POLAND Law and Practice Contributed by: Justyna Kucia, Katarzyna Paczuska-Tokarska, Barnaba Skibniewski and Anna Tujakowska, Sołtysiński Kawecki & Szlęzak
• An arbitration agreement must specify the subject matter of the dispute or the legal relationship from which the dispute has arisen or may arise. • An arbitration agreement concluded with a con - sumer must indicate that the parties are aware of the effects of that agreement – in particular that the arbitral award, once recognised by a state court, will have the same force as a judgment of a state court. • An arbitration agreement contained in the articles of association relating to cases involving a chal - lenge to a shareholders՚ resolution must provide for an obligation to announce the commencement of the proceedings in the manner required for com - pany notices no later than one month after the start of the proceedings. • Moreover, provisions of an arbitration agreement that violate the principle of equality of the parties ‒ in particular provisions that entitle only one party to bring an action before the arbitration ‒ are ineffec - tive. • In some cases, an arbitration agreement cannot cover future disputes but must be entered into in relation to a specific, already-existing dispute. This applies to disputes with consumers and labour disputes. 3.2 Arbitrability Under Polish law, all disputes over material (eco - nomic) claims are arbitrable and can be subject to arbitration. The only exception are disputes over child support (alimony), which are not arbitrable and cannot be heard in arbitration. Disputes over non-material (non-economic) rights are arbitrable only if such non-material right might be a subject of a court settlement – the decisive factor is therefore whether a party can independently dispose of the right to which the dispute relates. For this rea - son, disputes concerning, inter alia, marital relations, parental authority or civil status are not arbitrable. 3.3 National Courts’ Approach The New York Convention and the European Con - vention, both of which Poland is a party to, play an important role in determining the law governing the arbitration agreement. Pursuant to Article V(1)(a) of the New York Convention, the parties may choose the
law governing the validity of arbitration agreement, and if they fail to do so, the validity of the arbitration agreement shall be assessed in accordance with the law of the state in which the arbitral award was made (lex fori). According to Article VI(2) of the European Convention, the law governing the validity of an arbi - tration agreement is: • the law chosen by the parties; • the law of the country where the arbitral award is to be issued ‒ if the parties have not chosen any law; or • the law determined in accordance with the conflict of law rules applicable in the country of the court hearing the case. When neither the New York Convention nor the Euro - pean Convention apply, one must resort to national law, namely Polish Private International Law (PIL). PIL distinguishes between the law applicable to the merits of an arbitration agreement and the law governing the form of the arbitration agreement. As regards the law governing the merits of the arbitra - tion agreement, PIL indicates that, in the first place, it is the law chosen by the parties that is applicable. If the parties have not chosen the applicable law, the lex fori is applicable. If the parties have chosen neither the applicable law nor the place of arbitration, the arbitra - tion agreement is governed by the law applicable to the legal relationship to which the dispute relates. In such a case, however, it is sufficient that the agree - ment is effective under the law of the state in which the proceedings take place or the arbitral tribunal has rendered its award. The form of the arbitration agreement shall be gov - erned by the law of the state of the place of arbitration. However, it is sufficient that the arbitration agreement meets the form requirements of the law applicable to the merits of the arbitration agreement. Enforcement of Arbitration Agreements Polish courts uphold arbitration agreements robustly, reflecting a pro-arbitration stance. The judiciary’s approach aligns with the New York Convention on the Recognition and Enforcement of
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