Poland: Arbitration

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This country-specific Q&A provides an overview of the legal framework and key issues surrounding arbitration law in Poland.

This Q&A is part of the global guide to Arbitration.

For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/index.php/practice-areas/arbitration/

  1. What legislation applies to arbitration in your country? Are there any mandatory laws?

    Arbitration proceedings in Poland are regulated by Part V of the Polish Civil Procedure Code (CPC).

    In principle, under art. 1184 §1 CPC, the parties are free to determine the procedure before the arbitral tribunal. However, several provisions of the Polish arbitration law are regarded as mandatory.

    Mandatory provisions which cannot be contracted around include:

    • 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
    • Waiver of the right to object (adopting Model Law art. 4).
  2. Is your country a signatory to the New York Convention? Are there any reservations to the general obligations of the Convention?

    Poland ratified the New York Convention on 3 October 1961 and the Convention entered into force with respect to Poland on 1 January 1962. Poland made reservations mentioned in art. I(3) of the Convention, namely a reciprocity reservation and a commercial nature of disputes reservation. Since the reservations were made upon signature, but not confirmed at ratification, the issue as to whether the reservations are effective is debatable, but the majority view confirms their effectiveness.

  3. What other arbitration-related treaties and conventions is your country a party to?

    Poland is a party to the European Convention on International Commercial Arbitration of 1961 (since 14 December 1964). Furthermore, Poland is a party to bilateral treaties relating to recognition and enforcement of arbitral awards with Algeria, Bosnia & Herzegovina, 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 art. VII(2) of the convention, the relevance of the protocol is limited.

  4. Is the law governing international arbitration in your country based on the UNCITRAL Model Law? Are there significant differences between the two?

    Polish arbitration law is based on the UNCITRAL Model Law, without amendments as adopted in 2006. However, unlike the Model Law, the Polish arbitration law is not limited to international commercial arbitration, but applies to all arbitral proceedings when the place of arbitration is in Poland.

  5. Are there any impending plans to reform the arbitration laws in your country?

    Currently there are no impending plans to introduce significant amendments to Polish arbitration law. However, it is worth mentioning some recent key changes that were made by adoption of the ADR Amendment Act (the Act Amending Certain Acts to Encourage Amicable Methods of Dispute Resolution of 10 September 2015) and the Restructuring Law of 15 May 2015, both of which entered into force on 1 January 2016.

    The ADR Amendment Act reformed the model of post-arbitration litigation. The Restructuring Law amended provisions of the 2003 Bankruptcy Law governing the effect of a declaration of bankruptcy on an existing arbitration agreement or pending arbitration proceedings.

    Furthermore, material changes to the Polish arbitration law concerning disputes arising out of consumer contracts were introduced by the Act on Out-of-Court Consumer Dispute Resolution of 23 September 2016, implementing the EU Directive (2013/11/EU). The act entered into force on 10 January 2017.

  6. What arbitral institutions (if any) exist in your country?

    The most recognized arbitral institutions in Poland are the Court of Arbitration at the Polish Chamber of Commerce and the Lewiatan Court of Arbitration. 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, the International Court of Arbitration at the Polish Chamber of Maritime Commerce (IMAC), and the Court of Arbitration at the Polish Olympic Committee.

  7. What are the validity requirements for an arbitration agreement under the laws of your country?

    In principle, 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 also be incorporated by reference (e.g. in general terms and conditions).

    From 10 January 2017, an arbitration agreement with consumers may be concluded only after a dispute has arisen and only in writing.

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

    Under Polish arbitration law, arbitration clauses are considered separable from the main contract. The doctrine of separability is recognized in art. 1180 §1 CPC, which provides that invalidity or expiration of the underlying agreement does not per se result in invalidity or expiration of the arbitration agreement.

  9. Can claims under more than one contract be brought in the one arbitral proceeding? Can an arbitral tribunal with its seat in your country consolidate separate arbitral proceedings under one or more contracts, and, if so, in what circumstances?

    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, which 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 a 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.

  10. How is the law applicable to the substance determined?

    The arbitration law provides that the arbitral tribunal shall resolve the dispute under the law applicable to the underlying legal relationship, leaving the method of determining the applicable law to the tribunal.

    In determining the applicable law, the tribunal should take into account the provisions of the contract and the established customs applicable to the given legal relationship.

    It is generally recognized that the tribunal should always respect the parties’ choice of law, especially in light of art. VII of the European Convention of 1961. The choice of law is deemed to refer to substantive law only, and not conflict of law regulations.

    The parties may also authorize the tribunal to resolve the dispute on the basis of general principles of law or equity, but in the case of consumer contracts the consumer must not be deprived of the protections afforded the consumer under mandatory rules of law.

    In the absence of the parties’ choice of law, the arbitrators may decide to either apply conflict of law rules or determine the applicable substantive law independently, and consequently base their decision on the substantive legal rule they deem appropriate.

    If the arbitrators decide to apply conflict of law rules, they may choose the conflict of law rules of lex fori, cumulative application of different conflict of law rules, application of general conflict of law rules, or the conflict of law rules which have the closest connection with the subject of the dispute or which they deem the most appropriate.

  11. Are any types of dispute considered non-arbitrable? What is the approach used in determining whether or not a dispute is arbitrable?

    In principle disputes concerning proprietary or non-proprietary rights, except for child/spousal support cases, are arbitrable, if they could be the subject of a court settlement.

    Thus, in determining whether a dispute is arbitrable, the settleability criterion will be applied.
    In general, that a dispute lacks arbitrability when the public interest or interests of third parties are at stake. It is accepted that the following disputes lack arbitrability:

    • Disputes over personal rights of individuals (e.g. defamation)
    • Disputes over entries in public registers
    • Certain non-monetary family matters.

    Arbitrability of disputes involving the validity of corporate resolutions is controversial.

  12. In your country, are there any restrictions in the appointment of arbitrators?

    Any natural person with full legal capacity may act as an arbitrator, and there are no nationality restrictions in this respect. However, judges may not act as arbitrators unless they are retired.

  13. Are there any default requirements as to the selection of a tribunal?

    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 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 consider the 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.

  14. Can the local courts intervene in the selection of arbitrators? If so, how?

    Local courts may not intervene in the selection of arbitrators, but under the default rule described above they may assist the parties in the selection of particular members of the tribunal.

  15. Can the appointment of an arbitrator be challenged? Can an arbitrator be disqualified? What is the procedure for such challenge?

    The arbitration law provides two grounds for challenging an arbitrator: lack of impartiality or 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.

    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.

    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, the party may seek removal by the court. An order of the court denying a challenge to an arbitrator is subject to an interlocutory appeal.

  16. Is the principle of competence-competence recognised in your country? What is the approach of local courts towards a party commencing arbitration in apparent breach of an arbitration agreement?

    The principle of competence-competence is incorporated in art. 1180 §1 CPC, according to which an arbitral tribunal may rule on its own jurisdiction, including the existence, validity or effectiveness of the arbitration agreement.

    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.

    Local courts cannot intervene in arbitration proceedings commenced in apparent breach of an arbitration agreement by issuing an anti-arbitration injunction. Furthermore, there is no case reported in which local courts awarded damages for breach of an arbitration agreement.

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

    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, by filing either 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 limitations is interrupted by any action before a state court or in arbitration which is aimed 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 be deemed to interrupt the statute of limitations, but only if the arbitral 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 arbitral tribunal does not have jurisdiction in the matter, the statute of limitations will not be deemed to have been interrupted but will continue to run until the case is brought to the state court.

  18. What is the applicable law (and prevailing practice) where a respondent fails to participate in the arbitration? Can the local courts compel parties to arbitrate? Can they order third parties to participate in arbitration proceedings?

    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.

    Local courts cannot compel either parties or third parties to participate in arbitration proceedings.

  19. In what instances can third parties or non-signatories be bound by an arbitration agreement or award (e.g. by joinder)?

    An arbitration agreement is generally binding only on 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 operation of the enterprise). Moreover, an arbitration clause included in the articles of association of a company extends to the company and any subsequent shareholder (the same rule applies also to an arbitration clause included in the statute of an association or cooperative).

    The arbitration law does not contain any provisions regarding 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.

  20. What interim measures are available? Will local courts issue interim measures pending the constitution of the tribunal?

    Interim measures may be issued by both local courts 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 (e.g. 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 arbitral tribunal.

    Anti-suit and anti-arbitration injunctions are not available under Polish law.

  21. Are there particular rules governing evidentiary matters in arbitration? Will the local courts in your jurisdiction play any role in the obtaining of evidence?

    The tribunal has broad discretion on evidentiary matters. Relevant evidence may be admitted in any form (e.g. 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.

    The parties may enter into stipulations concerning evidence. If the parties require or at least do not object, the tribunal may apply the IBA Rules on the Taking of Evidence in International Commercial Arbitration.

    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.

    There are no provisions in the arbitration law dealing with document production. No broad discovery procedure is 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.

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

    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.

  23. How are the costs of arbitration proceedings estimated and allocated?

    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).

  24. Can interest be included on the principal claim and costs incurred?

    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 which apply unless the parties agreed on a different rate.

  25. Does the law impose limits on the available remedies? Are some remedies not enforceable by the local courts?

    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.

  26. What legal requirements are there in your country for the recognition of an award?

    Recognition or enforcement of an arbitration award in Poland requires following a special procedure initiated upon application of an interested party. The application should be accompanied by the original or a copy certified by the arbitration court of the award or settlement reached before the arbitral tribunal, as well as the original or an officially certified copy of the arbitration agreement. If the award, settlement or agreement is not in Polish, the party shall provide a certified translation.

    The respondent has two weeks after service of the application for recognition or enforcement to present its position to the court.

    The application will be considered by the competent court of appeal, which will rule on recognition or enforcement of the arbitration award or settlement concluded before an arbitral tribunal, regardless of whether the tribunal was seated in Poland or abroad.

    In the case of domestic awards or settlements, an interlocutory appeal is available to a different panel of judges of the same court of appeal. For foreign awards or settlements, the ruling of the court of appeal is legally final, but it is permissible to file a cassation appeal with the Supreme Court.

  27. Can arbitration proceedings and awards be appealed or challenged in local courts? What are the grounds and procedure?

    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 will include more than one instance. In the judgment of 20 March 2015 (Case II CSK 352/14), the Supreme Court of Poland held that if the parties agreed that the proceeding before the arbitral tribunal is to include more than one instance (art. 1205 §2 CPC), then all the rules of arbitration proceedings apply equally to the appellate arbitration proceedings.

  28. Can the parties waive any rights of appeal or challenge to an award by agreement before the dispute arises (such as in the arbitration clause)?

    The right to challenge an award is considered to be mandatory. Consequently, parties cannot waive their right to challenge an award.

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

    The immunity defense cannot be raised as a defense against recognition or enforcement but it may be successfully raised to exclude certain assets from enforcement. Immunity defense will not be upheld with respect to assets of the state or state entities that are used for commercial purposes.

    Furthermore, Polish courts would allow execution if immunity from execution was waived by the state, for instance, in an arbitration agreement. Furthermore, the immunity defense will not be upheld if assets of the state or state entities are used for commercial purposes.

  30. Are there rules or restrictions on third-party funders in your country?

    There are no rules in Poland concerning third-party funders, and at least so far no common practice regarding third-party funding has been observed.

  31. Is there a concept in your country providing for class-action or group arbitration? If so, are there any limitations to the arbitrability of such claims or requirements that must be met before such claims may be arbitrated?

    Class or group arbitration is not known in Poland, in contrast to the class action procedure available before state courts.

    For the time being, no formal steps aiming to introduce class or group arbitration to Polish arbitration law have been taken.

  32. Is diversity in the choice of arbitrators (e.g. gender, age, origin) actively promoted in your country? If so, how?

    Diversity is not actively promoted in the Polish arbitration law, but efforts in this respect by different organizations, such as ArbitralWomen, are noticeable in Poland.

  33. Is emergency arbitrator relief available in your country? Is this actively used?

    Polish arbitration law does not provide for emergency arbitrator relief. However, rules for emergency arbitrator relief were introduced in Appendix II to the Lewiatan Court of Arbitration Rules in 2012. No statistics concerning use of emergency arbitrator relief are available.

  34. Have measures been taken by arbitral institutions in your country to promote transparency in arbitration?

    There is no express provision in Polish law for confidentiality or transparency 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. 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) if neither party objects to publication within 14 days after service of the ruling.

  35. Are efforts being made by arbitration institutions or local courts to impose strict deadlines for the rendering of awards?

    Polish arbitration law does not provide any time limits for issuance of an award.

    However, the parties may 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 the award.

  36. Have steps been taken in your country to publish reasoned decisions on arbitrator challenges and provide more insight into the drivers behind arbitrator selection by institutions?

    No specific steps have been undertaken in this respect in Poland. However, since under certain circumstances the parties may challenge an arbitrator in court, courts’ decisions in this regard will be publicly available.

  37. Are there arbitral laws or arbitration institutional rules in your country providing for simplified procedures for claims under a certain value?

    Generally no, however for instance the rules of the Court of Arbitration at the Polish Chamber of Commerce provide that if the amount in dispute does not exceed PLN 40,000 and the parties did not agree to hearing of the dispute by a panel of three arbitrators, disputes shall be resolved by a sole arbitrator.