A. LEGISLATION AND RULES
A.1 Legislation
Arbitration proceedings in Poland continue to be governed by the laws embodied in the Polish Civil Procedure Code. These laws are based on UNCITRAL Model Law[1]. In 2020, no amendments to these laws were made.
A.2 Institutions, rules and infrastructure
One of the two main institutions administering arbitration proceedings in Poland is the Court of Arbitration at the Polish Chamber of Commerce (SAKIG). This institution provides facilities as well as rules of arbitration.
On 8 November 2021, SAKIG adopted supplementary rules concerning corporate disputes, which came into force on 1 January 2022. These rules are a result of an amendment of the Polish Civil Procedure Code introduced on 8 September 2019, which settled the controversial issue of the arbitrability of corporate disputes under Polish law. Before the 2019 amendment, only settleable disputes were arbitrable. After the amendment, all property disputes, except for alimony cases, became arbitrable. Thus, it is now indisputably possible to arbitrate disputes relating to the annulment or invalidity of resolutions of shareholders of capital companies. Additionally, since 2019, the Civil Procedure Code has explicitly regulated corporate disputes including arbitration clauses in companies’ articles of association, the nomination of the arbitrators and the obligation to announce the commencement of proceedings in the manner required for announcements to the company.
The 2021 SAKIG supplementary rules are the aftermath of the abovementioned amendment. They comprehensively regulate crucial aspects of arbitration proceedings dealing with corporate disputes. The supplementary rules govern the commencement of arbitration, the joinder of shareholders to proceedings, the appointment of arbitrators, the electronic delivery of pleadings, as well as the effect of an arbitral award and the costs of proceedings.
According to the supplementary rules, shareholders may join proceedings initiated to resolve a corporate dispute as “Participants”. A joinder of shareholders may occur within one month of the date of the notice of initiation of the proceedings. Additionally, the joinder does not require the consent of any of the parties to the dispute. The supplementary rules regulate one of the most troublesome issues occurring in arbitration with multiple participants, namely the nomination of arbitrators. If a shareholder joins an arbitration in support of one of the parties, the nomination of an arbitrator must be made unanimously by that party and the Participant. The arbitration clause may, however, stipulate otherwise. If a shareholder joins the arbitration after the lapse of the one-month time limit, when the joined party has already appointed an arbitrator, it is presumed that the Participant agrees to that appointment. Nonetheless, this does not preclude such Participant from filing a request for the exclusion of an arbitrator under general rules.
Additionally, according to the supplementary rules, if there is more than one arbitration initiated with regard to the same matter (resolution), all the proceedings must be consolidated. The arbitral tribunal appointed in the first dispute shall hear all subsequent disputes regarding the same issue. This solution is aimed at preventing arbitral tribunals from issuing conflicting awards in the same matter.
B. CASES
B.1 Exceptional character of the public policy clause as a prerequisite for setting aside an arbitration award[2]
The case concerned an application to set an arbitral award aside. The applicant relied on the plea that the party was deprived of the opportunity to defend itself because the arbitral tribunal did not accept some of the party’s requests for evidence. Additionally, the applicant argued that the arbitral tribunal adopted a completely unfounded and arbitrary interpretation of the applicant’s withdrawal statement of 27 June 2014. The Appellate Court dismissed the application to set the award aside. As a result, the applicant filed a cassation appeal with the Supreme Court.
In the cassation appeal, the applicant indicated that the Court of Appeal had violated substantive provisions of law by misapplying them and failing to take into account the fact that when issuing the Arbitration Court’s award, the applicant’s rights of defense were violated and the basic rules of procedure before the Arbitration Court were not complied with. The applicant also raised the fact that the Court of Appeal failed to address in the grounds of its judgment the substance of the pleas in law raised in the appeal and by confining the grounds to statements of a general nature and in part by responding to pleas not raised in the appeal.
The Supreme Court did not allow the cassation appeal. It confirmed the established jurisprudence that in the course of proceedings initiated by an action for setting aside an arbitration award, it is not the role of the common court to examine whether the arbitration award is consistent with the substantive law applicable to the case. The task of the court is only to examine whether there are any statutory grounds for setting aside the award. When reviewing an action for setting aside an arbitration award, a state court should examine only the circumstances outlined in article 1206 section 1 of the Code of Civil Procedure, if invoked by the appellant, and ex officio the circumstances outlined in article 1206 section 2. The Supreme Court emphasized that an arbitration award may be set aside under the public policy clause where the violation of the substantive law by the arbitration court leads to consequences that are irreconcilable with the basic principles of the Polish legal order, i.e., to consequences that are manifestly and flagrantly inconsistent with those principles – even if this only applies to one of them. The public policy clause is the only basis for setting aside an arbitration award that allows a state court to review the merits of the arbitration award. However, on this basis, a review of the elements comprising an arbitration award may not assume the proportions inherent in a substantive review of such an award. The prohibition of a substantive review of such an award is related to the essence of the application of the public policy clause.
The views of the Supreme Court with regard to the scope of the case present arbitration users with a clear basis for reliance on the public policy clause. Thus, a cassation appeal may be based on a plea alleging a violation of article 1206 section 2(2) of the Code of Civil Procedure only if the state court’s assessment of the effect of the arbitration award in relation to the fundamental principles of the legal order of the Republic of Poland is grossly and obviously erroneous. Otherwise, the Supreme Court hearing the cassation appeal would have to assess the merits and reasoning of the arbitration award, which is inadmissible.
B.2 Improper representation of a company might lead to a violation of the composition of the tribunal and the award being set aside[3]
The case concerns a Polish limited liability company (S), whose board members were dismissed during a meeting held in 2015. E.A. was among the dismissed members of the board. They were also a member of the board of one of the company’s shareholders – an Italian company (V). V did not participate in the shareholders’ meeting, questioning the correctness of the convening of the meeting as well as how it was conducted. V filed a lawsuit demanding that the resolutions adopted during that meeting be declared invalid or, alternatively, annulled. The regional court granted V an injunction by suspending the execution of the resolutions. At the same time as filing the lawsuit in a state court, V filed a request for arbitration.
In the course of the court proceedings S – the defendant – raised an objection as to the court’s jurisdiction by invoking the arbitration clause contained in S’ articles of association. The court, however, declined the arbitral tribunal’s jurisdiction, stating that the parties could not settle the matter by themselves and thus the prerequisite for the dispute’s arbitrability was lacking (settleability was a condition for arbitrability under Polish law). The claimant’s complaint was dismissed and the court’s ruling regarding arbitration became final and binding.
After that, another shareholders’ meeting of S was held. The shareholders adopted several resolutions that were largely identical to the resolutions adopted previously. Thus, V extended its claims so that they covered the newly adopted resolutions, requesting that the court declare their invalidity too. A further injunction suspending the execution of the new resolutions was granted. The court proceedings have been suspended.
In the arbitration commenced simultaneously with the court proceedings, the parties – V and S appointed the arbitrators. The appointment on behalf of S was made by E.A. – one of the dismissed board members of S. The nominated arbitrators chose the presiding arbitrator. S questioned the appointment made by E.A. on behalf of S, as well as the appointment of the presiding arbitrator, and subsequently refused to participate in the arbitration. S claimed that in fact, V had nominated the majority of the arbitral tribunal. The arbitral tribunal found that its composition was in accordance with Polish law. The presiding arbitrator disagreed with the other arbitrators and resigned. They concurred with S, acknowledging that it had in fact been deprived of the right to appoint an arbitrator and that the composition of the arbitral tribunal was contrary to one of the most important rules of arbitration – the parties’ equality. A new presiding arbitrator was nominated. The award issued by the arbitral tribunal declared the resolutions invalid.
Eventually, the award was set aside by the appellate court. The court underlined that, although due to the granted injunctions, E.A. had not yet ceased to be a board member of S at that time, the appointment of the arbitrator made by him on behalf of S was improper due to a conflict of interests. Thus, the appellate court agreed with S that the basis for setting the award aside was the failure to comply with the requirements as to the composition of the arbitral tribunal. The court further found that the procedural public policy of Poland had also been violated. The composition of the arbitral tribunal, which does not ensure the parties’ equality, but, on the contrary, shows that one of the parties de facto appointed two arbitrators, and thus had an indirect influence on the selection of the presiding arbitrator, conflicts with the principle of the right to a fair trial. The appellate court also stated that the dispute was not arbitrable.
V filed a cassation appeal, which was dismissed by the Supreme Court. According to the Supreme Court, the representation of S with regard to the appointment of the arbitrator was improper. Thus, the constitution of the tribunal was confirmed to have been faulty and the requirements of the composition of an arbitral tribunal not to have been fulfilled. The existing conflict of interests required representation of the company by a third party – a proxy or a curator. Having found so, the Supreme Court did not assess the arbitrability of the dispute as such, even though in light of the recent legislative changes the statement of the appellate court in this regard was clearly incorrect.
B.3 Admissibility of accumulation of claims covered by different arbitration clauses in one arbitration proceeding[4]
The case at hand concerned the initiation of one arbitration proceeding under two separate arbitration clauses providing for a different selection of arbitrators, with the clauses included in the contracts entered into by partially different parties.
Pursuant to clause 10.7 of the Investment Agreement, (i) the Owners, i.e., B sp. z o.o. and C sp. z o.o., and (ii) A S.A. are entitled to select one arbitrator. On the other hand, pursuant to clause 6.4 of the final agreement, only B sp. z o.o. and A S.A are entitled to appoint one arbitrator. For this reason, the respondents objected to the lack of jurisdiction of the arbitral tribunal.
The arbitral tribunal decided that it had no jurisdiction in the case. The arbitral tribunal noted that Polish law does not regulate the issue of admissibility of a claim based on two (or more) arbitration clauses in a single arbitration claim. The Rules of the Court of Arbitration at the Polish Chamber of Commerce do not explicitly regulate the issue of admissibility of an accumulation of claims covered by various arbitration clauses in one arbitration claim either. In the opinion of the arbitral tribunal, it could therefore be concluded that since it is permissible to merge proceedings already pending under the Rules of the Court of Arbitration at the Polish Chamber of Commerce, even if they are pending under different arbitration clauses, it seems all the more permissible to institute a single proceeding with respect to claims covered by different arbitration clauses. The arbitral tribunal considers that the consolidation of claims in a single statement of claim (and proceeding) is permissible under the Rules of the Court of Arbitration at the Polish Chamber of Commerce as long as none of the arbitration provisions are contradicted and the claims included in the consolidation remain related. Further, if the parties to the notices are not identical, the consent of all parties is a necessary condition for consolidation to be admissible.
From a practical point of view, arbitration users considering the accumulation of claims in one arbitration proceeding should be aware of the conditions that must be met beforehand. The good news, however, is that an accumulation of claims is allowed under the Rules of the Court of Arbitration at the PCC, opening the door to more efficient proceedings, lower costs and a smaller risk of conflicting rulings.
[1] The UNCITRAL Model Law before the 2006 amendments.
[2] Judgment of the Supreme Court of 15 June 2021, case file no. V CSKP 39/21.
[3] Judgment of the Supreme Court of 17 June 2021, case file no. V CSKP 30/21.
[4] Arbitration award issued in Warsaw on 5 July 2021, published in Bulletin No. 28 of the Court of Arbitration at the Polish Chamber of Commerce
