POLAND Law and Practice Contributed by: Karol Tatara, Paweł Kuglarz, Anna Czarnota and Mateusz Kaliński, Tatara & Partners Restructuring & Insolvency Law Firm
6. Cross-Border Issues in Insolvency 6.1 Sources of International Insolvency Law Since the Republic of Poland is an EU member, the EU Regulation 2015/848 applies to the recognition of proceedings. Poland also has numerous bilateral agreements with other countries recognising insolvency and restructur - According to EU regulation, the court where the centre of main interest (COMI) is situated can open an insol - vency or restructuring procedure. 6.3 Applicable Law The COMI criteria set a standard to determine appli - cable law. Under the EU Regulation 2015/848, the key factor is the COMI, which is the place where the debtor con - ducts the administration of its interests on a regular basis and which is ascertainable by third parties. The main insolvency proceedings will take place in the COMI country, while secondary insolvency pro - ceedings will take place in other countries where the debtor has assets. ing proceedings. 6.2 Jurisdiction The law applicable to insolvency proceedings and their effect is that of the member state where such proceed - ings are opened, with the following exceptions: • rights in rem; • set-off; • reservation of title;
With regard to other countries, recognition is granted when proceedings concern a case which does not exclusively belong to the jurisdiction of Polish courts, and when such recognition is not contrary to the basic rules of the legal order in the Republic of Poland (ordre public clause). 6.5 Co-Ordination in Cross-Border Cases Judicial co-operation and co-ordination with foreign courts exist under the EU Regulation 2015/848, which is in full force in Poland. With regard to non-EU countries, neither the Bank - ruptcy Law nor the Restructuring Law provide for such co-ordination, as there are rules on communication but no formal procedure of statutory-based co-operation. 6.6 Foreign Creditors In Poland, foreign creditors differ practically only in one aspect with regard to insolvency and restructuring proceedings – they have longer time limits and dead - lines for some legal actions, and they need to appoint a service agent in the Republic of Poland, unless they hire an attorney-at-law admitted to practise in Poland. 7. Duties and Liability of Directors and Officers 7.1 Duties of Directors In Poland, the directors of the debtor company also have duties towards the company’s creditors. Most of these duties concern filing the bankruptcy petition. Directors perform their duties for the benefit of all creditors, yet some of these duties may have a differ - ent legal basis. Directors may be held liable for pre- insolvency debts, and sometimes, according to Polish Supreme Court judgments, also for post-commence - ment debts if the bankruptcy petition was delayed. 7.2 Personal Liability of Directors Under Polish law, creditors are entitled to assert fidu - ciary breach claims directly against directors. 7.3 Duties and Personal Liability of Officers Officers, especially shadow directors, can be held liable for the banning of business activity. The prereq -
• contracts relating to immovable property; • payment systems and financial markets; • employment; • patents and trade marks; and • detrimental acts. 6.4 Recognition and Enforceability
With regard to the recognition and enforcement of for - eign judgments within EU countries, the EU Regula - tion 2015/848 applies.
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