POLAND Law and Practice Contributed by: Justyna Kucia, Katarzyna Paczuska-Tokarska, Barnaba Skibniewski and Anna Tujakowska, Sołtysiński Kawecki & Szlęzak
Foreign Arbitral Awards, to which Poland is a signa - tory. Grounds for refusing enforcement are interpreted narrowly, in line with the international standards. 3.4 Validity Polish law applies the rule of separability to arbitration agreements. The CPC expressly provides that invalid - ity or extinction of the main contract containing the arbitration agreement does not in itself entail invalidity or extinction of the arbitration agreement. There are a few restrictions concerning the appoint - ment of arbitrators. Firstly, the CPC states that pro - visions in an arbitration agreement granting one of the parties more powers when appointing an arbitral tribunal are ineffective. Secondly, the arbitrator must be a natural person (an individual) and have full legal capacity. Lastly, the parties may not appoint a state judge as arbitrator, with the exception of retired judg - es. 4.2 Default Procedures 4. The Arbitral Tribunal 4.1 Limits on Selection Polish law allows the parties to choose for themselves how arbitrators are to be appointed and gives them wide discretion in this regard. If the parties agree that the arbitrator is to be appoint - ed by a third party, but this procedure fails and the designated third party does not appoint the arbitrator in a timely manner, then either party can ask the state court to appoint the arbitrator. However, it is not clear what happens if the parties agree that the arbitrator will be appointed in a differ - ent way than by a third party and this procedure fails. While Polish law does not explicitly say what happens in such a situation, two possibilities have been identi - fied by the legal authorities. Firstly, it can be assumed that the arbitration agreement becomes unenforce - able. Secondly, it can be assumed that one should apply, per analogiam, the CPC’s standard procedure for appointing an arbitrator in the absence of the par - ties’ chosen method of appointment. The latter solu - tion seems more reasonable and thus preferable, but
jurisprudence has not yet clearly determined which of these solutions prevails. The aforesaid difficulties with determining the conse - quences of the failure of the parties’ chosen method of appointment will not emerge if the parties have agreed on the substitute appointment procedure. This can be done expressly or by agreeing that the dispute will be decided in accordance with one of the arbitral institu - tion’s arbitration rules, which provide for a substitute appointment procedure. In the case of multiparty arbitration, Polish law pro - vides that the persons acting jointly on one side of the dispute appoint the arbitrator unanimously, unless the arbitration agreement provides otherwise. 4.3 Court Intervention If the parties do not agree on the method of appoint - ment of the arbitrators, the CPC’s standard proce - dure applies. In the course of this procedure, a party should appoint an arbitrator within one month of the request by the other party to do so. If they fail to com - ply with this obligation, the other party may request the appointment of an arbitrator by the state court. When appointing an arbitrator, the state court shall take into account the qualifications that the arbitrator should have pursuant to the agreement of the parties and other circumstances that ensure that an inde - pendent and impartial person is appointed as arbitra - tor. If the court is to appoint either a sole arbitrator or a presiding arbitrator in a dispute between parties from different countries, the court should consider the need to appoint a person not connected with any of those countries. 4.4 Challenge and Removal of Arbitrators The CPC provides for excluding an arbitrator by a common court. If the arbitrator is not excluded by the arbitral tribunal within one month of the party’s request for exclusion, the party can request the court to exclude the arbitrator. The time limit for submitting the request to the state court is two weeks from the expiry of the one-month period for the exclusion of an arbitrator before the arbitral tribunal.
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