International arbitration law and rules in Poland

The Polish courts have adopted an arbitration-friendly approach. The Supreme Court has expressly indicated the need to interpret arbitration agreements in favorem iurisdictionis arbitrii, especially in international trade (see judgment of 1 December 2017, case No. I CSK 170/17). Reforms to the Polish arbitration law in 2023 introduced court-referred arbitration in article 1161(1)(1) of the CCP, which empowers the court to discontinue proceedings once the parties have agreed to arbitration. ₁   While such referral is consensual, some state court judges have been proactively promoting arbitration to resolve disputes out of court.

1.1.1 The Polish arbitration legislation is based on the UNCITRAL Model Law (1985).  ₂  Unlike the UNCITRAL Model Law, however, it is not limited to international commercial arbitration but applies to all arbitral proceedings seated in Poland. 

1.1.2  Domestic and international arbitration in Poland is regulated by the provisions of the Polish Code of Civil Procedure (CCP). The CCP came into force in 1964. However, the CCP provisions that are dedicated to arbitration were replaced by an act dated 28 July 2005, which entered into force on 17 October 2005. The Polish arbitration law included in the Fifth Part of CCP has been amended on a few occasions since its introduction in 2005. For example, the reform effective from 1 January 2016 entrusted the so-called post-arbitration proceedings (ie proceedings pertaining to setting aside as well as recognition and enforcement of arbitral awards) to the courts of appeal, as the courts of the only instance. The purpose of the change was to shorten post-arbitration proceedings, as well as to enhance the quality of arbitration-related case law.

1.1.3 The recognition and enforcement of foreign awards are in most instances based on the New York Convention on the Recognition or Enforcement of Foreign Arbitral Awards (1958) (New York Convention). ₃  Poland has been a party to the New York Convention since 1 January 1962, with reciprocity and commercial reservations. ₄

1.1.4 Poland has been a party to the European Convention on International Commercial Arbitration of 1961 since 14 December 1964. Poland is also a party to bilateral treaties relating to recognition and enforcement of arbitral awards with Algeria, Bosnia and Herzegovina, China, Croatia, Iraq, Montenegro, Morocco, North Macedonia, Serbia, Slovenia, Syria, and Turkey. Poland remains a party to the Geneva Protocol on Arbitration Clauses in Commercial Matters of 1923, although its relevance is very limited.

1.1.5 Poland has not signed nor ratified the Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965).

1.1.6 The practical importance of investment arbitration in Poland has diminished as a consequence of the Agreement for the termination of Bilateral Investment Treaties between the Member States of the European Union dated 5 May 2020 (regarding Intra-EU BITs), and an act terminating the Energy Charter Treaty and the Energy Charter Protocol on Energy Efficiency and Related Environmental Aspects, signed by the President of Poland on 14 November 2022. However, Poland remains a party to several BITs with countries other than EU Member States.  ₅

2.1.1 The provisions of the Fifth Part of the CCP apply to all arbitral proceedings where the seat of arbitration is within Poland and, in certain cases, to foreign arbitral proceedings. For example, where there is an existing arbitration agreement, a Polish court can reject a statement of claim, upon objection from one of the parties to the arbitration agreement, or it can issue an interim injunction in a dispute that has been decided by a foreign arbitral tribunal. The law does not establish any major differences between institutional and ad hoc arbitration.

2.1.2 One of the main strengths of the CCP provisions on arbitration is that they allow a wide degree of party autonomy. In particular, the parties to the dispute are free to determine almost all issues concerning, inter alia, procedure, and select the procedural rules, seat of arbitration and language of the arbitral proceedings.

2.2.1 The CCP contains only a few mandatory provisions regarding arbitral proceedings. Based on these provisions, the some general principles may be identified as set out below.

Party autonomy

2.2.2 The parties are free to agree on the procedure to be applied to the resolution of their dispute, as long as the arbitral proceedings comply with the mandatory provisions of the CCP. ₆

Equal treatment of the parties

2.2.3 The principle of equal treatment of the parties is expressly stated in the CCP and is binding on the arbitral tribunal. ₇  Any provisions of an arbitration agreement that would impede this principle of equality, including provisions entitling only one party to file a statement of claim before an arbitral tribunal or a court or granting more rights with respect to the composition of the tribunal, ₈  are prohibited. If a party is not granted the opportunity to defend its rights, then the courts may set aside the award.

Non-intervention by the courts

2.2.4 The courts may only intervene in arbitral proceedings to the extent expressly provided for by the CCP. For example, the courts have jurisdiction to take the following steps:

• appoint an arbitrator if the parties (or one of them) fail in making an appointment;  ₉
• rule on a challenge to an arbitrator if the arbitrator has not been removed or has not resigned; ₁₀  or
• take other steps that cannot be carried out by the arbitral tribunal itself, including compelling the attendance of witnesses and conducting their examination for the purposes of the arbitration. ₁₁

2.2.5 The assistance that the courts may offer the parties to a dispute is set out in more detail in section 9 below.

3.1.1 Institutional arbitral tribunals operate in Poland under the auspices and in accordance with arbitration rules established by the relevant arbitral institution.

3.1.2 The most important arbitral institution in Poland is the Court of Arbitration at the Polish Chamber of Commerce in Warsaw (SA KIG). Its history dates back to 1950. In recent years, the average caseload has been in the range of 200 new arbitrations each year.

3.1.3 There are also other smaller arbitral institutions, eg. the Court of Arbitration at Polish Confederation Lewiatan (Lewiatan Court of Arbitration) established in 2004.

3.1.4 Some institutions are focused on disputes in particular industries, such as the Court of Arbitration for Internet Domain Names at the Polish Chamber of Information Technology and Telecommunication, the Court of Arbitration at the Cotton Association, and the International Court of Arbitration at the Polish Chamber of Maritime Commerce (IMAC).

3.1.5 The arbitral tribunals constituted under the institutional arbitration rules are independent units within their respective institutions.

3.1.6 The arbitration rules governing institutional arbitral proceedings follow  international standards. The parties may choose party-appointed arbitrators freely. The Rules of the Court of Arbitration at the SA KIG state that a sole arbitrator and the president of the arbitral tribunal must be chosen from its list of arbitrators. However, upon a joint motion of both parties, or arbitrators, the Arbitration Court may give permission to choose someone outside of this list. ₁₂  In practice, there has been no case in which the Arbitration Court has refused such permission.

3.1.7 If the parties wish to submit their disputes to institutional arbitration, it is important to identify the competent arbitral institution. The arbitral institution chosen by the parties must be at least identifiable for a state court in case one party initiates court proceedings and the other party raises a jurisdictional objection. In a judgment of 27 October 2022 (case no. II CSKP 470/22), the Polish Supreme Court decided that a state court cannot convert an arbitration agreement submitting a dispute to institutional arbitration into an ad hoc arbitration agreement. Thus, if a state court cannot identify the arbitral institution chosen by the parties, the arbitration agreement may be deemed unenforceable, and consequently the dispute may be decided by a state court.

4.1.1 An arbitration agreement may be drafted as a separate, self-contained agreement, or may appear as an arbitration clause in the main contract. The Polish arbitration law recognises arbitration agreements in either form, whether they are intended to govern future disputes between the parties (although the arbitration agreement needs to specify the legal relationship from which the future dispute may arise) or to submit existing disputes to arbitration.

4.1.2 The formal requirements for an arbitration agreement are set out in article 1162(1) of the CCP. In principle, an arbitration agreement must be made in writing. However, this requirement is met if an arbitration agreement is included in letters or statements that are exchanged between the parties by means of a communication that preserves the content of the agreement. ₁₃  An arbitration clause may also be valid if it is included in a separate document that is referred to in a written contract between the parties, provided that the reference makes the arbitration clause an integral part of the contract. The CCP requires that the subject matter of the dispute, or the legal relationship from which the dispute arises or may arise, is specified in the arbitration agreement. ₁₄

4.1.3 Arbitration agreements regarding disputes arising from (a) employment agreements; ₁₅  or (b) agreements to which one of the parties is a consumer, must be made in writing and may only submit an existing dispute to arbitration. ₁₆  In relation to the latter, the arbitration clause must also indicate that the parties are aware of the effects of the arbitration clause – otherwise, the clause may be found to be invalid. In particular, the arbitration agreement must confirm that it is the understanding of the parties to that agreement that any arbitration award (or settlement agreement), once recognised by the Polish courts or determined to be enforceable by the Polish courts, will have the same legal force as an order of the court. ₁₇

4.1.4 The parties are free to appoint the arbitrators specified in their arbitration agreement or to indicate the number of arbitrators and the method of their appointment. As mentioned in paragraph ‎2.2.2 above, the parties are, to a large extent, also free to determine the procedure governing the arbitral proceedings.

4.1.5 An arbitration agreement may be incorporated into the articles of association of a commercial company ₁₈  and apply to all disputes regarding relationships within a company.

4.1.6 Until 2019, such an arbitration agreement was binding only for the company and its shareholders. However, since the reform of Polish arbitration law effective from 8 September 2019, it is binding also for the corporate bodies (such as the management board) and their members. The amendment is particularly relevant for disputes over validity of corporate resolutions, where the proceedings may be initiated by corporate bodies or their members.

4.1.7 These  rules apply equally  to arbitration agreements included in the statutes of partnerships, co-operatives, associations, and – since 22 May 2023 – family foundations.

4.1.8 Unless otherwise agreed, a power of attorney granted by a business entity in relation to a specific act also includes a power of attorney to conclude an arbitration agreement in relation to possible disputes concerning that act. ₁₉

4.2.1 The provisions of the CCP enable parties to submit most disputes to arbitration. This principle applies to both domestic and foreign arbitration.

4.2.2 Until 2019, arbitrability was limited to disputes that could be the subject of a court settlement, namely, disputes regarding rights the parties may freely dispose of. In other words, arbitrability was linked to the so-called “settleability”.

4.2.3 From 8 September 2019, however the “settleability” requirement applies only to disputes over non-economic rights. Hence, disputes over economic rights are generally arbitrable, unless certain categories of such disputes are expressly made non-arbitrable by the law, such as disputes relating to family maintenance (spousal support, child support, etc), or are non-arbitrable due to their legal nature. As a  result, a very broad catalogue of disputes may be submitted to arbitration. Disputes that still remain non-arbitrable include: (i) disputes over personal rights of individuals; (ii) disputes over entries in public registers; and (iii) certain non-economic family-law rights.

4.3.1 The CCP provides for the separability of arbitration clauses. ₂₀  The arbitration clause is a separate and independent part of the contract. Consequently, the validity and existence of the arbitration clause is construed separately from the other terms of the contract. As described in more detail in Section 6 below, the arbitral tribunal has the authority to determine the validity of the arbitration agreement.

4.4.1 Under the Conflicts of Laws Act of 4 February 2011 (Conflicts of Laws Act), an arbitration agreement is governed by the law chosen by the parties. ₂₁  If the governing law is not chosen by the parties, the law of the seat of the arbitration, as agreed by the parties, governs the arbitration agreement. If the seat of the arbitration has not been agreed by the parties, then the arbitration agreement is governed by the law applicable to the legal relationship to which the dispute relates. ₂₂

4.5.1 If an arbitration agreement is valid and binding with regard to the dispute between the parties, neither party may unilaterally demand that a court decide the dispute. For details of preliminary rulings on jurisdiction by the courts, see Sections 6.1 and 9.1 below.

4.5.2 The parties may terminate the arbitration agreement by agreement and restore the jurisdiction of the courts. In addition, the CCP recognises the following four situations where an arbitration agreement may lose its validity and cease to be binding:

1. where a person who was expressly designated in an arbitration agreement as an arbitrator and/or chair rejects or cannot otherwise fulfill his or her duties. In such a situation, the arbitration agreement becomes void, unless the parties have agreed otherwise; ₂₃
2. where an arbitral tribunal which was expressly designated by the parties in an arbitration agreement, refuses to hear the case or is unable to do so. In such a situation, the arbitration agreement again becomes void, unless the parties have agreed otherwise; ₂₄
3. where a majority of votes (or unanimity, if required), cannot be reached by the arbitral tribunal when making the award (whether in respect of all or part of the claim). In such circumstances:

• if the arbitration agreement applies to any and all claims arising under a certain agreement, the arbitration agreement will become void in respect of the specific claim where the majority (or, if required, unanimity) of votes cannot be obtained; and
• if the arbitration agreement applies only to specific claims arising under a certain agreement, and those claims are the subject of an arbitration in which the majority (or, if required, unanimity) of votes cannot be obtained, the arbitration agreement will become void. ₂₅  and

iv. the parties may decide that the arbitration agreement will cease to exist in circumstances           where the arbitral award has been set aside. ₂₆

4.5.3 Should any of these situations arise, the parties are free to commence proceedings in court.

5.1.1 Any individual with full legal capacity may be an arbitrator. ₂₇  However, active judges of the Polish courts cannot serve as arbitrators. 28  The law does not require arbitrators to be citizens of Poland and, as long as a foreign citizen has full legal capacity, that foreign citizen may be appointed to act as an arbitrator.

5.1.2 The person appointed as arbitrator should immediately inform both parties about any circumstances that could raise doubts about his or her impartiality or independence. ₂₉  According to case law, an arbitrator may be removed by the court at a party’s request for the similar reasons as court judges, such as if the arbitrator is a party to the dispute, the disputed case relates to the arbitrator’s spouse or relatives, or the arbitrator is or was an attorney at law for any party in the disputed case.

5.1.3 In the arbitration agreement, parties are free to agree on the number of arbitrators and the method of their appointment. The parties may also agree on the number after a dispute has arisen or may refer to the rules of an established arbitral institution. It is possible for the parties to either appoint the arbitrators in the arbitration agreement, or to select them as and when a dispute arises. It is also possible for the parties to only agree on an appointing authority, which will then choose the arbitrators when asked to do so by the parties.

5.1.4 If the parties fail to specify the number of arbitrators, or if the applicable procedural rules of the arbitral institution do not provide for the number of arbitrators, the arbitral tribunal will consist of three arbitrators. ₃₀

5.1.5 The CCP provides for limited recourse to the courts when a party, or the appointing authority that is obliged to appoint an arbitrator, fails to do so (generally within one month of being requested to appoint an arbitrator). In such a case, the court shall appoint an arbitrator at the request of a party, pursuant to articles 1171–1173 of the CCP. When appointing an arbitrator, the court shall consider the arbitrator’s qualifications specified by the parties in the arbitration agreement, as well as other circumstances ensuring the impartiality and independence of the arbitrator. When appointing a sole arbitrator in a dispute between parties from different countries, the court shall consider appointing an arbitrator who is not linked to the relevant countries.

5.2.1 An arbitrator may only be removed if there are justified doubts as to their impartiality or independence, or if the arbitrator does not have the qualifications specified in the arbitration agreement. ₃₁  A party may only request the removal of an arbitrator whom it appointed or in whose appointment it took part, if that party became aware of the grounds for removal after the appointment of the arbitrator. ₃₂

5.2.2 Arbitral institutions deciding on a challenge would generally take the IBA Guidelines on Conflicts of Interest in International Arbitration into account. State courts treat the IBA Guidelines as general but authoritative guidance.

5.2.3 The procedure for challenging and removing arbitrators may be agreed between the parties. ₃₃  However, if an arbitrator who has been challenged is not removed within one month of the date on which the challenging party filed a corresponding motion with the arbitral tribunal (or an institutional court of arbitration), the challenging party may file a request for the removal of the arbitrator with the appropriate state court within two weeks. The appropriate court is the court that would have been competent to decide the case if the parties had not entered into an arbitration agreement. Provisions in an arbitration agreement excluding such a motion are ineffective. ₃₄

5.2.4 Similarly, if the arbitrator does not resign or is not removed within two weeks from the delivery of the notice to the arbitrator, the demanding party is entitled to file a motion challenging the arbitrator with the court. ₃₅

5.2.5 The court is also entitled to remove any arbitrator upon a motion from a party, if it is obvious that the arbitrator will not perform his or her obligations within the specified time, or if the arbitrator delays the performance of his or her obligations without a significant reason. ₃₆

5.2.6 If the case is heard by an arbitrator who, based on the provisions of the CCP, should be removed, this may also constitute grounds for the award to be set aside, but only if a party files an objection within the appropriate time (as set out in paragraphs 5.2.2 and 5.2.3  above). The objection should be directed to the  court of arbitration of the administering institution, the arbitral tribunal, and the other party, as the case may be. In the absence of any objection it is still possible for an arbitral award to be set aside (for example, if the arbitrator were to subsequently recognise that he or she was in violation of principle that one should not be a judge in one’s own case (nemo iudex in re sua).

5.3.1 If an arbitrator breaches his or her duties, or if the arbitrator’s appointment terminates for any other reason, the parties should appoint a substitute arbitrator. This should be done following the same procedure that is applicable to the appointment of the original arbitrators. ₃₇

5.3.2 If a party-appointed arbitrator resigns or is removed, and the replacement arbitrator that has been appointed by that party likewise resigns or is removed, then the other party may demand that the court, instead of the opposing party, appoints a substitute arbitrator. A substitute arbitrator may also be appointed before the expiry of the mandate of any arbitrator (eg in an arbitration agreement). ₃₈

5.4.1 The arbitrators are entitled to remuneration for  services rendered, and to reimbursement of expenses incurred by them in relation to the resolution of the dispute. ₃₉

5.4.2 In an ad hoc arbitration, the amount of the arbitrators’ fees and the method of their payment is a matter to be agreed between the parties and the individual arbitrator. If no agreement is reached between the parties and the arbitrators, the court shall determine the arbitrators’ remuneration and the expenses to be reimbursed. 40  The parties are jointly liable for the payment of the arbitrators’ remuneration and for reimbursement of their expenses.

5.4.3 In an institutional arbitration, the rules of the relevant arbitral institution will provide for the amount, method and terms of payment of arbitrators’ fees and expenses. If the institutional rules do not provide for these, the statutory rules provided by the CCP shall apply.

5.5.1 An arbitrator is liable for any losses caused by his or her resignation, unless there are important reasons for such resignation. ₄₁  The CCP does not make any further provision for the liability of arbitrators, but established doctrine and practice characterise the relationship between the parties and arbitrators as similar to that between parties contracting for the performance of services. Therefore, should a negligent act or omission on the part of an arbitrator cause a loss to a party, that party may be entitled to damages from the arbitrator. Even though the CCP does not provide for any specific rules on arbitrators’ liability, the rules of the main Polish arbitral institutions limit the arbitrators’ liability only to damage caused intentionally.

6.1.1 The arbitral tribunal can rule on its own jurisdiction, including the existence and validity of the arbitration agreement. ₄₂  A plea that the arbitral tribunal does not have jurisdiction must be raised no later than in the statement of defence, unless that party did not know and could not have known, even when acting with due diligence, of the grounds to question the arbitral tribunal’s competence, or if such grounds occurred after the filing of the defence. ₄₃  The parties may agree to extend the term for questioning the jurisdiction of the arbitral tribunal beyond the filing of the defence. The arbitral tribunal may, in any case, admit a later plea if it considers that the delay is justified. A party is not prevented from raising such a plea by the fact that it has appointed, or participated in the appointment of, an arbitrator.

6.1.2 Each party may appeal against a decision of the arbitral tribunal on its jurisdiction to the state courts within two weeks from the date of delivery of such decision. The decision of the state courts may then be subject to a further appeal (zazalenie). ₄₄

6.2.1 Interim measures are available from both state courts and arbitral tribunals. The arbitral tribunal may issue orders imposing interim protective measures, but such measures are not directly enforceable. Issuing such orders may be made conditional upon the payment of appropriate security. ₄₅  If a protective measure is obviously unjustified then the party requesting it is responsible for any loss caused by such measure. ₄₆  The claim may be pursued before the arbitral tribunal who issued the order or before the court (see Section 9.3 below).

6.2.2 Polish arbitration law does not provide for any explicit limitations as to the kinds of interim measures that may be ordered by an arbitral tribunal. There are practical limitations, however. For example, an arbitral tribunal may not order interim measures that interfere with the activities of state courts or other state institutions (eg, a stay of judicial enforcement proceedings).

6.2.3 Polish state courts generally do not issue anti-suit injunctions in relation to arbitration.

7.1.1 In an ad hoc arbitration, unless otherwise agreed by the parties, proceedings before an arbitral tribunal commence on the date that a notice of arbitration is served on the respondent. ₄₇  Within a period of time agreed by the parties or determined by the arbitral tribunal, the claimant shall make a statement of claim and the respondent may file a defence. ₄₈  The parties may submit all documents that they consider relevant when submitting their respective statements. ₄₉

7.1.2 The presentation of a statement of claim by the claimant is obligatory. ₅₀  For consequences of a failure by either party to file their statement of claim or defence, see ection 7.7 below.

7.1.3 Unless otherwise agreed by the parties, either party may amend or supplement its statement of claim or defence in the course of the arbitral proceedings, except where the arbitral tribunal considers that the delay in seeking such an amendment renders it inappropriate. ₅₁

7.1.4 In institutional arbitration, such matters will generally be regulated by the rules of the relevant institution. For example,  the Arbitration Rules of the Court of Arbitration at the Polish Chamber of Commerce allow a claimant to commence arbitration by filing either a notice of arbitration or a statement of claim. The latter may be preferable in practice in any matters pertaining to straight-forwarded claims for payment, or instances where immediate legal protection is sought. Those arbitration rules provide also for emergency arbitration and expedited (fast-track) arbitration proceedings.   

7.2.1 The parties are free to decide on the procedural rules governing the arbitration. ₅₂  Should the parties fail to determine the applicable procedural rules, the arbitral tribunal must apply the rules of procedure that it deems most appropriate. ₅₃  The provisions of civil procedure applicable to court proceedings are not binding on the arbitral tribunal.

7.2.2 If the parties have agreed in the arbitration agreement that the arbitration will be conducted under the auspices of an arbitral institution, the parties are bound by the rules of the relevant arbitral institution as they were on the date on which the parties concluded the arbitration agreement, unless otherwise agreed or unless the rules of the relevant arbitral institution state otherwise. ₅₄

7.3.1 Service of correspondence is regulated to reduce the risk that a losing party could successfully challenge an arbitral award based on issues related to service of notices.

7.3.2 Unless otherwise agreed by the parties, any written communication is deemed to have been received if it is delivered to the addressee personally or if it is delivered at its place of business, habitual residence or mailing address. ₅₅  If the addressee is a business entity registered in the proper court or other public registry, a communication is deemed to have been received if it is delivered to the address specified in the registry. ₅₆

7.3.3 If none of these places can be found after making a reasonable inquiry, a written communication is deemed to have been received if it is sent to the addressee’s last-known place of business, habitual residence or mailing address. In these instances, the communication is deemed to be received on the last day that the communication could have been collected by the addressee. ₅₇

7.4.1 The parties are free to choose the seat of arbitration. In the absence of a choice by the parties, the arbitral tribunal shall determine the seat of arbitration, bearing in mind the subject matter of the dispute, the circumstances of the case and convenience for the parties. ₅₈  If the seat of arbitration was not agreed to by the parties or determined by the arbitral tribunal and the award was rendered in Poland, then the seat of arbitration will be deemed to be Poland. ₅₉

7.4.2 The parties are also free to choose the language of the arbitration. ₆₀  If the parties have not expressed a choice of language, then the arbitral tribunal shall determine the language of the arbitration.

7.5.1 The CCP does not contain any specific provisions dealing with multi-party proceedings except for the following.  The 2019 amendment to the Polish arbitration law introduced a rule that if two or more parties bound by an arbitration agreement act on the side of the claimant or the respondent, the nomination of an arbitrator on their side must be unanimous. This rule can be modified in the arbitration agreement. In each case, a multi-party arbitration agreement must guarantee equal treatment of the parties, also with respect to appointment of arbitrators. If the contractual mechanism for constitution of the tribunal violates party equality, it may be deemed ineffective and replaced by the default statutory rules.

7.5.2 The arbitration rules of the Court of Arbitration at the Polish Chamber of Commerce in Warsaw provide for the procedure of appointing an arbitrator both in situations where there is more than one party acting as a claimant or a respondent, and where a third party is to be joined to the proceedings. In general, such joinder is allowed upon consent of both parties and the arbitral tribunal. Similar provisions are provided by the rules of the Lewiatan Court of Arbitration.

7.6.1 Unless otherwise agreed by the parties, the arbitral tribunal shall decide whether to hold an oral hearing for the presentation of arguments and evidence, or to conduct the arbitral proceedings on the basis of documents and other materials only. ₆₁  If requested by a party and not agreed otherwise, the arbitral tribunal shall hold such hearings at an appropriate stage of the arbitral proceedings.

7.7.1 As mentioned in paragraph 7.1.2 above, it is obligatory for the claimant to file a statement of claim.  ₆₂  Where a claimant fails to file its statement of claim, the arbitral tribunal must terminate the arbitral proceedings without deciding on the merits of the dispute. ₆₃

7.7.2 If the respondent defaults in submitting a reply to the statement of claim (ie it fails to file a statement of defence), this does not prevent the arbitral tribunal from continuing with the arbitral proceedings but may not be deemed as admitting the facts included in the statement of claim. ₆₄

7.7.3 The default of any party to appear at a hearing or to submit documents that have been requested from it does not prevent the arbitral tribunal from continuing the arbitral proceedings and rendering an award based on gathered evidence. ₆₅

7.8.1 An arbitral tribunal may hear witnesses, and examine documents and other necessary evidence, but it may not compel the parties or third parties to provide evidence. ₆₆  In particular, an arbitral tribunal is not entitled to compel anyone to appear before it or fine anyone for failing to do so. However, the arbitral tribunal is entitled to ask the courts for assistance in obtaining evidence, as set out in section 9.4 below.

7.8.2 In practice, the IBA Rules of the Taking of Evidence in International Arbitration are often applied either directly or as a source of guidance for an arbitral tribunal, based on parties’ agreement or a reference included in a procedural order.  

7.8.3 The Rules on the Efficient Conduct of Proceedings in International Arbitration (Prague Rules) are rarely used in arbitrations seated in Poland.

7.9.1 Both party-appointed and tribunal-appointed experts appear in arbitrations seated in Poland. The former model is more frequently used in international arbitrations, or in matters with higher values of claims at stake.

7.9.2 In an ad hoc arbitration, the CCP explicitly states that unless the parties have agreed otherwise, the arbitral tribunal can appoint an expert or experts to obtain their opinions. The arbitral tribunal may also request the parties to provide the expert with requested information and documents. ₆₇  Unless the parties have agreed otherwise, at a party’s request or if the arbitral tribunal considers it necessary, the expert, after providing an opinion, will attend a hearing where the parties can ask questions or request explanations. ₆₈

7.10.1 Although confidentiality is regarded as one of the main characteristics of commercial arbitration, the CCP does not explicitly establish the confidentiality of arbitral proceedings. Therefore, for the avoidance of doubt, it may be advisable that the parties provide for the confidentiality of arbitral proceedings in their arbitration agreement.

7.10.2 The arbitral rules of the Court of Arbitration at the Polish Chamber of Commerce establish the confidentiality of arbitral proceedings.

7.10.3 The rules of the Lewiatan Court of Arbitration allow the President of the Court to publish the award (although anonymised) unless any party objects to publication within 14 days of receiving the award.

8.1 Choice of law

8.1.1 The parties are free to choose the substantive law applicable to the contract and governing the disputes arising from it or in connection with it. The Conflicts of Laws Act refers in this respect to Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I).

8.1.2 Parties may also authorise the arbitral tribunal to resolve their dispute on the principles of equity or in accordance with general principles of law. ₆₉  However, this requires “explicit authorisation” by the parties, which can be granted either in the arbitration agreement or through some other express agreement.

8.1.3 However, with regards to disputes arising from contracts to which a party is a ‘consumer’, resolving the dispute on the principles of equity or in accordance with general principles of law may not deprive the consumer of protection granted him by mandatory provisions of the law applicable to such a relationship. ₇₀

8.1.4 In all cases, the arbitral tribunal shall decide in accordance with the terms of the contract and shall take into account the specific nature of the trade applicable to the transaction. ₇₁

8.2.1 Unless a unanimous decision is required by the arbitration agreement, a majority of the arbitral tribunal is sufficient to make a valid award. ₇₂

8.2.2 In all procedural matters, the chair of the arbitral tribunal, if so authorised by the parties or all members of the arbitral tribunal, may decide upon questions regarding the procedure of the arbitral proceedings.

8.2.3 Any arbitrator who voted against the ruling may indicate, next to such arbitrator’s signature on the award, that a dissenting opinion is made, and may prepare a written statement of reasons within two weeks of drawing up the award. ₇₃  In practice, written dissenting opinions occur quite rarely. They are discretionary; the dissenting arbitrator has a right, but not an obligation, to produce a dissenting opinion. ₇₄  The dissenting arbitrator may also stop at making a note “votum separatum”, “v.s.”, “cum voto separato” or alike next to the signature.

8.3.1 An award must be made in writing and must include: ₇₅

• a reference to the arbitration agreement;
• the date of the award and the place where it was made;
• the names of the parties and the arbitrators;
• the decision on the claims of the parties;
• the reasons for the award; and
• the signatures of all the arbitrators (or a majority of the arbitrators if the case was judged by three or more arbitrators, with the reasons for the absence of other arbitrators’ signatures being stated in the award). 

8.3.2 The arbitral tribunal (in an ad hoc arbitration) or the court of arbitration (in an institutional arbitration) shall serve a copy of the award on both parties. ₇₆

8.3.3 In ad hoc arbitral proceedings, the arbitral tribunal must then file the records of the case and the original award (and proof that copies have been served) at the court. Such court documents are not publicly available. In institutional arbitral proceedings, these records are retained by the relevant arbitral institution. ₇₇

8.4.1 Based on the principle of party autonomy, it is possible for the parties to settle their dispute in the course of the arbitral proceedings. ₇₈

8.4.2 On request from the parties, the arbitral tribunal may provide an award by consent in accordance with the settlement. Awards issued in accordance with the settlement have the same effect and force as awards, including their res iudicata effects and the availability of the New York Convention’s regime for international recognition and enforcement. ₇₉  An award made on the basis of a settlement should conform to the requirements listed in paragraph 8.3.1 above and should contain a statement that it is an award. ₈₀

8.5.1 In an ad hoc arbitration, the arbitral tribunal shall discontinue the arbitral proceedings if:

• the claimant fails to submit a statement of claim within the prescribed time agreed by the parties, or in absence of the parties’ agreement in that regard, within the time specified by the arbitral tribunal; ₈₁
• the claimant withdraws the claim, unless the respondent opposes this withdrawal and the arbitral tribunal decides that the respondent has a justified interest in resolving the dispute; ₈₂  or
• the arbitral tribunal concludes that continuing with the arbitral proceedings is unnecessary or impossible for reasons other than the withdrawal of the statement of claim. ₈₃

8.6.1 The amount of the arbitrators’ fees, the allocation of costs between the parties or some other rules pertaining to costs of arbitration may be specified in the arbitration agreement, although this occurs rarely in practice. Such issues are included in institutional arbitral rules and appendices thereto containing specific provisions concerning the costs of arbitration.

 8.6.2 The CCP provides that in an ad hoc arbitration, the parties are jointly and severally liable for the payment of the arbitrators’ remuneration and reimbursement of their expenses. ₈₄  If the arbitrators and the parties cannot agree on arbitrators’ fees and expenses, the arbitral tribunal may apply to the relevant court for their determination in separate proceedings. The court will then decide on the amount of the arbitrators’ remuneration, taking into account the amount of time spent on the matter and reimbursable expenses. The court’s assessment and decision may be appealed.

8.6.3 In practice, in ad hoc arbitration, arbitrators often demand an advance on fees and expenses, which is typically held in trust by the arbitrators — usually the presiding arbitrator.

 8.6.4 Arbitral institutions, such as the Court of Arbitration at the Polish Chamber of Commerce, require the parties to pay fees in advance to the institution, which later transfers them to the arbitrators.

8.6.5 The costs of arbitration, including: arbitrators’ fees and expenses, parties’ costs for legal representation, expert opinions, etc., are dealt with in an arbitral award. There are no strict limits regarding the amount to be awarded, but the costs to be reimbursed must be justified.

8.6.6 The CCP does not address the allocation of the costs of the arbitration between the winning and losing party. Under the general rules of civil procedure that are applicable to court proceedings, the parties bear the costs of the proceedings in accordance with the proportion of their success or failure, as stated in the judgment. ₈₅  Although the arbitral tribunal is not bound by these rules, they are often applied by analogy in ad hoc arbitration.

8.6.7 In institutional arbitration, the “loser pays” rule is typically applied based on the explicit provisions of the arbitration rules (see for example §48(1) of the Rules of the Court of Arbitration at the Polish Chamber of Commerce).

8.7.1 Within two weeks of receipt of an award, unless another period of time has been agreed upon by the parties: ₈₆

• a party, with notice to the other party, may request that the arbitral tribunal corrects any error in calculation, any clerical or typographical errors, or any errors of a similar nature in the award; ₈₇  and
• a party, with notice to the other party, may request that the arbitral tribunal provides an interpretation of a specific point or part of the award. ₈₈

8.7.2 If the arbitral tribunal considers the request to be justified, it shall make the correction or give the interpretation within two weeks of receiving the request. The interpretation shall form part of the award.

8.7.3 The arbitral tribunal may correct any clerical or typographical errors on its own initiative within a month of making the award. The arbitral tribunal shall inform the parties of any such corrections. ₈₉

8.7.4 Unless otherwise agreed by the parties, within a month of receiving the award, one party, with notice to the other, may request that the arbitral tribunal makes a supplemental award on claims raised in the arbitral proceedings but omitted from the award. If the arbitral tribunal considers the request to be justified, it shall make the supplemental award within two months of the date of the request. ₉₀

8.7.5 If necessary, the arbitral tribunal may extend the period of time within which the parties may file a request for a correction, interpretation or supplemental award. ₉₁

9.1.1 In principle, a valid and binding arbitration agreement excludes the courts from the determination of disputes covered by such an agreement. As set out in paragraph ‎9.2.1 below, if the respondent properly objects to  the  court  action, the court shall reject a statement of claim that has been submitted in  relation to a dispute that is covered by an arbitration agreement.

9.1.2 However, in some cases it is necessary for the courts to act in order to ensure the effectiveness of arbitration as a dispute resolution mechanism. Such actions may even be taken before the arbitral proceedings commence. Usually, the courts will only intervene if the proper conduct of the arbitral proceedings is in some way jeopardised, or if a party refuses to satisfy an award voluntarily.

9.1.3 The CCP gives the courts jurisdiction to decide the following arbitration-related matters upon request of either party:

• the appointment of arbitrators or the chair of the arbitral tribunal, if the parties (or the arbitrators) fail to make such appointment themselves within the required period of time, or if an appointing authority does not make the appointment within the prescribed period or such period was not specified; ₉₂
• an appeal against the decision of the arbitral tribunal in the case of a challenge to arbitrators under specified conditions; ₉₃
• the determination of the arbitrators’ remuneration and of reimbursable expenses, if not determined by the parties; ₉₄
• other judicial assistance, such as securing the appearance of a witness before the arbitral tribunal; ₉₅
• the maintenance of ad hoc arbitration files following service of the final award on the parties; ₉₆  and
• the declaration of the enforceability of an award or a settlement. ₉₇

9.2.1 If one of the parties brings a dispute before the court, and the other party properly objects, then the court will reject the dispute without any consideration of the merits. The objecting party must reference the arbitration agreement and object before it involves itself in the merits of the dispute. ₉₈  

9.2.2 If one party brings the dispute before the court and the other party either does not object or engages in a discussion concerning the merits of the dispute, then the dispute may be determined by the court.

9.2.3 Traditionally, it was an established view that the party was not entitled to rely on an arbitration agreement in order to challenge the court's jurisdiction in conciliatory proceedings before the court (commenced by one party’s motion for an attempt for a settlement). More recently, however, there have been a few decisions where the court rejected a party’s motion for a commencement of the conciliatory proceedings due to the other party’s objection that there was a binding arbitration agreement between the parties. As the motion for conciliatory proceedings suspends the running of a limitation period, its failure may have material consequences for the parties' claims.

9.3.1 Regardless of the existence of any pending arbitral proceedings, a party may apply to the courts and request interim measures. An injunction may be granted in accordance with the relevant general provisions of the CCP. Such applications may be allowed notwithstanding the existence of an arbitration agreement and may be made irrespective of whether arbitral proceedings are pending in Poland or abroad.

9.3.2 A state court may order any type of interim measure that is permissible under the law before or after arbitral proceedings are initiated. If a party’s request for an interim measure is granted by a state court before the commencement of arbitral proceedings, the requesting party has to initiate arbitration within the time specified by the court, which will be  no longer than two weeks. If the requesting party fails to do so, the interim measure will automatically expire.

9.4.1 The arbitral tribunal is entitled to ask the courts for assistance in summoning witnesses, document production or other taking of evidence actions. ₉₉  Upon such a request, the court shall summon the witness to appear before the arbitral tribunal and, should such a person fail to do so, the court may administer a fine and even ask the police to bring that person to the hearing. Recourse to the courts is relatively rare in practice.

10.1.1 The only judicial remedy against an award is an application to set aside an award. Where the parties have agreed to allow appeals within arbitral proceedings (which is extremely rare), an aggrieved party may only apply to set aside the final award resolving the claims between the parties. ₁₀₀

10.2.1 An action to set aside an award should be filed with the courts and meet all the requirements prescribed for in the statement of claim. ₁₀₁

10.2.2 An award may be set aside on the following grounds:

• there was no arbitration agreement, or the arbitration agreement was invalid or became inoperative;
• a party was not properly notified of the appointment of an arbitrator or of the arbitral proceedings, or was otherwise deprived of the possibility to defend its rights before the arbitral tribunal;
• the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not submitted, the part of the award which contains decisions on matters submitted to arbitration may be recognised and enforced;
• the fundamental rules of procedure, as determined by the parties or by statutory provisions, in particular, by the provisions relating to the composition of the arbitral tribunal, were not observed. However, a party may not raise an objection on the grounds of a violation of the provisions of the CCP relating to procedure before the arbitral tribunal, and may not challenge the award on such grounds if that party failed to raise the objection immediately upon its notification or within such time as set by the parties; ₁₀₂
• the award was issued as a result of a crime, or a document that formed the grounds for the award was falsified or forged; or
• there is already a judgment with force of law in the case. ₁₀₃  

10.2.3 Moreover, the court may also set aside an award if it finds that:

• the subject matter of the dispute is not capable of settlement by arbitration;
• the award is contrary to the fundamental rules of Polish public policy; ₁₀₄  or
• the award deprives the consumer of the protection granted to him or her by the mandatory provisions of law applicable to the contract to which the consumer is a party, and when the law applicable to the contract is the law chosen by the parties – protection granted to the consumer by mandatory provisions of law that would be appropriate in case the parties did not choose which law would be applicable. ₁₀₅

10.2.4 An action to set aside an award should be filed with the court of appeal, in whichever territory there is a court that would be competent to hear the case, if the parties did not conclude an arbitration agreement – and in the absence of such basis – to the Warsaw Court of Appeal, within two months of the date of service of the award or if the party has requested a supplement, correction or interpretation of the judgment – within two months from the date of delivery by the arbitral tribunal of the decision determining the application (the rules concerning service are set out in section 7.3 above). ₁₀₆  If the action is justified by the fact that the award was issued as a result of a crime, if a document that formed the basis of the award was falsified or forged, or there was already a judgment with force of law in that case, then the party may file an action to set aside an award within two months of the discovery of one of these facts, but not later than five years after delivery of the award. ₁₀₇

10.2.5 A party dissatisfied with a judgment of the court of appeal may then file a cassation complaint with the Supreme Court. Following issue of a final judgment on whether an award be set aside (be it a decision of the Supreme Court or the court of appeal), in limited circumstances (eg judge corruption or violation of human and citizen rights), a party can challenge such a judgment only by filing a request for the resumption of proceedings or request to find that the final judgment was unlawful, which may lead to annulment of the judgment previously upholding or setting the award aside. ₁₀₈

10.2.6 When asked to set aside an award, the court may, where requested by a party, suspend court proceedings for a determined period of time to allow the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action that may eliminate the grounds for setting the award aside. ₁₀₉

10.2.7 Formal requirements of an appeal before the court shall be applied accordingly to an action to set aside the award. ₁₁₀

11.1.1 For an arbitral award to have the same legal force as a state court judgment, the court must recognise the award and grant an exequatur declaring the award to be enforceable. If the award is not subject to enforcement (eg it confirms the existence of a right), the court determines whether the award shall be recognised. The provisions of Title Eight of the Fifth Part of the CCP relate to the same extent to awards rendered in Poland and abroad, unless the award was rendered in a country which is a signatory of the New York Convention. In the latter case, the New York Convention prevails over the rules of the CCP. ₁₁₁

11.2.1 The court recognises or declares the enforceability of an award upon a motion from a party. The party must present the court with original or certified copies of the award and the arbitration agreement. In declaring the enforceability of the award or recognising the award, the court will not review the merits of the case, but will only check the records filed by the arbitral tribunal at court to see whether the subject matter of the dispute was capable of settlement by arbitration, and whether the recognition or enforcement of the award would be contrary to the fundamental rules of Polish public policy. The last condition is described as a “public order clause” in article 1214(3) (2) of the CCP. Also, specifically in relation to disputes with consumers, the court will also check whether the award (or settlement) waives any consumers’ protection awarded by binding provisions of law. In the case of foreign arbitration, the court makes the examination based on the documents provided by the requesting party, (ie the arbitration agreement and the award).

11.2.2 A foreign award may be recognised or declared enforceable only after conducting a hearing before the court recognisingenforcing the award. ₁₁₂  Domestic awards may be recognised at a closed session, that is, without the parties present, and may be declared enforceable by granting exequatur through a simplified procedure described in and regulated by articles 781–795 of the CCP. Exequatur is granted to the awards that are enforceable, while the awards that are not enforceable are only recognised (and thus they are not granted with exequatur).

11.2.3 Based on the CCP, the court may only refuse to recognise or declare enforceable a foreign award in the situations described above and, upon a motion from a party, if it is shown that:

• there was no arbitration agreement, or the arbitration agreement was invalid or became inoperative;
• a party was not properly notified of the appointment of an arbitrator or of the arbitral proceedings, or was otherwise deprived of the possibility to defend its rights before the arbitral tribunal;
• the award deals with a dispute not contemplated by, or not falling within, the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not submitted, the part of the award which contains decisions on matters submitted to arbitration may be recognised and enforced;
• the composition of the arbitral tribunal or the arbitration procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or
• the award has not yet become binding on the parties, or has been set aside or suspended by a court of the country in which, or under the law of which, that award was made. ₁₁₃

11.2.4 The above CCP rules of recognising and enforcing foreign awards apply only to awards from non-signatories to the New York Convention. As noted in Section 1 above, Poland is a party to the New York Convention, the 1961 European Convention and some bilateral treaties which oblige Poland to recognise and enforce foreign awards.

12.1.1  In general, arbitration agreements contained in contracts concluded with consumers are allowed under Polish law. However, if the arbitration agreement is contained in general conditions or in a contractual document that has not been individually negotiated with the consumer, it is deemed to be an abusive clause and, as such, has no legal effect. ₁₁₄

12.1.2 Moreover, as mentioned in paragraphs 4.1.3, 10.2.3 and 11.1.2 above, there are specific regulations regarding disputes arising from contracts to which one of the parties is a consumer.

12.1.3 In Poland, there are arbitration courts that specialise in consumer disputes, including Permanent Consumer Arbitration Tribunals (Stałe Polubowne Sądy Konsumenckie) acting as units of the state Trade Inspection (Inspekcja Handlowa). There are also arbitral tribunals acting in specific sectors (eg Banking Consumer Arbitration) that can decide on a dispute in which consumers are involved. 

12.2.1 Employment disputes may be subject to an arbitration agreement, provided that the agreement is explicit, made in writing and only concerns an existing dispute. ₁₁₅