IBA SUBCOMMITTEE ON RECOGNITION AND ENFORCEMENT OF ARBITAL AWARDS

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Jasmin Gregory
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1 IBA SUBCOMMITTEE ON RECOGNITION AND ENFORCEMENT OF ARBITAL AWARDS 2016 Research Project: Comparative Study of Arbitrability under the New York Convention Questionnaire for the Country Reporters GESSEL ATTORNEYS AT LAW. Poland How do courts in your jurisdiction define the notion of arbitrability when applying the New York Convention? (a) Do they make a distinction in defining the notion for the purposes of Article II (1) of the New York Convention ( a subject matter capable of settlement by arbitration ), of Article II (3) (... unless it finds that the said agreement null and void, inoperative or incapable of being performed ) and of Article V (2) (a) ( The subject matter of the difference is not capable of settlement by arbitration under the law of that country )? The very few judgments available in a public domain concern only the appropriateness of the form of the arbitration clause as a prerequisite of its validity or effectiveness. In this respect no distinction in applying Article II (1), Article II (2) or Article V (2) (a) is noticeable. The accessible cases do not refer to the substantive scope of the notion of the arbitrability. (b) Do they make a distinction between subjective arbitrability (capacity of a person to be party to an arbitration) and objective arbitrability (capacity of a subject matter to be resolved by arbitration)? The only noticeable distinction is made in respect of the applicable law (please also see item 3 (b) below). 2. Do the courts in your jurisdiction consider that arbitrability is a condition of validity of the arbitration agreement, or rather a requirement for the jurisdiction of the arbitral tribunal? According to the Polish doctrine, the notion of arbitrability refers to disputes which might be submitted to the arbitration. Thus, the arbitrability is rather a requirement for the jurisdiction of the arbitral tribunal. However, as the Polish Code of Civil Procedure (the PCCP ) determines what kind of disputes might be submitted to the arbitration as well as indicates formal requirements for the arbitration agreement, the arbitration agreement that includes non-arbitrable disputes or is not concluded in a required form might be declared invalid as contrary to law.

2 It is worth noting that according to the Polish Supreme Court, the parties might submit to the arbitration a dispute concerning non-existence or invalidity of an arbitration agreement (the resolution of the Polish Supreme Court of 23 September 2010, case no. III CZP 57/10; the the Polish Supreme Court of 18 June 2010, case no. V CSK 434/09; the decision of the Polish Supreme Court of 21 May 2010, case no. II CSK 670/09). 3. Applicable law (a) Which law do the courts in your jurisdiction apply to assess the arbitrability or non-arbitrability of a dispute at the stage of recognizing and enforcing the arbitration agreement and referring (or not) the dispute to arbitration (Article II NY Convention)? The lex fori (law of the deciding court)? The law of the place of arbitration? The lex contractus? Another law? There is only few judgements of the Polish courts that concerns the arbitrability of a dispute in respect of the NY Convention in a public domain. Those few judgments seem to justify an assumption that when assessing the arbitrability of the dispute in respect of the validity of the arbitration clause, the Polish courts apply the contractual law in first place (the the Polish Supreme Court dated 18 January 2007, case no. I CSK 330/06; the the Polish Supreme Court dated 22 February 2007, case no. IV CSK 200/06; the the Court of Appeal in Katowice dated 17 May 2013, case no I ACz 279/13). As regards the capacity of the parties to the arbitration clause the law applicable to them shall apply (the the Court of Appeal in Katowice dated 17 May 2013, case no I ACz 279/13). It is interesting to note, that in case IV CSK 200/06 the court assumed that the US law applicable to the main agreement is also applicable to the arbitration agreement. Nevertheless it found, that it cannot refer the dispute in question cannot be referred to the arbitration, as it were in violation of consumer protection European norms ( see more below). (b) Is there a difference of approach when assessing subjective and objective arbitrability? Basing on the abovementioned judgements, different law shall apply to assessment of the validity of the arbitration clause (i.e. contractual law) and the capacity of the parties to the arbitration clause (i.e. law applicable to each party). 4. Substantive content of arbitrability/non-arbitrability (a) In your jurisdiction, does statutory or case law set a general standard for assessing whether a dispute is arbitrable or not? The PCCP sets a general standard for assessing whether a dispute is arbitrable or not. According to Article 1157 of the PCCP: Unless otherwise provided by a specific provision, the parties may submit to arbitration disputes regarding property rights and non-property rights that may be subject to a court settlement, excluding alimony cases.

3 According to Article 1163 of the PCCP: 1. An arbitration clause included in the articles of association (statute) of a commercial company concerning disputes arising out of the corporate relationship shall be binding upon the company and its shareholders. 2. Paragraph 1 applies accordingly to arbitration agreements included in the statute of a cooperative or an association. According to Article 1164 of the PCCP: An arbitration clause including labour law disputes may be made only after a dispute arose and shall be in writing. Article shall not apply. According to Article of the Polish Civil Code (the PCC ): 1. Provisions of a contract concluded with a consumer, which have not been individually agreed with him, shall not be binding thereupon, if his rights and obligations are set forth in a way that is contrary to good practice, grossly violating his interests (wrongful contractual provisions). According to Article item 23 of the PCC: In the case of doubt, the wrongful contractual provisions shall be those, in particular, which: ( ) 23) exclude the jurisdiction of Polish courts or which refer the case to a Polish or foreign arbitration tribunal or another authority, or which require that the case be heard by a court which, according to the law, has no local jurisdiction. (b) If there is a statutory source for arbitrability in your jurisdiction, please indicate it below (if not, indicate non-applicable ): According to Article 1157 of the PCCP (please see above), disputes are arbitrable if may be subject to a court settlement. It is worth noting that there is a controversy in the Polish doctrine whether the requirement for arbitrability, provided by Article 1157 of the PCCP, i.e. that a dispute may be subject to a court settlement, concerns both property and non-property rights disputes or only disputes regarding non-property rights. However, as the Polish Supreme Court decided in its resolution dated 7 May 2009, case no. III CZP 13/09, Article 1157 of the PCCP sets limits for arbitrability of a dispute and provides that the principal criterion of arbitrability in both property right cases as well as and nonproperty rights cases is capacity to be subject to a court settlement.

4 (c) Which disputes are held to be non-arbitrable under the statutory or case law of your jurisdiction? According to the PCCP, the following disputes are non-arbitrable: disputes that may not be subject to a court settlement (Article 1157 of the PCCP; the resolution of the Polish Supreme Court dated 7 May 2009, case no. III CZP 13/09); disputes that concern alimony cases (Article 1157 of the PCCP); disputes that include labour law and an arbitration clause had been made before a dispute arose and/or is not in writing (Article 1164 of the PCCP). It is worth noting that there is a controversy in the Polish doctrine whether corporate disputes, in particular disputes regarding validity of resolution of companies bodies, are arbitrable or not. The controversy arose on the basis of Article 1163 of the PCCP, according to which an arbitration clause included in the articles of association (statute) of a commercial company concerning disputes arising out of the corporate relationship shall be binding upon the company and its shareholders. The doctrine is not unanimous whether Article 1163 of the PCCP is or not a specific provision in relation to Article 1157 of the PCCP, i.e. if the arbitrability of corporate disputes depend on their capacity to be subject to a court settlement. However, the Polish Supreme Court decided in the aforementioned award resolution dated 7 May 2009, case no. III CZP 13/09, that Article 1163 of the PCCP is not a specific provision in relation to Article 1157 of the PCCP, hence the arbitrability of corporate disputes depend on their capacity to be subject to a court settlement. 5. Table of cases Please append to the report a table of cases where arbitrability was addressed in the specific context of the New York Convention, based on the following template: Case designation Court of Appeal in Katowice (Sąd Apelacyjny w Katowicach), 17 May 2013, case no. I ACz 279/13 NY Convention Provision (II.1; II.3; V.2.a) V 1 a Summary of ground for objecting to arbitrability of the dispute The Court of Appel rejected the motion for recognition of the arbitral award due to the invalid arbitration clause which was concluded in violation of representation of the Polish partnership company (that was a party to the arbitration proceedings). The Court of Appeal decided that due to the fact the arbitration clause did not indicate the governing law, Article V (1) (a) of the NY Convention shall apply. Thus, as provided by Article V (1) (a) of the NY Convention, capacity of the parties to the arbitration clause is Arbitrability objection admitted X Arbitrability objection rejected

5 governed by the law applicable to them. Polish Supreme Court (Sąd Najwyższy), 22 February 2007, case no. IV CSK 200/06 II 1 II 2 II 3 The dispute concerned the effectiveness of the arbitration agreement concluded between a Polish customer and an American professional by an online acceptance of the contract published on the Internet website. In first place, the Court concluded that the Parties chose the American law for both the main contract and the arbitration agreement; thus the arbitration agreement shall be govern by the American law. The court declared that arbitration clause constituted a prohibited clause under the European law due to the fact it caused a significant disproportion of right and obligation between the parties to a customer s disadvantage. In the Court s opinion, the above disproportion constituted an exception provided by Article II (3) of the NY Convention that allows a domestic court to reject a request for referring parties to arbitration in case the agreement is null and void, inoperative or incapable of being performed. In addition, the Court declared that the arbitration agreement concluded in that case did not comply with requirements regarding written form provided by Article II (1) and (2) of the NY Convention. X Polish Supreme Court (Sąd Najwyższy), 18 January 2007, case no. I CSK 330/06 V 1 a The dispute concerned a circle of parties to the proceedings regarding recognition of an arbitral award. Due to the procedural errors of the proceedings in lower instances the Supreme Court did not decide on the merits of the case. However, the Supreme Court instructed the lower courts in respect of determination of validity of an arbitration clause. The Supreme Court stated that when determining the law governing an arbitration clause, and in particular its validity, Article V (1) (a) of the NY Convention has to be considered. However, the Supreme Court did not decided which particular law should have applied in this case. n/a n/a

IBA SUBCOMMITTEE ON RECOGNITION AND ENFORCEMENT OF ARBITAL AWARDS

IBA SUBCOMMITTEE ON RECOGNITION AND ENFORCEMENT OF ARBITAL AWARDS 2016 Research Project: Comparative Study of Arbitrability under the New York Convention Questionnaire for the Country Reporters The grounds