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Arbitration

The Supreme Court was asked to consider whether arbitral tribunals should be bound by previous arbitral awards issued between the same parties and recognised by Polish courts. In its ruling, the court adapted the res judicata principle to arbitration by allowing arbitral tribunals to decide on a case-by-case basis whether they should follow previous arbitral awards issued between the same parties.

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Asset Finance

Including: Taxation; Legislation; Accounting; International Leasing.

Banking

Overview
Including: Recent Reform; Types of Banks; National Bank; Monetary Policy Council; Regulation of Banking Activity; Banking Supervisory Commission; Bank Guarantee Fund; Mortgage Banks; Acquiring Shares in an Existing Bank; European Union Impact

Some of the provisions of the amended Banking Law will become binding upon Poland's accession to the European Union. Regulations relating to credit risk concentration, shareholders equity and consolidated supervision will apply from 2002.

The size and number of Polish syndicated loans is increasing annually. The main beneficiaries of syndicated loans are the major Polish companies, particularly shipyards and the telecommunications and energy industries.

The Act Amending the Bonds Act provides long-awaited clarification on the issuing of bonds by banks. Previous discrepancies between the Banking Law Act and the Bonds Act meant that a bank had no legal means of issuing bonds in accordance with the provisions of the latter. The amending act also introduces significant changes concerning the entities entitled to issue bonds.

New legislation aimed at protecting consumer rights will affect banking agreements that are conducted outside the bank's premises and has implications for standard forms and contractual provisions.

Commercial Property

The consequences of the financial crisis are already being witnessed in the form of bankrupt entrepreneurs and enterprises. The consequences of a tenant's bankruptcy for an existing lease or tenancy agreement will be of significant interest to landlords, which should be aware of their rights in such cases. For instance, can a landlord terminate a lease agreement before bankruptcy proceedings have been completed?

Parliament is currently considering revolutionary amendments to the Building Law. The proposed regulations provide for extensive amendments in respect of the construction and development processes. The main purpose of the amendment is to facilitate the investment process and make it less formalized - developers will no longer need to obtain a building permit to carry out an investment project.

After joining the European Union in May 2004, Poland became bound by the EU Energy Performance of Buildings Directive and should have implemented the principles set out in the directive by January 2006. Partial implementation was achieved in September 2007 when an amendment to the Building Law was adopted, introducing a number of provisions regarding the assessment of the energy performance of buildings.

An amendment to the Civil Code recently came into force, introducing a new limited property right to Polish law: the utilities easement. The introduction of such a utilities easement establishes a legal framework for utility providers to access and use third-party land, clarifying legal uncertainty that has existed for many years.

The right of perpetual usufruct is peculiar to Poland and, as a particularly common form of title to land, is of particular legal importance in many real estate transactions. Among other limitations regarding the transfer of such title, the timing of a submission for registration of perpetual usufruct is particularly significant.

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Company & Commercial

Overview
Including: Legislative Framework; Forms of Business Organization; Foreign Investors; National Court Register; Framework.

In response to the EU Directive on the Exercise of Certain Rights of Shareholders in Listed Companies, Parliament recently adopted an important amendment to the Commercial Company Code. Its main purpose is to enhance corporate governance in Polish joint stock companies by strengthening and facilitating the exercise of shareholders' rights.

A relatively high minimum share capital requirement has long been considered an effective tool to safeguard the interests of creditors in dealings with capital companies. However, this approach has recently been revised due to pressure from legal and commercial commentators and researchers. Following in the footsteps of recent EU legislation, changes have been made to Polish law in a bid to promote entrepreneurship.

Parliament is working on an amendment to the Commercial Company Code that will provide for the liberalization of regulations regarding commercial partnerships. The draft amendment involves the elimination of restrictions on conducting larger-scale business in the form of a civil law partnership and the limitation of liability of commercial partners that enter into a commercial partnership with a sole proprietor.

The government recently presented to Parliament an important draft amendment to the Commercial Company Code aimed at helping limited liability and joint stock companies in their day-to-day operations. This update looks at the key changes envisaged by the amendment.

Parliament recently issued an important draft amendment to the Polish Civil Code. The amendment provides for the elimination of the currency clause from Polish civil law, which requires all monetary obligations under Polish law to be performed in Polish currency.

EU regulations oblige member states to make the information on limited companies contained in their registers available to the public in digital form by January 1 2007. Therefore, the Central Information Office of the National Court Register is to extend its services to accept and hold company data in digital form.

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Competition

The Competition Authority recently launched a sector inquiry into restaurant chains that operate under a franchise model. The authority intends to check whether prices for consumers are determined independently by the franchisees running the restaurants. The launch of the proceedings came as a surprise to the business community, although feedback concerning these developments has been limited thus far.

The participation of companies in a consortium can be considered an anti-competitive practice, the Competition Authority recently ruled. This is the first time that the authority has qualified cooperation within the framework of a consortium as an infringement of competition rules. However, no fines were imposed due to the precedential character of the case.

The Competition Authority recently fined IMS Sofa Sp z oo for price-fixing arrangements with its distributors between 2003 and 2012. The fine was reduced by 50% on account of the leniency application that IMS Sofa had submitted. No distributors were fined for the infringement. It is difficult to assess at this stage whether this policy of penalising a supplier only will be followed in future.

The Competition Authority announced its decision to fine Polskie Górnictwo Naftowe i Gazownictwo SA (PGNiG) - Poland's largest domestic gas producer and supplier - PLN60 million (approximately €14.4 million) for alleged abuse of its dominant position. The authority stated that PGNiG had restricted entry to the gas market by refusing to enter into a gas supply agreement with NowyGaz Sp z oo.

The Competition Authority recently announced plans for amendments to the Competition and Consumer Protection Act 2007. If the new bill is enacted by Parliament, the changes will affect, among other things, merger control rules and antitrust enforcement under the act. In the authority's opinion, the proposed changes are essential to enhancing enforcement of the act and increasing legal certainty for businesses.

The Competition Authority has fined a leading insurer, Powszechny Zakład Ubezpieczeń SA (PZU), and insurance broker Maximus for alleged market collusion. PZU descibed the fine imposed on it as "staggering". While recent authority decisions reinforce the trend to impose strict fines, there is also a marked tendency by Polish courts to verify in much closer detail whether such high fines are justified.

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Corporate Finance/M&A

Overview
Including: Merger Regulation; Acquisition Regulation; New Corporate Code; Foreign Investment Law; Law on Acquisition of Real Estate by Foreigners; Antimonopoly Law; Privatization Law; Other Statutory Restrictions

The Polish president recently approved two new pieces of legislation enacted by Parliament which are aimed at incorporating EU Directive 2005/56/EC into Polish national law. Both acts will finally allow for cross-border mergers involving Polish limited liability companies, joint stock companies and joint stock limited partnerships.

The Polish Parliament is working on an amendment to the Commercial Company Code, which involves liberalizing the rules on a joint stock company's acquisition of its own shares. The amendment will introduce exemptions from certain restrictions which so far have thwarted leveraged buy-outs of joint stock companies in Poland.

In October 2005 Brussels responded to strong business demand to enable mergers between companies from different EU member states by passing Directive 2005/56/EC. The directive has remained a paper tiger in Poland to date, thwarted by Polish legal obstacles; however, this looks set to change as draft legislation designed to give it teeth has been put forward.

Cash pooling is an instrument that enables affiliated companies to minimize interest expense by offsetting debit positions on bank accounts of some of the companies participating in the cash pool with credit positions on the bank accounts of others. While popular all over the world, this process is still under-used in Poland due to a lack of clear regulations.

The concept of a warranty is not Polish by origin, and therefore is not automatically recognized by Polish law. The parties to an acquisition agreement must clearly explain how the warranties included in the contract should be construed and, more importantly, must expressly describe the manner in which the warranties will operate in the relationship.

The Supreme Court has ruled on the admissibility of a last-resort appeal against a decision regarding a company merger. The court emphasized that the key question was the legal character of the register entry of the merger, which took place by way of a transfer of all the company's assets to the acquiring company.

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E-commerce

Overview
Including: E-contracts; Relevant Laws; Consumer Protection; Privacy

The main effect of the Electronic Signature Law will be to give electronic signatures the same legal status and validity as their handwritten counterparts.

The draft e-signature law gives electronic and handwritten signatures equal legal effect. However, the law relates only to e-signatures covered by qualified certificates and has been widely criticized because the draft does not take adjustment of the provisions of civil law into consideration.

On July 1 2000 new legislation on important consumer protection issues will become effective in Poland. The distance contracts regulations included in the new law may make e-commerce more difficult, but they reflect the level of consumer protection adopted in the European Union.

All three exchanges in Poland are considering amending their strict by-laws in order to give budding internet companies access to the markets.

Employment & Labour

Following an employer's instructions is one of the basic obligations of an employee. The Labour Code does not explicitly state the consequences of an employee following unlawful instructions or adhering to unlawful practices applied at the workplace. Such actions could clearly expose the employee to potential liability under criminal or administrative law, but the consequences under employment law are less obvious.

The Supreme Court recently confirmed a new approach to analysing the consequences of a trade union's failure to notify the relevant employer of the number of union members among its employees in a timely manner. The approach provides a better balance between protecting the rights of a trade union and protecting the employer from negative consequences resulting from the union's negligence.

The Supreme Court has ruled on the reinstatement of a dismissed management board member to his job. The court distinguished between the corporate relationship and the employment relationship between the management board member and the company. The decision should end discussion of whether the Commercial Companies Code regulations affect the claims available to employees under the Labour Code.

The Supreme Court recently ruled on the role of company trade union organisations in termination decisions. The court ruled that under certain circumstances, the failure on the part of the company trade union organisation to provide information requested by the employer did not release the employer from the obligation to notify the organisation of its intention to terminate an employee's contract.

The International Labour Organisation has provided the Polish government with recommendations that it change the legislation concerning employees' freedom of association. Following these recommendations, the government should amend labour legislation to ensure that the right to establish and join trade unions is granted not only to 'employees' in the sense of the Labour Code, but also to other categories of worker.

In the absence of Labour Code regulation, the rules for receiving bonuses are largely determined by decisions of the Supreme Court. A significant change in court practice sheds light on the question of whether incomplete performance of a bonus-related task entitles an employer to withhold an employee's bonus in full.

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Energy & Natural Resources

The Sejm - the lower house of the Polish Parliament - recently ratified the Act on Taxation of the Extraction of Certain Minerals. The act presents a new approach to the taxation of natural resources, especially in relation to copper and silver, and will inevitably change the natural resources landscape in Poland.

PGNiG SA, which has a monopoly position in the Polish natural gas market, has recently published its view on the Natural Gas Release Programme. The concept of the programme presented by PGNiG discusses two issues - the functioning of the natural gas market and the implementation of the programme.

Recent press releases have shed some light on the long-anticipated Renewable Energy Sources Act, due to be enacted in coming months. The act is expected to provide a comprehensive regulation of the Polish renewables market and regulate the renewables support scheme, currently covered by the Energy Law. The act will not change the fundamental instruments of renewable energy support.

As the parliamentary election draws nearer, the debate on the future of the exploration and production of shale gas in Poland is heating up. While there is currently no separate legislation regarding Polish shale gas, according to representatives of the largest opposition party draft legislation has been prepared and will be submitted for discussion immediately after the elections.

The lower house of the Polish Parliament recently adopted an amendment to the Act on Stocks of Crude Oil, Petroleum Products and Natural Gas. The amendment provides for the possibility of maintaining compulsory stocks of natural gas in storage facilities located outside Poland. This option will be available where the supplier guarantees that the stocks will be supplied to the Polish transmission system within 40 days.

The lower house of the Polish Parliament recently passed a bill amending the Energy Law. If passed, the amendments will provide for the inclusion of electricity sold on the Warsaw Stock Exchange Energy Market in the so-called 'exchange obligation' (ie, the mandatory sale of generated electricity on a commodity exchange). Several provisions introduced by a previous amendment will also be amended and clarified.

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Environment

The Council of Ministers recently adopted the conceptual framework for a bill amending the Law on Maintaining Cleanliness and Order in Municipalities and amending certain other laws. This allows the Ministry of Environment to make a fundamental amendment to the waste management system which, as a result, may significantly change plans for construction of waste-to-energy plants in Poland.

The Act amending the Act on Access to Information on the Environment and on Environmental Impact Assessments recently came into force. The amendment introduces several changes which are important for investors. In compliance with the act, before the implementation of planned investments that might have a significant impact on the environment, a decision on environmental conditions must be obtained.

Under the Green Investment System, states that exceed their climate commitments can sell their surplus assigned amount units to other states in order to use the funds derived from such sales to finance projects that limit greenhouse gas emissions. Recently, the Polish government took steps towards selling its surplus assigned amount units.

Insolvency & Restructuring

The Warsaw common court recently concluded its first successful recovery proceeding - an emerging trend in Polish bankruptcy and recovery judicial practice. A new approach to recovery proceedings by this court, which handles the largest number of insolvency cases in Poland, will improve the chances of successfully initiating and completing such proceedings.

A recent spate of bankruptcies among entrepreneurs has clogged the courts with mounting cases, forcing many businesses to look to alternative measures for debt rescue. Therefore, an increasing number of courts are announcing their first successfully conducted recovery proceedings. A debtor that is willing to take on the additional costs and effort required for recovery proceedings can reap the benefits.

The ministers for justice and economy recently announced plans for a radical reform of bankruptcy law, aiming to allow businesses on the verge of bankruptcy to return to stable economic relations more easily. If properly applied, the proposed amendments should result in the Polish legal environment, and bankruptcy law in particular, becoming more enterprise-friendly and business-oriented, offering a true boon for investors.

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Intellectual Property

The Polish judicial system is not particularly effective in pursuing infringements of intellectual property. However, in recent years, the number of dismissals of cases involving such infringements has been falling, and the number of convictions and the value of compensation has been rising. The Polish law enforcement authorities are slowly realising that a breach of IP rights is a serious offence.

Litigation

Overview
Including: Court Structure; Procedure; First Instance; Pleadings; Evidence; Judgments; Appeals; Enforcement; Injunctions; Costs of Litigation.

This update outlines the scope of application of the Lugano Convention, and the circumstances in which a foreign judgment may be recognized and enforced in Poland.

Product Liability

A new act implementing the EU Unfair Commercial Practices Directive recently came into force. The act describes unfair market practices as those which are contrary to good practice and could or will materially distort the market behaviour of the average consumer before, during or after agreeing to buy a product.

A recent act amending the Civil Code materially changes the rules of limitation on personal injury claims for the benefit of consumers. In product liability cases injured parties will be able to assert their rights for a longer period. This is of particular importance in cases where a personal injury manifests itself many years after the event that caused it.

The amended Pharmaceutical Law, which came into force on May 1 2007, introduced a new type of marketing authorization for medicinal products. Imported medicinal products may now be placed on the market without obtaining the relevant authorization if the medicine is necessary for reasons of "safety of life and health".

In recent years there has been much discussion in Poland over the legality of selling medicinal products by mail order. However, on May 1 2007 an amendment to the Pharmaceutical Law came into force to allow generally accessible pharmacies and pharmaceutical outlets to sell by post medicinal products dispensed without a doctor's prescription.

The new Law on the Safety of Food and Nutrition has come into force. The new law harmonizes the Polish food legislation with EU requirements, in particular with regard to the obligations of food manufacturers and companies introducing food products onto the Polish market. The changes also affect the Polish dietary supplement sector.

Projects & Procurement

Given that Poland is to host the Euro 2012 football championships, the creation of real possibilities for the realization of infrastructure projects and the provision of services based on the public-private partnership (PPP) formula has become imperative. In consideration of this, the government prepared a new draft PPP Act.

An amendment to the Public Procurement Law came into force on May 25 2006. The changes are both numerous and wide ranging, and are designed to bring Polish procurement law into line with the EU directives of March 31 2004 (2004/17/EC and 2004/18/EC), the implementation period for which expired at the end of January 2006.

The Law on Toll Motorways has been amended. Changes concern the financing, construction and operation of domestic motorways, and the procedures for granting concessions.

White Collar Crime

The European Commission recently blocked the payment of more than PLN3.5 billion for the construction of three road sections, following allegations of fraud by numerous contractors. Concerns focused around a claim of collusion by 10 contractors, working in cooperation with the director of the Warsaw branch of the General Directorate for the Construction of Roads and Highways.

The head of the Internal Security Agency (ISA) recently resigned his position in opposition to government proposals for reform of the special services. Under government plans, the ISA is to be deprived of its right to conduct investigations. Combating white collar crime would instead be dealt with by the Central Anti-corruption Bureau, which focuses on corruption issues, and the Central Bureau of Investigation of the Police.

A precedent-setting judgment was recently rendered in the case of a famous heart surgeon accused of corruption. He has been given a one-year suspended sentence and a fine. Given the relative lightness of the sentence, it has been argued that in directing the entire power of the state against one man and the sensitive area of transplant surgery, the Central Anti-corruption Bureau's approach was unjustified.

In Poland, every president of a regional court must maintain a list of court experts, in which those specialising in a particular field must be entered. However, after an entry has been added, there is no control of the experts' skills or actions and individuals' knowledge is often not updated for a number of years. In a rapidly changing economy, their opinions may be incorrect and have the potential to do more harm than good.

There has recently been much discussion in Poland of the Amber Gold affair, a typical financial pyramid (or Ponzi) scheme, to which several thousand people fell victim. During the course of the dispute, a number of deficiencies in the judicial system came to light. The attorney general has had to explain the activities of subordinate institutions before Parliament and the role of the Prosecutor's Office has been discussed.

The Appellate Prosecutor's Office recently announced that the former director of the IT Projects Centre, Andrzej M, who was suspected of taking the highest bribes in case history for rigging tenders for the computerisation of government authorities, has been released from custody. He has been granted the status of 'small crown witness', which provides for an extraordinary mitigation of punishment.

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