Kubas Kos Gałkowski updates

Collection of capacity fee – role of distribution system operator
Kubas Kos Gałkowski
  • Energy & Natural Resources
  • Poland
  • 21 June 2021

On 1 January 2021 the capacity fee came into force. However, the system for its determination and collection is not entirely clear in light of the wording of the Act on the Capacity Market. In this regard, the act creates specific obligations for some system participants, including distribution system operators. The wording of the provisions on this matter may give rise to some interpretative difficulties when applied in practice.

Can a party continue arbitration after assigning the claim?
Kubas Kos Gałkowski
  • Arbitration & ADR
  • Poland
  • 17 June 2021

The Warsaw Court of Appeals recently determined whether an arbitral tribunal violated public policy when it dismissed a respondent's counterclaim that the original claim lacked locus standi. The case will have a significant impact on parties that are pursuing a claim in arbitration and want to assign it in the course of the proceedings. Such parties should be careful in making this decision and secure their position contractually.

Changes to rules for charging e-vehicles
Kubas Kos Gałkowski
  • Energy & Natural Resources
  • Poland
  • 17 May 2021

The Ministry of Climate and Environment has published a draft amendment to the Act of 11 January 2018 on Electromobility and Alternative Fuels and certain other acts which proposes new regulations on the charging of e-cars. The changes primarily serve to identify the elements to be considered when testing electrical installations in multi-family buildings, as well as the manner of settlements for energy used between an energy company and an entity owning two charging points.

Appeals courts confirm procedural public policy violations
Kubas Kos Gałkowski
  • Arbitration & ADR
  • 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.

Clean transport zones: amending Act on Electromobility and Alternative Fuels
Kubas Kos Gałkowski
  • Energy & Natural Resources
  • Poland
  • 22 February 2021

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.

Capacity fee enters into force
Kubas Kos Gałkowski
  • Energy & Natural Resources
  • Poland
  • 01 February 2021

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.

Erroneous charging inconsistent with tariff conditions justifies administrative fine
Kubas Kos Gałkowski
  • Energy & Natural Resources
  • Poland
  • 25 January 2021

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.

Lack of funds does not enable parties to escape arbitration
Kubas Kos Gałkowski
  • Arbitration & ADR
  • 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.

Legislative works undertaken to achieve electricity market reforms
Kubas Kos Gałkowski
  • Energy & Natural Resources
  • Poland
  • 02 November 2020

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.

Arbitral award vacated for violation of EU competition law
Kubas Kos Gałkowski
  • Arbitration & ADR
  • 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.

Capacity market: consultation on necessary amendments
Kubas Kos Gałkowski
  • Energy & Natural Resources
  • Poland
  • 14 September 2020

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.

New draft Promotion of Electricity Generation in Offshore Wind Farms Act published
Kubas Kos Gałkowski
  • Energy & Natural Resources
  • Poland
  • 03 August 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'.

Ready, set, off: Warsaw Court of Appeals confirms tribunal's jurisdiction over set-off claims
Kubas Kos Gałkowski
  • Arbitration & ADR
  • 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.

Supreme Court clarifies contractual penalties for energy consumers
Kubas Kos Gałkowski
  • Energy & Natural Resources
  • Poland
  • 30 March 2020

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.

New income tax exemption for Low-Emission Transport Fund e-vehicle subsidies
Kubas Kos Gałkowski
  • Energy & Natural Resources
  • Poland
  • 09 March 2020

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.

Words, words, words: concise reasoning not grounds to vacate award
Kubas Kos Gałkowski
  • Arbitration & ADR
  • 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.

Draft Promotion of Electricity Generation in Offshore Wind Farms Act published
Kubas Kos Gałkowski
  • Energy & Natural Resources
  • Poland
  • 17 February 2020

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.

Res iudicata saga continues
Kubas Kos Gałkowski
  • Arbitration & ADR
  • 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
Kubas Kos Gałkowski
  • Arbitration & ADR
  • 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.

High-efficiency cogeneration – individual cogeneration bonuses announced
Kubas Kos Gałkowski
  • Energy & Natural Resources
  • Poland
  • 28 October 2019

The first implementing regulations of the Act of 14 December 2018 on the Promotion of Electricity from High-Efficiency Cogeneration were published on 21 August 2019. The act aims to exploit the potential of cogeneration to improve air quality in Poland and increase the efficiency of heating and cooling systems.

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