Mr Rafał Kos

Rafał Kos


Arbitration & ADR

Appeals courts confirm procedural public policy violations
Poland | 01 April 2021

The Polish courts rarely confirm violations of procedural law. In two recent cases, the appellate courts found that procedural errors in arbitration were grave enough to justify setting aside the awards in question. These cases are interesting, especially from the perspective of arbitrators. Arbitrators must be careful in verifying whether they have ruled on a case exactly as it was brought before them. The consequences of a mistake in this respect can be serious.

Lack of funds does not enable parties to escape arbitration
Poland | 21 January 2021

Arbitration does not provide for legal aid or an exemption from paying costs. Some regard this as a disadvantage of alternative dispute resolution. One party's lack of funds to pay for its share of arbitration costs can indeed deprive it of its day in arbitration court. This issue recently came before the Warsaw Court of Appeals, which decided that a party's lack of funds to launch arbitration does not render the arbitration agreement defective.

Arbitral award vacated for violation of EU competition law
Poland | 15 October 2020

The issue of arbitral tribunals' application of EU law is not new. In the 1990s the European Court of Justice (ECJ) established that a national court which receives an application to annul an arbitration award must grant such application if it considers that the award in question is contrary to EU law. In recent years, this issue was revived in investment arbitration and the ECJ's famous (or for many, infamous) Achmea judgment. A landmark decision of the Warsaw Court of Appeals is yet another chapter in this story.

Ready, set, off: Warsaw Court of Appeals confirms tribunal's jurisdiction over set-off claims
Poland | 23 July 2020

The issue of an arbitral tribunal's jurisdiction over set-off claims that are not covered by an arbitration agreement is controversial, with the rules differing from jurisdiction to jurisdiction. In a recent judgment, the Warsaw Court of Appeals held that even if a set-off claim is based on an agreement that is outside the scope of an arbitration agreement, the tribunal must determine the set-off's effects on the main claim raised in the proceedings.

Words, words, words: concise reasoning not grounds to vacate award
Poland | 27 February 2020

Parties which lose in arbitration often continue to fight off a claim before a state court in post-arbitral proceedings, despite not having a strong case. This provides a double benefit for Polish arbitration practice: not only are a vast majority of these attempts defeated, but the Supreme Court also has a chance to confirm its pro-arbitration approach. One recent decision underlines that the mere fact that the reasoning of an arbitral award is concise is insufficient grounds to vacate the award.

Res iudicata saga continues
Poland | 30 January 2020

The Supreme Court has previously opted for both a broad and a narrow understanding of res iudicata in Polish arbitration law. In a recent judgment, the court again leaned towards a narrow understanding of to what degree an arbitral tribunal is bound by a previous award. The decision should be a caveat for all participants in the Polish legal market that they should play until the whistle is blown.

Important changes to arbitration of corporate disputes introduced
Poland | 07 November 2019

The arbitrability of corporate disputes has long been a controversial issue in Poland. Recent changes in Polish law introduced by the Act of 31 July 2019 aimed to resolve the issues surrounding and give the green light to arbitrating corporate disputes. Unfortunately, it seems that these amendments have failed to solve all of the problems and have even created additional uncertainties.

ICC award set aside for failure to admit further expert evidence
Poland | 05 September 2019

A recent Supreme Court case touched on the obligations of an arbitral tribunal which cannot base its award on party-appointed experts' opinions. In a controversial decision, the court clarified that in such cases, when both parties request a tribunal-appointed expert, the tribunal should allow such a motion and cannot merely decide against the motioning party, as this may cause it to violate its obligation to consider the case, which – according to the Supreme Court – is part of public policy.

Award vacated for ultra petita decision regarding interest
Poland | 01 August 2019

It is obvious to arbitration practitioners that an arbitral award cannot deal with claims not brought before a particular tribunal. However, it is also clear that vacating an award due to a violation of public policy should be an exceptional measure. The Supreme Court recently dealt with these two principles and leaned towards the former, setting aside a domestic award granted for interest for a different period than the one demanded by the claimant in the proceedings.

State court not obliged to review arbitral case file
Poland | 23 May 2019

In post-arbitral proceedings, parties challenging an unfavourable award or its enforcement often argue that they were deprived of the right to present their case or that the tribunal violated the rules of procedure or committed some other procedural error and often request the state courts to order the tribunal to present the arbitral case file. A recent Supreme Court decision evaluated the usefulness and necessity of granting such requests and clarified that such measures should be granted only rarely.

State court refuses recognition or enforcement in collusion cases
Poland | 07 February 2019

Parties unhappy with an arbitration award often try to question its enforcement based on public policy, raising numerous violations of law that do not amount to public policy. However, public policy is a tool that can also protect the legal system in certain situations. Two interesting Katowice Court of Appeals decisions made on the same day by the same judge in two non-related cases demonstrate how the courts deals with collusion cases.

Arbitral tribunals must consider all evidence or risk violating public policy
Poland | 06 September 2018

It is a well-established rule that the setting aside of an arbitral award or the refusal of its recognition or enforcement due to a violation of public policy can occur only as a last resort to remedy a grave error in the award. It is also well established that the state courts in post-arbitral proceedings do not reconsider the facts established by an arbitral tribunal. A recent Supreme Court decision illustrates that although these rules are clear on paper, they are less clear when applied in practice.

Statutory limitations of claims periods excluded from public order
Poland | 19 July 2018

The Supreme Court recently held that the autonomous position of arbitration courts as an alternative to state courts means that the judicial review of an arbitral award by an arbitral tribunal cannot be considered the equivalent of appellate review by a court. The control over arbitration exercised by common courts is primarily aimed at eliminating abuses of arbitration, including violations against the public order; however, provisions regarding the statutes of limitations of claims are excluded from this category.

Supreme Court decides that assignee is bound by arbitration agreement
Poland | 21 June 2018

The assignment of rights and obligations stemming from an agreement forms part of everyday business. This issue can become complicated if a transferred claim is covered by an arbitration agreement. A recent Supreme Court decision shows that in such a case, the assignee and the debtor must resolve their disputes through arbitration. This decision confirms the arbitration-friendly approach of the Polish courts, especially regarding the validity and scope of arbitration agreements.

ICC award set aside due to irregularities in arbitrator's appointment
Poland | 21 December 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 | 28 September 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 | 13 July 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 | 27 April 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.

Court says no to anti-arbitration injunctions in Poland
Poland | 15 December 2016

Anti-suit and anti-arbitration injunctions are useful instruments for enabling efficient dispute resolution and preventing forum shopping. However, these instruments are not favoured in some legal systems. Poland is one of the jurisdictions that was said to exclude the use of anti-suit and anti-arbitration injunctions. The Krakow Court of Appeals recently confirmed that Polish courts cannot prohibit a party from initiating or continuing arbitration.

Supreme Court sets high formal requirements for motion to recognise foreign award
Poland | 29 September 2016

Parties sometimes believe that the recognition and enforcement of an arbitral award is a mere formality, as the substantive proceedings are already over. However, the enforcement stage can prove formal and parties should be careful not to overlook certain requirements of a motion. A recent Supreme Court decision demonstrates the serious consequences that can stem from parties' errors in this regard.

No declaratory judgment on validity of arbitration agreement
Poland | 04 August 2016

A recent Supreme Court judgment confirms that there is no possibility of obtaining a declaratory decision regarding the validity and effectiveness of an arbitration agreement. According to the court, a party that is uncertain of the validity of an arbitration agreement must initiate a substantive case before either a state court or an arbitral tribunal. Only then can the jurisdiction of the tribunal be determined.

Interruption of limitation period of claim covered by arbitration agreement
Poland | 18 February 2016

The effective interruption of a limitation period of a claim can be crucial to the final success of arbitration. However, it is unclear whether a party can interrupt a limitation period by bringing a case before an improper forum or by initiating conciliatory proceedings before a state court for a claim covered by an arbitration agreement. This update examines the risks relating to attempts to interrupt the limitation period in both instances.

Time limits in arbitration agreements
Poland | 17 December 2015

High thresholds for proceedings set in arbitration agreements, such as short time limits, can have serious consequences, including the loss of an agreement's legal effect. Parties must also choose their arguments carefully, as they may be used against them later on. These issues were present in a recent Warsaw Court of Appeal judgment made in post-arbitral proceedings.

Amendments to arbitral law – more efficient post-arbitral proceedings
Poland | 15 October 2015

Parliament recently adopted amendments to arbitral law. The changes allow the period for enforcing claims in arbitration to be shortened by reducing the period for filing a motion to set aside an award as well as reducing the number of instances in which post-arbitral cases will be heard. The amendments mark a step forward in making Poland a more arbitration-friendly jurisdiction.

Elektrim case era comes to an end
Poland | 23 July 2015

A Law on Restructuring was recently signed that derogates from the controversial provisions under which a declaration of bankruptcy rendered arbitration agreements concluded by an insolvent company ineffective. In future, a declaration of bankruptcy will not impede ongoing arbitration. The new provisions require a closer look by foreign parties that have an arbitration agreement with a Polish company.

Loss of effect of arbitration clause
Poland | 28 May 2015

The Supreme Court recently issued a judgment relating to a provision of the law regarding the expiration of an arbitration clause. Pursuant to this provision, if an arbitrator or presiding arbitrator refuses to perform that function or if it is otherwise impossible for him or her to perform that function, the arbitration clause will lose its effect, unless the parties decide otherwise.

Public order – compensatory function of penalty clause
Poland | 02 April 2015

A recent Supreme Court ruling has confirmed that the principle of the compensatory function of penalty clauses is a basic rule of Polish public order. The key issue from a commercial arbitration viewpoint relates to the requirements for the enforcement of a foreign award in Poland and the limits of the public order clause.