Poland updates

Arbitration & ADR

Contributed by Kubas Kos Gałkowski
Can arbitrated claims be secured with European account preservation order?
  • Poland
  • February 22 2018

A recent Rzeszow Appellate Court ruling has confirmed that a European account preservation order (EAPO) can be issued by a state court to secure claims which have been submitted by the parties to arbitration. The case concerned a request for arbitration following a lack of fulfilment of contractual obligations. The request was followed by a petition to a regional court requesting that an EAPO be issued against the respondent in the pending arbitration.

ICC award set aside due to irregularities in arbitrator's appointment
  • Poland
  • December 21 2017

Cases involving allegations against the appointment, impartiality or independence of abitrators are usually complicated and it is difficult to make any firm statements, save for obvious cases of bias. A recent Court of Appeals decision set aside an International Chamber of Commerce award due to the fact that, among other things, one party's rights had allegedly been infringed when the sole arbitrator was selected in the course of the proceedings.

Agent claiming commission for football transfer caught offside
  • Poland
  • September 28 2017

A recent Supreme Court case found that an arbitral tribunal did not violate public policy by reducing an agent's claim for commission against a football club. In addition to setting a precedent in the field of sports law, the decision is important for arbitration practitioners as it confirms that intervention in the arbitral process on the grounds of public policy is limited to the most severe violations of Polish law.

Supreme Court confirms that agent's email authorisation is necessary to enter into arbitration agreement
  • Poland
  • July 13 2017

International contracts are often concluded via email. This practice requires a more liberal approach to the form of arbitration agreements under the New York Convention. However, the convention is silent on the form in which an agent's authorisation (ie, power of attorney) to enter into an arbitration agreement must be made. A recent Supreme Court decision confirms that under Polish law, such authorisation is required and should be made in an equal manner to that required to conclude the agreement itself.

Unfair arbitration clause declared invalid
  • Poland
  • April 27 2017

Mass contracts are usually drafted favourably only for the stronger party in the contractual relationship. This particularly pertains to dispute resolution (eg, its method or place). The Supreme Court recently ruled strongly in favour of the weaker parties in a contract and found that an arbitration clause in the contract between a Polish franchisee and a Dutch franchisor that opted for New York as the place of arbitration was invalid, as it was grossly unfair to the Polish party.

Company & Commercial

Shareholders' rights to give binding instructions to limited liability company managers
  • Poland
  • January 22 2018

The Code of Commercial Companies provides that the supervisory board of a limited liability company cannot give binding instructions regarding the management of the company's affairs to its managers. As there is no similar explicit provision prohibiting a shareholders' meeting from issuing such instructions, the question arises as to whether this was an intentional omission by the legislature and whether managers of limited liability companies must follow instructions given by shareholders.

Have we already concluded an agreement?
  • Poland
  • November 06 2017

Parties that negotiate a contract for sale when they are based in different countries are not always aware of the legal nature of their negotiations and the possible legal consequences. As such, it is advisable that parties choose the law applicable to the contract being negotiated and the negotiations themselves as soon as discussions begin. In the event of a dispute, this will enable them to avoid the potential risk of the courts finding that the contract in question has already been concluded.

Competition & Antitrust

Contributed by Schoenherr Attorneys at Law
Supreme Court provides guidance for calculating fines in resale price maintenance cases
  • Poland
  • January 25 2018

In a recent antitrust judgment, the Supreme Court provided an additional explanation of its approach to calculating fines in cases of collusion concerning resale prices (ie, resale price maintenance). Further, for the first time in its judicial practice, the Supreme Court provided general remarks concerning the privilege against self-incrimination that alleged infringers may claim.

Competition authority adopts new approach to gathering electronic evidence during dawn raids
  • Poland
  • October 12 2017

The Warsaw Court of Competition and Consumer Protection recently delivered a significant judgment regarding the collection of electronic evidence during unannounced inspections conducted by the Office for Competition and Consumer Protection. As a result, documents stored on hard drives and emails of managers and employees must now be reviewed by officials on the inspected company's premises.

Parliament adopts Act on Private Enforcement of Competition Law
  • Poland
  • June 15 2017

Parliament recently adopted the Act on Private Enforcement of Competition Law, which transposes the EU Antitrust Damages Directive into Polish law. The act aims to enhance the enforcement of the payment of compensation by companies that have infringed competition rules. The introduction of legal presumptions shifting the burden of proof onto the infringer and specific rules on the disclosure of evidence are steps in this direction.

OCCP imposes fine for resale price maintenance agreement
  • Poland
  • February 16 2017

The Office for Competition and Consumer Protection (OCCP) recently issued a decision in which it concluded that wholesale supplier Fordex and sports retailer Intersport had entered into an anti-competitive agreement and violated Article 6 of the Competition Act. The OCCP's decision stressed that price agreements (even vertical ones) are serious infringements of competition law to which neither the de minimis rule nor the block exemption regulations can be applied.

Price-fixing agreement facilitated by association of undertakings
  • Poland
  • November 03 2016

The Office for Competition and Consumer Protection recently imposed a fine on the Association of Polish Centres for Infertility Treatment and Reproduction Development for entering into an anti-competitive price-fixing agreement and violating the Competition Act. The penalty reflects the fact that price-fixing agreements are regarded as serious infringements of competition law.

Corporate Finance/M&A

Contributed by Kubas Kos Gałkowski
Shareholder activism in Poland – an overview
  • Poland
  • October 04 2017

Shareholder activism has grown in popularity in recent decades due to leading law firms specialising in the implementation of available shareholder activism strategies, and the role of hedge funds and related services constitutes a significant niche in the legal services market. Under Polish legislation, various forms of shareholder activism can be applied.

Protection of shareholders against unfavourable share exchange rate in capital companies merger process
  • Poland
  • August 23 2017

By assumption, the process of merging capital companies is advantageous from the point of view of the merging companies and their shareholders. However, sometimes a shareholder may receive fewer shares in the acquiring company than he or she should have. In such a context, the question that arises is whether the protection of shareholders' interests against an unfavourable share exchange rate is possible under Polish law and, if so, how it can be accomplished.

Non-disclosure agreements: an effective tool during negotiations
  • Poland
  • July 12 2017

To a large extent, the security and success of a transaction depends on the correct execution of the process preceding its finalisation. At the pre-contractual stage, a non-disclosure agreement (NDA) is the first agreement that regulates the mutual relationships of the parties involved in the negotiations. Concluding an NDA in Poland is of substantial significance as, in the case of a violation, it enables a party to seek damages to the fullest extent possible.

Limitations on challenging resolutions at shareholder meetings for company mergers
  • Poland
  • June 14 2017

The company merger procedure is regulated by the Commercial Companies Code, which provides for the adoption of shareholder resolutions during company mergers. Similar to other shareholder resolutions during general meetings, the resolution may be challenged according to the principles set out in the code. However, certain exceptions to the general principles apply.

Share purchase agreement forms for share transfers concluded in another state
  • Poland
  • May 03 2017

Under Article 180 of the Commercial Companies Code, the effective transfer of share ownership requires a transfer ownership agreement to be concluded in writing with a signature certified by a notary. However, not all legal regulations in force in EU member states require adherence to a special form. The question that therefore arises is whether adhering to a less restrictive form will suffice for the effective transfer of the legal title in the shares being disposed of.

Employment & Benefits

Social security contributions of self-employed managers
  • Poland
  • January 17 2018

Social security contributions in Poland are significant, particularly in the case of highly paid managers. As a result, it is common practice for managers to perform their duties as self-employed persons under management contracts. A recent Supreme Court decision confirmed that management contracts can still be performed by self-employed managers and that such business activity constitutes a basis for social security insurance if the manager is not a management board member.

Supreme Court decides that employers can demand information on employees' additional work activities
  • Poland
  • October 25 2017

The Supreme Court recently ruled that an employer can demand that an employee inform it of any additional activities that he or she undertakes during the employment period. If the employee fails to do so, this can justify his or her employment contract being terminated upon notice. The judgment confirms the court's existing position in this regard. However, the court's second conclusion concerning data protection is new and may raise doubts regarding its compliance with the Labour Code.

Changes to employment of temporary workers introduced
  • Poland
  • July 05 2017

The Act Amending the Act on the Employment of Temporary Workers and Certain Other Acts recently entered into force. It introduces important changes and limitations concerning temporary work and aims to improve the temporary work market and counteract abusive practices. The amendment concerns all employers that hire temporary workers.

Supreme Court judgment on concluding employment agreement with pregnant woman
  • Poland
  • April 19 2017

In a recent judgment concerning an employment agreement concluded with a pregnant woman, the Supreme Court stated that the actual and real performance of an employment relationship is decisive for determining whether the parties actually concluded an employment contract. Entitling a document 'employment agreement' and having it signed by the parties does not determine its legal status – rather, it is crucial that work is performed on the basis provided for in the employment contract.

Supreme Court issues landmark ruling regarding claims for termination on discriminatory grounds
  • Poland
  • February 08 2017

The Supreme Court recently decided that bringing a claim against an employer for the unlawful termination of an employment contract pursuant to Article 45(1) of the Labour Code is not a prerequisite to obtaining an award of damages pursuant to Article 18(3d) of the code. The decision fundamentally changes the risks associated with serving a termination notice and terminating an employment contract and enables employees to make claims long after their employment has been terminated.