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/
What legislation applies to arbitration in your country? Are there any mandatory laws?
Arbitration proceedings in Poland are regulated by a separate chapter (Part Five) of the Polish Civil Procedure Code (CPC).
In principle, under Article 1184 §1 CPC, the parties are free to determine the procedure before the arbitral tribunal. However, several provisions of Polish arbitration law are regarded as mandatory.
Mandatory provisions which cannot be contracted around include:
- Challenge of the arbitrators before a state court (Article 1176 § 2 CPC)
- Equal treatment of the parties (Article 1183 CPC)
- The right to be heard and present one’s case (Article 1183 CPC)
- Waiver of the right to object (Article 1193 CPC adopting Model Law Article 4)
- Petition to set aside the arbitral award (Article 1205 CPC).
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 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.
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). Poland also 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 limited.
Is the law governing international arbitration in your country based on the UNCITRAL Model Law? Are there significant differences between the two?
Since the 2004 reform, Polish arbitration law is based on the UNCITRAL Model Law, without the amendments of 2006. However, unlike the Model Law, Polish arbitration law is not limited to international commercial arbitration but applies to all arbitral proceedings in which the seat of arbitration is in Poland.
Are there any impending plans to reform the arbitration laws in your country?
Currently there are no impending plans to introduce any amendments to Polish arbitration law. However, it is worth mentioning that material changes to 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 an EU Directive (2013/11/EU). The act entered into force on 10 January 2017.
What arbitral institutions (if any) exist in your country? Have there been any amendments to their rules or are there any being considered?
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 particular industries, 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.
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).
There are specific requirements for arbitration agreements in regard to employment and consumer disputes – they may be concluded only after a dispute has arisen and only in writing. Moreover, an arbitration agreement which covers consumer disputes is invalid, unless the content clearly indicates that the parties are aware of the consequences of this agreement, in particular the legal effects of an arbitral award or a settlement concluded before an arbitral tribunal upon their recognition or enforcement by a state court.
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 Article 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.
Is there anything particular to note in your jurisdiction with regard to multi-party or multi-contract arbitration?
There are no specific provisions of arbitration law and no published case law on this issue. However, it is accepted that multi-party arbitrations are allowed as long as equal treatment of the parties is assured, in particular with respect to appointment of arbitrators. For instance, the Rules of the Lewiatan Court of Arbitration provide for a special procedure for appointment of arbitrators by multiple parties.
How is the law applicable to the substance determined? Is there a specific set of choice of law rules in your country?
The arbitration law provides that the arbitral tribunal resolves 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 a given legal relationship.
It is generally recognized 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 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.
Are any types of dispute considered non-arbitrable? Has there been any evolution in this regard in recent years?
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.
In general, it is considered that a dispute lacks arbitrability, if 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.
It is recognized that this criterion applies also to corporate disputes, which may make certain types of corporate disputes non-arbitrable, e.g., involving the validity of corporate resolutions. This issue is controversial, however.
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.
Are there any default requirements as to the selection of a tribunal?
If a court is to appoint an arbitrator, it takes into consideration the qualifications which the arbitrator should possess in accordance with the parties’ agreement, as well as other circumstances assuring appointment of an independent and impartial person to serve as an arbitrator. Moreover, if the court is to appoint a sole arbitrator or a presiding arbitrator in international arbitration, it should consider the need to appoint a person who is not connected with either of the countries that the parties come from.
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 is made from the institution’s list of arbitrators.
Can the local courts intervene in the selection of arbitrators? If so, how?
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.
Can the appointment of an arbitrator be challenged? What are the grounds for such challenge? What is the procedure for such challenge? Has there been an increase in number of challenges in your jurisdiction?
Arbitration law provides two grounds to challenge an arbitrator: lack of impartiality or independence, and lack of the qualifications agreed by the parties. The party that appointed an arbitrator may challenge the arbitrator only if the party became aware of the grounds for the 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.
We did not notice a significant increase in number of challenges in recent years.
What happens in the case of a truncated tribunal? Is the tribunal able to continue with the proceedings?
Under arbitration law, in case of termination of an arbitrator’s appointment, a new arbitrator shall be appointed. Therefore, a truncated tribunal cannot continue the proceedings.
However, the rules of the arbitral institutions provide for a possibility of a truncated tribunal to continue proceedings and render an award, if the termination of an arbitrator’s appointment or an arbitrator’s failure to perform his or her duties occurs after the evidentiary proceeding is finished. For instance, under the Rules of the Court of Arbitration at the Polish Chamber of Commerce, a decision on the continuation of proceedings by the truncated tribunal is made by the Arbitral Council.
Are arbitrators immune from liability?
There is no general regulation in Polish law concerning arbitrators’ immunity from liability. To the contrary, arbitration law expressly provides that if an arbitrator resigns without a valid reason, he or she is liable for damage caused by the resignation. On the other hand, the rules of the arbitration institutions usually provide for express waiver of liability for negligent breach of arbitrators’ duties.
Is the principle of competence-competence recognised in your country?
The principle of competence-competence is incorporated in Article 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 the arbitration proceedings. 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.
What is the approach of local courts towards a party commencing litigation in apparent breach of an arbitration agreement?
The court dismisses the case, if the respondent asserts the plea of the arbitration agreement before joining issue on the merits, unless the arbitral clause is invalid, ineffective, inoperative or lost its effects, or unless an arbitration tribunal has ruled on lack of its jurisdiction. Moreover, commencing litigation does not prevent the arbitral tribunal from hearing the case.
How are arbitral proceedings commenced in your country? Are there any key provisions under the arbitration laws relating to limitation periods or time bars of which the parties should be aware?
Under arbitration law, proceedings may be commenced by serving a request for arbitration on the respondent, designating the parties, the dispute, and the arbitration agreement, and also by 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.
However, 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.
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 a request for arbitration or a statement of claim on the respondent (as provided in CPC) 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, is 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 before a state court.
What happens when a respondent fails to participate in the arbitration? Can the local courts compel parties to arbitrate?
The arbitration law enables proceeding with an arbitration despite the respondent’s failure to participate. If the respondent fails to file a statement of defence, the arbitral tribunal continues the proceedings, but such failure shall not be deemed admission of the facts alleged in the statement of claim.
Local courts cannot compel either parties or third parties to participate in arbitration proceedings.
In what circumstances is it possible for a state or state entity to invoke state immunity in connection with the commencement of arbitration proceedings?
Entering into an arbitration agreement itself is commonly treated as a waiver of any immunity from suit. However, this question has not yet been considered in the publicly available case law. It is worth noting that currently the Polish state and state entities are generally reluctant to concluding arbitration agreements.
In what instances can third parties or non-signatories be bound by an arbitration agreement or award? Can local courts order third parties to participate in arbitration proceedings in your country?
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).
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.
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 an 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. Interim measure proceedings before a state court can be conducted ex parte.
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 courts or other state institutions (e.g. a stay of judicial execution proceedings), which would be available from a 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 an injunctive relief), there is an area of legal dispute that makes it impracticable for the parties to seek an interim relief of this type from the arbitral tribunal.
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. However, this possibility is hardly ever used in practice.
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.
How are the costs of arbitration proceedings estimated and allocated?
Polish law does not provide rules on cost allocation or recovery. In practice, the costs follow the event rule is typically applied both in institutional and ad hoc arbitration.
Can pre- and post-award interest be included on the principal claim and costs incurred?
The question of interest is governed by substantive law. If Polish law is applicable to the merits of dispute, on a specific request of the claimant, the amount of the principle claim is awarded together with interests (usually both pre- and post- award). Interest on costs are rarely awarded.
What legal requirements are there in your country for the recognition of an award?
The recognition or enforcement of an award is granted by the state court within special proceedings.
The motion for recognition or enforcement of an arbitral award is filed to the competent court of appeal and it should be accompanied by the original award or a copy thereof certified by the arbitral tribunal, as well as the original or an officially certified copy of the arbitration agreement. If the award is not in Polish, the party is obliged to provide a certified translation.
What is the estimated timeframe for the recognition and enforcement of an award? May a party bring a motion for the recognition and enforcement of an award on an ex parte basis?
The proceedings for the recognition or enforcement of an arbitral award rendered in Poland usually take several weeks. The decision of the court of appeal, although immediately enforceable, is subject to an interlocutory appeal to a different panel of judges of the same court of appeal, which may take another several weeks.
The proceedings for the recognition or enforcement of a foreign arbitral award usually take between several months. This decision of the court of appeal in such a case is final and binding, but it may be subject to a cassation appeal to the Supreme Court. If cassation appeal has been filed, the proceeding at the Supreme Court may last up to two years, provided that the Supreme Court will accept the cassation appeal for its consideration (which is subject to certain preconditions).
The motion for the recognition and enforcement cannot be brought on an ex parte basis. The respondent has two weeks after service of the motion for the recognition or enforcement to present its position to the court.
Does the arbitration law of your country provide a different standard of review for recognition and enforcement of a foreign award compared with a domestic award?
In proceedings for recognition or enforcement of a domestic award, the court of appeal can dismiss the motion only if: 1) the dispute lacks arbitrability; 2) recognition or enforcement of the award would be contrary to fundamental principles of the legal order of the Republic of Poland (public policy clause); or 3) the award deprives a consumer of the protection afforded to him by mandatory provisions of law governing the contract, and if the law governing the contract is the law chosen by the parties, the protection afforded to the consumer by mandatory provisions of law that would be applicable in the absence of a choice of law. These grounds are considered by the court ex officio.
Recognition and enforcement of foreign awards is generally governed by the New York Convention. In rare cases, in which the New York Convention does not apply, Polish arbitration law provides for an extended list of grounds for denial of recognition and enforcement of a foreign award. This list covers all grounds applicable to domestic awards as well as grounds related to the jurisdiction of the arbitral tribunal and to the compliance of the arbitral proceedings with the parties’ agreement and applicable law which are considered by the court only at a party’s request.
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 applicable substantive law, provided it does not violate the Polish public policy. For example, it is generally believed that punitive damages are contrary to the Polish public policy.
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 on merits from an arbitral award to a state 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 was to include more than one instance (Article 1205 §2 CPC), then all the rules of arbitral proceedings applied equally to the appellate arbitration proceedings.
On the other hand, the parties can challenge a final arbitral award by filing a petition to set aside the award with the competent court of appeal within two months after service of the award. The court shall set aside an award if:
1) there was no arbitration agreement, or the arbitration agreement is invalid, ineffective or no longer in force under the provisions of applicable law;
2) the party was not given proper notice of the appointment of an arbitrator or the proceeding before the arbitral tribunal or was otherwise deprived of the ability to defend its rights before the arbitral tribunal;
3) the arbitral award deals with a dispute not covered by the arbitration agreement or exceeds the scope of the arbitration agreement; however, if the decision on matters covered by the arbitration agreement is separable from the decision on matters not covered by the arbitration agreement or exceeding the scope thereof, then the award may be set aside only with regard to the matters not covered by the arbitration agreement or exceeding the scope thereof; exceeding the scope of the arbitration agreement cannot constitute grounds for vacating an award, if a party who participated in the proceeding failed to assert a plea against hearing the claims exceeding the scope of the arbitration agreement;
4) the requirements with regard to the composition of the arbitral tribunal or fundamental rules of procedure before such tribunal, arising under the law or specified by the parties, were not observed;
5) the award was obtained by means of an offence or the award was issued on the basis of a forged or altered document; or
6) a legally final court judgment was issued in the same matter between the same parties.
The above grounds are considered by the court only at the party’s motion. However, the award will also be set aside if:
1) the dispute lacks arbitrability;
2) recognition or enforcement of the award would be contrary to fundamental principles of the legal order of the Republic of Poland (public policy clause); or
3) the award deprives a consumer of the protection afforded to him by mandatory provisions of law governing the contract, and if the law governing the contract is the law chosen by the parties, the protection afforded to the consumer by mandatory provisions of law that would be applicable in the absence of a choice of law.
These grounds are considered by the court ex officio.
The judgment of the court of appeal is subject to a cassation appeal to the Supreme Court.
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 file a petition to set aside an award.
To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
The immunity defence cannot be raised as a defence against recognition or enforcement but it may be successfully raised to exclude certain assets from enforcement. Immunity defence 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.
To what extent might a third party challenge the recognition of an award?
A third party could challenge the recognition of an award in case the action for recognition was for some reason filed against such party (e.g. as a legal successor) or if a third-party have otherwise became a party to recognition proceeding. In general, it is believed, however, that an award, even if recognized, can have no legal effects against third parties, and this may be argued in any proceeding where such effects could be at issue.
Have there been any significant developments with regard to third party funding in your jurisdiction recently?
In Poland third party funding is not regulated. There is also no publicly available case law discussing this matter.
Is emergency arbitrator relief available in your country? Is this frequently used?
Arbitration law does not provide for emergency arbitrator relief. Such a relief in available under certain institutional rules such as the Rules of Lewiatan Court of Arbitration but it is very rarely used.
Are there arbitral laws or arbitration institutional rules in your country providing for simplified or expedited procedures for claims under a certain value? Are they often used?
Expedited procedures are provided in the rules of Polish arbitral institutions. For instance, under the Rules of the Lewiatan Court of Arbitration, if the amount in dispute does not exceed PLN 50 000, unless the parties agree otherwise, in particular by deciding that the dispute is to be settled by an arbitral tribunal composed of three arbitrators, the rules on the expedited procedure apply. Then, the case is heard by a sole arbitrator who renders an award within three months following his or her appointment.
Expedited procedures are used mainly in domestic cases, which are frequently of low value. Moreover, often arbitration clauses expressly stipulate that an arbitral tribunal needs to be composed of three arbitrators, and by way of such stipulation the parties opt out from the expedited procedures.
Have there been any mass (arbitration) claims in your jurisdiction?
There have been no mass arbitration claims in Poland.
Have measures been taken by arbitral institutions in your country to promote transparency in arbitration?
According to the Rules of the Court of Arbitration at the Polish Chamber of Commerce, the Arbitral Council can decide about publication of an award, if anonymity is ensured and neither of the parties objected to the publication of the award within 14 days following delivery thereof. An analogous provision is included in the Rules of the Lewiatan Court of Arbitration.
Is diversity in the choice of arbitrators and counsel (e.g. gender, age, origin) actively promoted in your country? If so, how?
So far there have been no organized initiatives to promote diversity in arbitration.
Have there been any developments regarding mediation in your jurisdiction?
In June 2017 meditation was introduced as a method of resolving disputes in certain type of administrative cases which involve parties with conflicting interests.
Have there been any recent court decisions in your country considering the setting aside of an award that has been enforced in another jurisdiction or vice versa?
There is no such case law available in the public domain.
Is corruption an issue that is regularly raised in your jurisdiction? What standard do local courts apply for proving of corruption?
There is no publicly available case law in this regard.