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.
The Ministry of Transport, Construction and Maritime Economy recently prepared a proposal for a legal definition of 'carsharing'. In addition, carsharing will be added to the legal definitions covered by Article 2 of the Act on Electromobility and Alternative Fuels under the term 'sharing service'. This development will significantly contribute to the development of carsharing and thus have a positive impact on not only the environment, but also the organisation of urban traffic.
In order to prevent the negative impact of transport pollutant emissions on human health and the environment, the legislature passed the Act of 11 January 2018 on Electromobility and Alternative Fuels, which introduced the possibility for community councils to create clean transport zones. In such zones, vehicle traffic restrictions were introduced, from which certain vehicles were exempt. However, in response to public expectations, the ministry has proposed draft amendments to the act.
The President of the Energy Regulatory Office recently announced the capacity fee rates for 2021. As of 1 January 2021, this fee will be added to electricity end-users' bills for the first time. This article provides an overview of the capacity fee, the rates thereof and the purpose of its introduction, as well as the key principals of the capacity market.
The Supreme Court recently applied Article 56(1)(6) of the Energy Law to clarify when the Polish regulator can impose an administrative fine on an energy company. The Supreme Court dealt with a situation where the tariff applied was contrary to the conditions specified therein. This verdict will have an important impact on similar administrative proceedings against trading companies.
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.
Pursuant to Article 20(3) et seq of EU Regulation 2019/943, some EU countries – including Poland – had to prepare a specific roadmap for the implementation of the new electricity market's principles, which could be adapted to accommodate the social and economic realities of the given country. This article summarises the actions taken by Poland to adapt its national legal environment to the requirements of the Clean Energy for all Europeans package.
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.
In recent weeks, information has been published concerning the draft amendment to the Act of 8 December 2017 on the Capacity Market. The amendment aims to adapt Polish regulations to reflect the new electricity market structure agreed at the EU level as part of the Clean Energy for all Europeans package. The Ministry of Climate is responsible for the draft law, the adoption of which is planned for the third quarter of 2020.
Following public consultations conducted by the minister of state assets, the Ministry of Climate has published a new version of the draft Promotion of Electricity Generation in Offshore Wind Farms Act. The structure of the draft act, as well as the basic shape of the support system, remain largely intact. However, a number of changes have been made, including with respect to the definition of an 'offshore wind farm'.
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.
The Supreme Court recently held that imposing a contractual penalty on energy consumers due to the early termination of a contract for energy supply is prohibited. This latest ruling seems to change the current interpretation of the legal provisions on the possibility of imposing a contractual penalty on acceptance in the case of early termination of a contract which was concluded for a fixed period.
In today's world, contractual provisions must be flexible. Transactions involving real estate often require special legal solutions. In particular, this flexibility should apply to the determination of the price in the contract or, more precisely, the possibility of increasing or decreasing the price after the conclusion of the contract.
In economic trading, corporations on both sides of a transaction are often represented by the same person, who is often a board member of the parent. The Commercial Companies Code does not mention the admissibility of such simultaneous representation of two corporations by the same person acting as a board member. However, in the Civil Code, this situation is regulated with regard to the representation of two parties to a transaction by the same 'attorney-in-fact'.
A recent amendment to the Personal Income Tax Act and the Corporate Income Tax Act has introduced an income tax exemption for benefits received from the Low-Emission Transport Fund (ie, subsidies for purchasing e-vehicles). The Low-Emission Transport Fund was established in 2018 and is tasked with financing projects relating to the development of electromobility and transport based on alternative fuels.
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.
The Code of Commercial Companies allows for mergers of both independent companies and related entities. Concerns arise when subsidiaries take over dominant companies (so-called 'reverse' or 'downstream' mergers) and the domination results in a subsidiary having a controlling shareholding package. While downstream mergers are admissible under Polish company law, a high level of uncertainty remains as to whether they will be accepted by a particular registry court.
The draft Promotion of Electricity Generation in Offshore Wind Farms Act was recently published on the Government Legislation Centre's website. Among other things, the proposed act aims to create a regulatory environment that encourages investors to carry out offshore wind farm projects. In turn, this will enable Poland to fulfil its obligations under the EU Promotion of Energy from Renewable Sources Directive.
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.
The Law of 30 August 2019 significantly amended the Commercial Companies Code and other laws. The main change regards the general dematerialisation of shares in private joint stock companies and limited joint stock partnerships. The amendment will enter into force on 1 January 2021.