Arbitration in Poland Practical issues Monika Hartung Legal Adviser, Partner Warsaw 16 June 2011

2 Arbitrability Ability to submit a specific matter for resolution by an arbitration tribunal, which can issue a valid and enforceable award.

3 UNCITRAL Model Law Article 1. Scope of application (1) This Law applies to international commercial arbitration, subject to any agreement in force between a State and any other State or States. (…) (5) This Law shall not affect any other law of this State by virtue of which certain disputes cannot be submitted to arbitration or may be submitted to arbitration only according to provisions other than those of this Law.

4 Art of the Polish CPC Unless a specific provision provides otherwise, parties may submit disputes to arbitration concerning property or non-property matters that can be the subject of a court settlement except for maintenance cases.

5 Which cases under Polish law are excluded from arbitration?  cases excluded from being adjudication by an arbitration tribunal under law  cases where the ability to conclude a settlement is excluded by law  cases where conclusion of a settlement is not allowed due to the parties’ inability to freely dispose of their rights in contested legal relationships  cases that cannot be tried before courts

6 Arbitrable non-property matters  transfer of intellectual and industrial property rights  copyrights  know-how  patents  publishing agreements  agreements concerning the creation of a work

7 Conclusions  Broad extent to which disputes can be resolved by an arbitration court, not many exclusions  Doubts about the interpretation of dispute settlement capacity – must be assessed in each case  State court takes lack of arbitrability into account ex officio

8 Competence–competence principle The competence–competence principle is the right of an arbitration tribunal to decide on its own jurisdiction. The arbitration tribunal examines whether an arbitration clause:  was concluded  is valid and effective  has not lost force

9 Regulations - examples  Regulations of the arbitration tribunal at the Polish Confederation of Private Employers Lewiatan in Warsaw  The arbitral tribunal shall be exclusively competent to decide on the jurisdiction of the Arbitration Tribunal as well as on the existence, validity or scope of an arbitration clause  Regulations of the arbitration tribunal at the National Chamber of Commerce in Warsaw  The Arbitral Tribunal alone shall resolve issues involving the jurisdiction of a court as well as the existence, validity (effectiveness) and scope of an arbitration agreement (arbitration clause)

10 Art §1 of the Polish CPC An arbitration tribunal can rule on its own jurisdiction, as well as on the existence, validity or effectiveness of an arbitration clause. Invalidity or expiry of a basic contract that includes an arbitration clause does not in itself signify invalidity or expiry of the clause.

11 Charge of lack of jurisdiction  A charge of lack of arbitration tribunal jurisdiction is limited in time; it can be raised no later than  in a reply to a statement of claims  by another deadline set by the parties.  An arbitration tribunal can review a charge raised after a deadline if it finds such delay to be justified.

12 Interaction between a state court and an arbitration tribunal (1/2)  If a charge of no state court jurisdiction is raised on the basis of an arbitration clause, a state court is entitled:  to reject a statement of claims  to dismiss an allegation of no arbitration tribunal jurisdiction A state court’s decision is binding upon an arbitration tribunal.  If a charge of no arbitration tribunal jurisdiction is raised, an arbitration tribunal is entitled:  to refuse to accept cases for re-examination  to dismiss an allegation of no arbitration tribunal jurisdiction Only refusal to accept cases for re-examination is binding upon a state court.

13 Interaction between a state court and an arbitration tribunal (2/2)  How an arbitration tribunal decides on a charge of no jurisdiction?  In a separate decision or  in a final award  If a tribunal court recognizes its own jurisdiction in a separate decision, it is controlled by a state court in proceedings specified in art §3 of the CPC  If a tribunal court recognizes its own jurisdiction in an award, it is controlled by a state court  under proceedings to challenge an arbitration award or  in proceedings to recognize or declare enforceability of an arbitration award

14 Conclusions  A state court is entitled to verify the existence of an arbitration clause if a party alleges lack thereof.  A situation where an arbitration tribunal declares lack of own jurisdiction is beyond state court control.  A charge of no arbitration tribunal jurisdiction must be raised at an appropriate time.  If an arbitration tribunal finds itself empowered to resolve a case despite a charge of no jurisdiction, the party raising this charge must request a state court to verify such decision. Otherwise, it forfeits the right to invoke this charge in challenge proceedings or in proceedings to recognize or declare enforceability of an arbitration award.

 Aleje Ujazdowskie 10, Warsaw, Poland  tel.: ,  Arbitration in Poland Practical issues  Thank you for your attention  Monika Hartung