators. The recognised arbitration institutions maintain their own lists of arbitrators, but usually the list is not binding on the parties. Under the rules of the Court of Arbitration at the Polish Chamber of Commerce only the sole arbitrator or presiding arbitrator must be selected from the institution’s list. However, upon mutual application of the parties or the arbitrators, the Arbitral Council may consent to selection of a sole arbitrator or presiding arbitrator from outside the list, particularly if justified by the specific nature of the dispute or the qualifications of the arbitrator.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

20. Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?

Poland

Non-nationals can act as arbitrators with no restrictions. They are subject only to general immigration requirements, eg, there may be visa requirements for citizens of non-EU countries.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

21. How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?

Poland

Under the default rule, if a party fails to appoint an arbitrator within one month from receipt of the request from another party, or the appointed arbitrators fail to appoint a presiding arbitrator, or the parties fail to jointly appoint a sole arbitrator within one month, such arbitrator or arbitrators may be appointed by the court, upon the motion of any of the parties. The same applies if under the arbitration agreement the arbitrator or arbitrators should be appointed by a third party and the third party fails to do so in time.

If the court is to appoint the presiding arbitrator or sole arbitrator in international arbitration, it should take into consideration a need to appoint a person who is not connected with any of the jurisdictions of the parties.

Under the rules of the Court of Arbitration at the Polish Chamber of Commerce, it is the Arbitral Council of that institution, and not the court, that makes the appointment if a party fails to name an arbitrator or the arbitrators fail to agree on a presiding arbitrator. The appointment will be made from the institution’s list of arbitrators.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

22. Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?

Poland

There is no general regulation in Polish law concerning arbitrators’ immunity from a lawsuit. On the contrary, the arbitration law expressly provides that if an arbitrator resigns without a valid reason, he or she is liable for damage caused by resignation. On the other hand, however, the rules of the arbitration institutions usually provide for express waiver of liability for negligent breach of arbitrators’ duties.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

23. Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?

Poland

The arbitrator has a right to a fee and reimbursement of expenses, for which the parties are jointly and severally liable. If the arbitrator and the parties fail to agree on the fee or reimbursement of expenses, the arbitrator may demand that the court determine the fee, based on the amount of work performed and on the amount in dispute. The decision of the court is issued in an interlocutory proceeding and is subject to appeal. In ad hoc arbitrations the arbitrators may also demand an advance against fees and expenses, which is typically held in trust by the arbitrators – usually the presiding arbitrator.

Arbitral institutions, such as the Court of Arbitration at the Polish Chamber of Commerce, require the parties to pay fees and costs in advance to the institution, which later settles the fees and expenses of the arbitrators. The institution also provides fundholding services for ad hoc arbitrations.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

Challenges to arbitrators

24. On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?

Poland

The arbitration law provides three grounds for challenging an arbitrator: lack of impartiality, lack of independence, and lack of the qualifications agreed by the parties. The party that appointed the arbitrator may challenge the arbitrator only if the party became aware of the grounds for challenge after the appointment. Under the default procedure, the party seeking to challenge an arbitrator must notify all arbitrators and the opposing party of the grounds. If the arbitrator does not resign or is not removed by the parties within two weeks, a party may seek removal by the court. An order of the court denying a motion to challenge an arbitrator is subject to an interlocutory appeal.

The parties are free to agree on the procedure for challenging arbitrators. Usually the rules of the arbitration institution provide their own procedures for challenging arbitrators. For example, under the Rules of the Court of Arbitration at the Polish Chamber of Commerce, the Arbitral Council of that institution decides on the challenge. The rules or the parties’ agreement may not however waive the right to challenge the arbitrator in court.

Arbitration institutions deciding on challenges would generally take IBA Guidelines into account. The state courts would regard the IBA Guidelines as a general indication only.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

Interim relief

25. What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?

Poland

Interim measures are available from both the court and the arbitral tribunal.

The court may order any type of interim measure available under the law, at any time, before or after the arbitration proceeding is initiated. If a party requests an interim measure before the arbitration proceeding is initiated, however, the court will give the party no longer than two weeks to commence the proceeding, or the interim measure will lapse.

Unless otherwise agreed by the parties, the arbitral tribunal, upon motion of a party that has substantiated its claim, may order such interim measures as it deems proper. It may, however, make enforcement of the interim measure conditional upon security provided by the party requesting interim relief. There are no limitations under the law on the types of interim measures that may be ordered by the tribunal. There are certain limitations that arise in practice, however. An arbitral tribunal may not order interim measures that interfere with the activities of the courts or other state institutions (eg, a stay of judicial execution proceedings), which would be available from the court. Also, because the law does not govern the effect of interim measures ordered by a tribunal that are not enforceable by execution (such as injunctive relief), there is an area of legal dispute that makes it impracticable for the parties to seek interim relief of this type from the arbitration tribunal.

Anti-suit injunctions are not available under Polish law.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

26. Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?

Poland

The law does not allow the court to order a party to provide security for the costs of the arbitration. It has been argued that the tribunal may issue such an order as an interim measure. However, there are no published cases confirming this.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

Procedure

27. Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (eg, general duties of the tribunal and/or the parties)?

Poland

The Polish arbitration law provides certain mandatory provisions which the parties cannot contract around, including:

  • equal treatment of the parties;
  • the right to be heard and present a case;
  • notice to the parties of scheduled hearings;
  • service of all submissions on the other party;
  • failure to file a statement of defence may not result in discontinuance or be treated as an admission of the claimant’s allegations; and
  • waiver of the right to object (adopting Model Law article 4).

Answer contributed by Maciej Łaszczuk and Justyna Szpara

28. What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?

Poland

The arbitration law enables proceeding with the arbitration despite the respondent’s failure to participate. If the respondent fails to file a statement of defence, the arbitral tribunal shall continue the proceeding, but such failure shall not be deemed admission of the facts alleged in the statement of claim.

If a party fails to appear at a hearing or produce documents that the party was ordered to produce, the arbitral tribunal may continue the proceeding and issue an award on the basis of the evidence collected, unless the default is sufficiently excused.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

29. What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Arbitration generally be taken into account?

Poland

The tribunal has broad discretion on evidentiary matters. Relevant evidence may be admitted in any form (eg, witnesses, documents, expert witnesses, etc). Nevertheless, the arbitral tribunal is not empowered to use any coercive measures to obtain evidence. Written witness statements are becoming more frequently used. Unless the parties agree otherwise, the arbitral tribunal may appoint experts, or the parties may prefer to rely on reports of party-appointed experts.

The parties may enter into an agreement concerning evidence. Thus, if the parties require or at least do not object, the tribunal may apply IBA Rules on the Taking of Evidence in International Commercial Arbitration or use the IBA Rules as a guidance.

As the Prague Rules raised many objections in the Polish arbitration community, they are not expected to replace the IBA Rules in arbitral practice..

Answer contributed by Maciej Łaszczuk and Justyna Szpara

30. Will the courts in your jurisdiction play any role in the obtaining of evidence?

Poland

The arbitral tribunal may apply to the court to take evidence or perform other actions that the arbitral tribunal is unable to perform. The parties and the arbitrators may participate in the evidentiary proceeding before the court.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

31. What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?

Poland

There are no provisions in the arbitration law dealing with document production. A discovery procedure is not used in Poland, either. At the request of a party, the tribunal may order the production of a specified document, but if the party refuses, it may in specific circumstances only draw negative inferences against the party refusing to comply with the order. If a document is held by a third party, the tribunal may, upon a motion of a party, ask the court to order the third party to produce the document.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

32. Is it mandatory to have a final hearing on the merits?

Poland

Generally, it is not mandatory to have a final hearing on the merits. Initially the parties decide whether a hearing is to be held. If they do not agree, the tribunal decides whether to hold a hearing, but it is obliged to schedule a hearing upon request of any of the parties.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

33. If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?

Poland

The arbitration law allows for hearings and procedural meetings to be conducted in the place the arbitral tribunal considers appropriate, unless the parties specifically agree on the venue for hearings or meetings.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

Award

34. Can the tribunal decide by majority?

Poland

A majority decision is permitted and sufficient, unless the parties specifically agreed that a unanimous decision must be reached.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

35. Are there any particular types of remedies or relief that an arbitral tribunal may not grant?

Poland

The arbitral tribunal is free to grant any kind of remedy or relief available under substantive law, provided it does not violate public policy. For example, it is generally believed that punitive damages are contrary to Polish public policy.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

36. Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?

Poland

Polish law permits dissenting options. A dissenting arbitrator may indicate the dissent in the award. It must be signed and requires a justification. Dissenting opinions are relatively uncommon in practice.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

37. What, if any, are the legal and formal requirements for a valid and enforceable award?

Poland

The arbitration award must be in writing and signed by all arbitrators. If there are three or more arbitrators, it is sufficient if a majority sign the award, indicating why the rest did not. The award must name the parties and arbitrators, the arbitration agreement or other grounds for jurisdiction, the date and place the award is issued, and the reasons for the decision.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

38. What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?

Poland

Polish law does not provide any time limits for issuance of an award. The parties may, also by reference to the arbitration rules, agree on a deadline for issuing the award. The rules of the Court of Arbitration at the Polish Chamber of Commerce provide that an award should be issued within nine months after commencement of the proceeding and no later than 30 days after closing of the hearing. The secretary general of the Court may, at his own initiative or at the request of the presiding arbitrator, extend the deadline by a specified period if necessary due to the complexity of the issues to be resolved or other circumstances of the case. Failure to meet the deadline does not in itself invalidate an award.

There is two-week period from service of the award for requesting correction or interpretation of the award. If the request is justified, the tribunal shall make the correction or interpretation within two weeks. Within one month of service of the award, either party may request supplementation of the award if the tribunal did not resolve all of the claims. The tribunal then has two months to issue a supplementary award.

Within one month from the date of the award, the tribunal may correct the award ex officio.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

Costs and interest

39. Are parties able to recover fees paid and costs incurred? Does the "loser pays" rule generally apply in your jurisdiction?

Poland

Polish law does not provide rules on cost allocation or recovery. In practice, the “loser pays” rule is typically applied (see the Rules of the Court of Arbitration at the Polish Chamber of Commerce). Generally, the Court of Arbitration at the Polish Chamber of Commerce will order the losing party to reimburse the winning party with any costs incurred in connection with the proceedings, including court fees and attorneys’ fees. No strict limits are applied, but the costs whose reimbursement is sought have to be justified.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

40. Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?

Poland

An arbitral tribunal may only award interest if allowed by the substantive law applicable to the dispute. Under Polish substantive law, there are statutory interest rates that apply unless the parties agreed on a different rate, provided that such agreed rate does not exceed the current statutory maximum interest rate.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

Challenging awards

41. Are there any grounds on which an award may be appealed before the courts of your jurisdiction?

Poland

Polish arbitration law does not provide for an appeal as such from an arbitration award to a court. The parties may agree, however, that the proceeding before the arbitral tribunal includes more than one instance. In the judgment of Polish Supreme Court judgment dated 20 March 2015 (Case No. II CSK 352/14), the Polish Supreme Court held that if the parties agreed that the proceeding before the arbitral tribunal is to include more than one instance (Civil Procedure Code article 1205 §2), then all the rules of arbitration proceedings apply equally to the appellate arbitration proceedings. 

Answer contributed by Maciej Łaszczuk and Justyna Szpara

42. Are there any other bases on which an award may be challenged, and if so what?

Poland

Under article 1205 of CPC, an award may only be challenged in a proceeding to set aside the award, which may be instituted in court by a party or its legal successor. Only an award issued in Poland may be subject to a proceeding to set aside the award before Polish courts. The motion must be filed within two months from service of the award or, if a party requested supplementation, correction or interpretation of the award, within two months from service of the tribunal’s decision on such request.

Grounds for setting aside an award are as provided in the Model Law, with two additional grounds:

  • the award was obtained by means of a crime or on the basis of a forged document; and
  • a final and binding judgment was already issued in the same case between the same parties.

The period for asserting these additional grounds runs from the date the party learned of such grounds, up to five years from service of the award. The grounds that the dispute is not legally arbitrable or that the award is contrary to public policy may be raised by the court on its own motion.

Furthermore, an award rendered in a consumer dispute can be set aside on the ground that it:

deprives the consumer of the protection granted under mandatory provisions of law applicable to the contract concluded with the consumer, and if the law governing such contract is the law chosen by the parties, of the protection granted to the consumer under mandatory provisions of the law that would have been applicable if the governing law had not been chosen.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

43. Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?

Poland

The parties may not contractually exclude the right to file an action to set aside an award, or exclude or limit any of the statutory grounds for setting aside an award.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

Enforcement in your jurisdiction

44. Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?

Poland

A Polish court would generally refuse to recognise an award that has been set aside by the court at the place of arbitration. There are no reported cases recognising awards set aside at the place of arbitration by a legally final judgment. However, the law could allow for recognition of an award set aside at the place of arbitration in the (very rare) cases where article IX of the European Convention of 1961 would apply.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

45. What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?

Poland

In the decision of 28 November 2018 (III CSK 406/16), the Polish Supreme Court confirmed that the choice of remedies doctrine does not offend the principle of good faith under the New York Convention. This means that a respondent who objected to the jurisdiction of an arbitral tribunal in arbitration proceedings can rely on this objection in the enforcement proceeding even though it has not challenged the arbitral award before the courts of the seat.

Moreover, the Supreme Court specifically stated that under the New York Convention the requirement of written form for an arbitration agreement excludes the possibility to conclude such an agreement tacitly or by implication. 

The Supreme Court also pointed out the effectiveness requirements for an arbitration agreement concluded by reference to general conditions of contract (GCC) containing an arbitration clause. It is not required that the main contract expressly mention the arbitration clause contained in the GCC. A reference to the GCC as such, without expressly mentioning that they contain an arbitration clause, should be regarded as sufficient. But the reference must clearly identify the document containing the arbitration clause. In either of these instances, to find that the provisions of a form become an integral part of the agreement, either the text of the GCC needs to be annexed to the contract signed by the parties (article II(1) of the New York Convention), or it needs to be sent to the other party, along with a return confirmation of conclusion of the agreement containing a reference to the GCC (article II(2) of the New York Convention). It is essential that within such correspondence a declaration of will be made to conclude an arbitration agreement corresponding to the wording of the supplied GCC.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

46. To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?

Poland

The issue of foreign states’ immunity is not regulated by the Polish law, but it is regarded as a matter of public international law. In Poland a foreign state’s immunity from execution is recognised as a possible defence against enforcement. The Polish courts would allow enforcement if immunity were waived by the state. Immunity pertains only to property designated for exercise of public authority. It is a matter under dispute, not yet determined by Polish courts, whether entry into an arbitration agreement suffices to be deemed a waiver by a foreign state of its immunity from execution.

Enforcement against the Polish state, or state entities, is limited to the bank accounts of the relevant entity (organ) to which the claim pertained.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

Further considerations

47. To what extent are arbitral proceedings in your jurisdiction confidential?

Poland

There is no express provision in Polish law for confidentiality of arbitral proceedings. The Rules of the Court of Arbitration at the Polish Chamber of Commerce provide that proceedings before the arbitral tribunal are confidential. Arbitrators and employees and representatives of the court are required to keep confidential all information concerning the proceeding, unless the parties agree otherwise. Hearings are closed to the public. Only parties and their attorneys, as well as persons requested by the tribunal (such as witnesses or experts), may be present during hearings. However, upon consent of both parties, the tribunal may permit third parties to attend the hearing. Awards are also confidential. Nonetheless, the Arbitral Council may decide to publish a ruling (redacted to assure the anonymity of the parties), but only if neither party objects to publication within 14 days of service of the ruling.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

48. What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?

Poland

There is no rule excluding reliance on evidence produced in arbitration in another court or arbitral proceeding, and generally it would not be treated as inadmissible. However, if the parties agreed that the arbitration will be confidential, or referred to arbitration rules that provide for confidentiality (such as the Rules of the Court of Arbitration at the Polish Chamber of Commerce), the party disclosing the submission or evidence in another proceedings may face liability.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

49. What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?

Poland

Counsel and arbitrators are bound by the ethical rules or standards of their respective professions. The Court of Arbitration at the Polish Chamber of Commerce has established an Arbitrator’s Code of Ethics for arbitrators in proceedings at that institution. The Polish Arbitration Association has also adopted the Arbitrator’s Code of Ethics.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

50. Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?

Poland

Polish arbitration practice endorses the parties’ autonomy and flexibility. However, traditionally arbitration proceedings are based largely on written submissions supported by exhibits, as well as oral witness statements. Party officers may testify. Full-blown US-style discovery is not in use.

Answer contributed by Maciej Łaszczuk and Justyna Szpara

51. Is third-party funding permitted in your jurisdiction? If so, are there any rules governing its use?

Poland

Neither the Polish arbitration law nor the arbitration rules of domestic arbitral institutions provide any rules on third-party funding, and this question has not yet been considered by Polish courts. However, third-party funding is believed to be permissible so long as it does not compromise the integrity of the arbitration proceedings, for example in terms of the arbitrators’ impartiality and independence.  

Answer contributed by Maciej Łaszczuk and Justyna Szpara

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