7 steps of proceedings before the Court of Arbitration at the PCPE Lewiatan
Prepared by: Beata Gessel – Kalinowska vel Kalisz, Paweł Pietkiewicz
In the past, arbitration courts served primarily merchants. Although, over the years, the naming has changed, the Court is now serving entrepreneurs, the idea has remained the same. Proceedings before an arbitration tribunal must be fast, foreseeable and high standard ones, this being a need of today’s entrepreneurs. They are also required to be one hundred percent amicable. In other words, they must be aimed at such a dispute resolution that, after the award, the parties can still do business together. Below, in seven steps, we present how an entrepreneur can benefit form having an action carried out before the Lewiatan Arbitration Court.
Step 1: Arbitration clause
You enter into a contract. You do not intend to get involved in any dispute. Nevertheless, just in case, you provide your contract with the following arbitration clause: "All disputes arising out of or in connection with the present contract shall be finally resolved under the Rules of the Court of Arbitration at the Polish Confederation Lewiatan in Warsaw, Poland by one or more arbitrators appointed in accordance with the said Rules." You may modify the clause to some extent. In particular, you may choose that the dispute be resolved by one arbitrator, which will reduce the costs of proceedings.
Step 2: Statement of claims; appointment of an arbitrator
Unfortunately, a dispute arises in connection with the exercising of the contract. You have to prepare a statement of claims in which you specify your demands, indicate supporting evidence, make reference to the arbitration clause, and appoint one arbitrator. You select an arbitrator from among people you trust who are familiar with the problematic issue of the case, at the same time being impartial and independent. The list of arbitrators, available on the Court’s website under “About court”, may be helpful. You can find there a short bio of each arbitrator. You may select an arbitrator who specializes in a particular field through a search tool on the website. You may also select a person from outside. You send the statement of claims using the Court’s mailing address.
Step 3: Arbitration costs
Upon Court’s request, you pay the arbitration fee and the administration fee. You may calculate approximate total fee, using the Calculator and the Table of fees (both on the Court’s website). Relevant fee payment will trigger further steps to be taken by the Court, such as the Court Secretariat’s service of the statement of claims on the other party. After conclusion of arbitration proceedings, the arbitral tribunal will award such amount of arbitration fees to you as is pro rata to the amount you have won. Keep in mind that the tribunal does not have to award to you the whole amount of the costs of your legal representation in the proceedings.
Step 4: Statement of counterclaims and appointment of the rest of arbitrators
After the other party of the dispute receives the statement of claims, he/she is entitled to submit a statement of counterclaims and appoint a second arbitrator. If he/she does not do that, an arbitrator will be appointed by of the Nominating Committee form among the arbitrators in the list. The list of current members of the Nominating Committee is available on the Court’s webpage under “Governing Bodies”. The arbitrator appointed by you, although not being obliged to do so, may consult with you the appointment of presiding arbitrator. This will be the last time when the arbitrator will be allowed to contact you with regard to the matters concerning the dispute outside the trial room, and this requirement will be observed until the end of the proceedings. More detailed rules regarding arbitrators in our Court are available under “Regulations”, where you can find the relevant code of ethics. We require that our arbitrators represent high standard ethics. That is why, in addition to other things, you can trust them.
Step 5: Trial
Alike in the civil courts, at a trial, an arbitral tribunal examines the case, analyzes the evidence, hears witnesses. However, there are a few significant differences. In arbitration, there is no limitation of evidence, although a presiding arbitrator has the power to fix a date after which no evidence would be accepted; the parties may agree the manner in which the proceedings to take evidence are to be conducted, e.g. they may decide to use services of private expert witnesses or even to have them heard by the arbitral tribunal. The trial is held rather as a meeting. The participants are: the arbitrators, you, your opponent and your counsels. Third parties are not allowed to attend the trial. The arbitrators undertake to keep the information about the trial confidential. Thus, nobody from outside can be familiar with the dispute as such, with the course of relevant proceedings or the result.
Step 6: Award
Upon arbitral tribunal’s clarification of the case to the extent being sufficient for material resolution, the arbitral tribunal issues an award. The award is not appealable. Although it is possible to request a common court to set the award aside, in practice, it is very difficult since the legal bases to be referred to are few. After receiving the award you have to request a common court to recognize it or to ascertain its enforceability. It is not a complicated procedure and usually it does not take long. Additionally, the arbitral award can be enforced in almost every state in the world, since 144 states, including Poland, are signatories of the New York Convention (1958) allowing recognition and enforcement of foreign arbitral awards.
Step 7: Enforcement (execution)
Having obtained the award with the enforcement clause appended to it, you are entitled to refer it to enforcement officer, unless the other party agrees to enforce it voluntarily.