Poland updates

Arbitration & ADR

Contributed by Kubas Kos Gałkowski
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.


Competition & Antitrust

Contributed by Schoenherr
Second-instance court rejects PKP Cargo's appeal against abuse decision
  • Poland
  • 01 October 2020

A second-instance court has rejected PKP Cargo's appeal against a Zl14.22 million (€3.2 million) abuse of dominance fine. The Office for Competition and Consumer Protection originally imposed the fine in 2015, as it found that PKP Cargo had abused its dominant position in the domestic rail freight market by unlawfully changing the rules for the sale of freight services, allowing the company to refuse to sign special contracts with competitors.

UOKiK will investigate fruit market over potential price fixing
  • Poland
  • 24 September 2020

The National Council of Agricultural Chambers recently asked the Office of Competition and Consumer Protection (UOKiK) to look into potential competition rule breaches in the soft fruit market, especially regarding the sale of gooseberries. According to gooseberry growers, the buying price of gooseberries is too low compared with the potential price of further sale. The UOKiK is set to investigate Poland's soft fruit market over suspected price fixing.

UOKiK publishes guidelines regarding competition-related fines imposed on managers
  • Poland
  • 13 August 2020

Under the Competition Act, when an undertaking is fined for being a party to a restrictive agreement, the Office for Competition and Consumer Protection (UOKiK) can impose financial penalties on the undertaking's managers. The UOKiK recently published a soft law document which provides detailed rules for determining such penalties. According to the new guidelines, fine calculations are a multi-stage process in which an array of objective and subjective criteria are taken into account.

COVID-19: state aid scheme sets maximum prices and margins for certain goods
  • Poland
  • 30 April 2020

The European Commission recently approved a state aid scheme worth Zl3.5 billion (approximately €700 million) for loans and guarantees to support the Polish economy in the context of the COVID-19 outbreak. The scheme will allow the Polish authorities to grant aid to support Polish companies affected by the COVID-19 outbreak by providing liquidity support in the form of guarantees on loans and subsidised interest rates for loans. This article addresses the new competition rules under the scheme.

Supreme Court comments on anti-competitive vertical agreements
  • Poland
  • 26 September 2019

The Supreme Court recently explained that the Office for Competition and Consumer Protection does not have to identify all of the parties to an anti-competitive vertical agreement in decisions issued in such cases. This matter has been the subject of debate in Poland for some time, with some commentators viewing it as a possible violation of an organiser's right to a defence. It is evident from this judgment that such arguments will be unsuccessful in the courts.


Corporate & Commercial

Representation of corporations and prohibition of self-dealing
  • Poland
  • 09 March 2020

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'.

Disposal of shares in private companies after introduction of universal dematerialisation
  • Poland
  • 13 January 2020

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.

Simple joint stock company introduced to Commercial Companies Code
  • Poland
  • 07 October 2019

Parliament recently introduced the simple joint stock company to the Commercial Companies Code. This change aims to provide a simpler and cheaper option than standard joint stock companies regarding company formation, operation and liquidation and a more modern and flexible company model with a legal personality that will be particularly attractive to start-ups. However, the introduction of this new type of company has provoked divergent opinions.

E-financial statements are first stage of digital revolution in Polish corporate law
  • Poland
  • 29 July 2019

The legislature recently introduced a regulation on e-financial statements. As a result, all financial reports submitted by Polish companies (with the exception of entities preparing financial statements in compliance with the international accounting standards) must be drawn up electronically using files with an '.xml' extension as defined by the Ministry of Finance. Polish companies should take appropriate steps to mitigate the potential risks and comply with this revolutionary regulation as soon as possible.

Special rules of representation for limited liability companies
  • Poland
  • 08 July 2019

The Commercial Company Code allows representation by a supervisory board or proxy appointed by a resolution of a shareholders' meeting in contracts or disputes between companies and their management boards. In this context, the Supreme Court recently examined whether a limited liability company should be represented by a general partner or its management board when amending a limited partnership agreement, despite the fact that the limited partner was a member of the company's management board.


Corporate Finance/M&A

Downstream mergers under Polish company law
  • Poland
  • 19 February 2020

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.


Employment & Immigration

Contributed by Sołtysiński Kawecki & Szlęzak
Recent legislative changes: everything HR departments need to know
  • Poland
  • 03 March 2021

Ongoing monitoring of the latest legislative changes is an essential part of HR departments' work. To help employers, this article highlights the most significant legislative changes so far in 2021, including with regard to blood donors being awarded an additional day off work, the extension of the additional carers' allowance and the National Labour Inspectorate's inspection plan for 2021.

What's new in employment law in 2021?
  • Poland
  • 24 February 2021

This article presents a brief summary of the key changes that employers and employees will have to face in 2021, including with regard to the increase in the minimum wage, the obligation to notify contracts for specific work, remote working, COVID-19 vaccination and audits relating to use of anti-crisis shield instruments.

Overview of changes in employment law in 2020
  • Poland
  • 17 February 2021

Without a doubt, the COVID-19 pandemic dominated 2020, affected the business world and forced employers to adapt to new conditions. The legislative work of 2020 focused mainly on counteracting the COVID-19 pandemic's impact by supporting employers and preserving jobs. This article presents a brief summary of the key changes that employers and employees had to face in the difficult year of 2020.

How is remote work regulated in Poland?
  • Poland
  • 02 December 2020

During the COVID-19 pandemic many companies have decided to let their employees work from home. However, the issue of remote work is often problematic for Polish employers as it is not regulated in the Labour Code, which regulates only telework. The current regulations have not kept up with the changing circumstances and therefore pose difficulties regarding interpretation for employers. Employers should be careful and monitor both the situation and opinions presented by officials.

Changes on the horizon regarding posting of employees and mobbing
  • Poland
  • 02 September 2020

For the past few months, legislative work has primarily focused on COVID-19. However, the anti-crisis shield is not the only issue that employers should pay attention to in the near future. On the horizon there are changes concerning the posting of employees and potential changes with respect to 'mobbing' (ie, workplace bullying).