Excerpt from Introduction (B. Gessel-Kalinowska vel Kalisz):
The most straightforward way to define arbitration is to state that conflicted parties jointly designate a third party tasked with rendering a judgement providing a resolution to the dispute at hand. Even at an intuitive level one remains aware that we are discussing the most long-established method of dispute resolution which has been invented a few thousand years ago. Arbitration is a method of dispute resolution which continues to develop in free societies.
As described by J. Paulsson, arbitration represents a political philosophy based on the assumption that citizens should be free to shape their private relations as they see fit, subject, obviously to the coercive rules of law (ius cogens) and principles of the public order. The more the political system of a given state edges towards totalitarianism, the less convenient arbitration becomes, since it fails to secure the central planning of specific areas of activity.
Poland may serve as an excellent example here. Prior to the fundamental changes in our political system in 1989, arbitration was not available with respect to domestic legal relations, to state- or cooperative-owned enterprises, constituting economic sector of that time. Disputes in this area were resolved by Państwowy Arbitraż Gospodarczy (State Economic Arbitral Institution), which, however, was simply one of state judicial authorities and had little to do with actual arbitration, save perhaps for its name. A. W. Wiśniewski submits that permitting an arbitration court to make judicial rulings in those days was perceived as an exceptional concession on the part of the government, while arbitration itself was seen as an institution posing a danger to both its users and the legal order as such. The political transformation which took place more than two decades ago has caused the perception of arbitration to change, followed by changes of the legal infrastructure in this field.
At this point, it is worth to briefly analyze the evolution of the contemporary Polish arbitration law. Its development may be divided into two stages. The first stage was initiated by the aforementioned changes which took place in 1989, opening up the possibility for settlement of disputes before an arbitration court to any person of law in Poland. The second stage begun with the amendment of 2005, providing for the addition of the fifth part to the Code of Civil Procedure, dedicated to the issue of arbitration. The newly enacted provisions adjusted the Code of Civil Procedure to international standards contained in the 1985 UNCITRAL Model Law. Today, there is no doubt that Polish arbitration law generally deserves to be called a thoroughly modern set of rules which complies with the applicable international standards. One year after the Polish novelization of 2005, on July 7, 2006, the United Nations Commission on International Trade Law adopted an amendment to the Model Law, adjusting its provisions to the changing requirements of contemporary global trade exchange. Changes made to the provisions of the Model Law reflect the overall tendency discerned in both international law and in the legislation of other states, aimed at ensuring the liberalization of regulations pertaining to arbitration or the more liberal interpretation of existing provisions. The Polish legislator, however, did not choose to modify the provisions of Part V of the Civil Procedure Code in order to adjust it to the amended Model Law, even though such an option is definitely worth considering. Legal commentators suggest to amend arbitration law in order to lift the restrictions pertaining to the recognition of disputes. (…)
The aim of the present publication is to contribute towards the commencement of a broad discussion on the need for legislative change of the arbitration law in Poland. The present publication has been divided into parts which refer to the structure of Part V of the Code of Civil Procedure; for the above reason, the matters specified below shall be discussed in the following order: general issues, arbitration agreement, composition of the arbitration court, jurisdiction of the arbitration court, proceedings before the arbitration court and awards rendered by such court as well as the jointly discussed issues of post-arbitration proceedings pertaining to claims for annulment of the arbitral award as well as proceedings pertaining to the recognition and performance of arbitral awards. With respect to each issue, the authors of this publication have compared the regulations contained in the Code with the provisions of the Model Law in its 2006 iteration (as well as, in some cases, with the legislation of other countries), subsequently proceeding to analyze the existing case law and preparing commentaries to selected court judgements. Each section of the present publication ends with a list of issues which, according to each respective author, should be the subject of extensive discussion.
The authors represent a variety of academic backgrounds: the Leon Koźmiński Academy, the Jagiellonian University, the Silesian University, the Adam Mickiewicz University in Poznań, the Wrocław University and the Cardinal Stefan Wyszyński University. However, the aim of the present publication has never been to produce a consistent position with respect to individual issues, even though many of those issues were discussed during preparatory works. We hope that the present publication will serve as the foundation for further debate on the proposed changes to Part V of the Code of Civil Procedure.
The publication has been issued within the framework of the Project “Competitiveness of Arbitration” co-financed by the European Union within the European Social Fund, and can be obtained free of charge.
We cordially invite you to familiarize yourselves with this publication!