The Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes (Directive on consumer ADR) obliged Member States to bring into force the laws, regulations and administrative provisions necessary to comply with said Directive by 9 July 2015. Today we should hence be celebrating the first anniversary of the new ADR regime coming in force for European consumers. However, due to delays and problems in the transposition processes across the EU Member States, the celebration needs to be postponed.
The development of international arbitration in recent years has led to a significant multiplication of arbitration institutions around the world. In fact, every major city related to trade or industry has at least one dispute resolution centre. In addition to having long-standing, very reputable institutions for resolving commercial disputes, i.e. ICC in Paris or LCIA in London, for some time there has been a trend in establishing dispute resolution centres specializing in particular sectors of the economy. This trend is particularly noticeable in disputes relating to energy and natural resources, as well as those regarding the financial sector.
After specialists on sky jumping and Formula 1, Poland has recently seen the rise of proceduralists, i.e. specialists on each and every proceedings, including, in particular, proceedings on front of tribunals. O tempora, o mores, in the media, the press, in restaurants, at bus stops and in parks almost everyone discusses procedure. Particular popularity has been granted to the concept of the so-called “non-existing judgment” (Lat. sententia non existens), i.e. a rather sophisticated concept of the doctrine of procedural law, revolving around, in particular, the issue of what makes a judgment a judgment. Specialists of various kinds and species have entered a fierce battle for arguments on how potential procedural flaws (including, in particular, flaws in the composition of the court) may influence the (non)existence of a judgment. Politically sensitive readers are kindly informed in advance that any similarity to real persons and events is almost entirely unintended.
“Good morning, Sir. I’m calling from the appellate court in X – you transferred 300 zloty. What’s that for please?”
“A court fee for the declaration of enforceability in Poland of a judgment of a foreign arbitration court.”
“Sir, we are the appellate court and recognize only appeals”
“No, from January 1st this year, the appellate courts will recognize also motions to set aside arbitration awards as well as the recognition of enforcement of judgments of foreign arbitration courts.”
“Oh, in that case, could you please tell me the court file number?”
“I cannot, because the motion only goes to you and once it arrives, you indicate the court file number.”
“Please call me if there are any problems.”
We submitted our first application for a declaration of enforceability of a judgment of a foreign court of arbitration in Poland to the appellate court. Under the act of 10 August 2015 on amendment of certain acts in relation to the promotion of amicable dispute resolution, such an application, and an application to set aside an arbitration award, should be referred to the appellate court. For decisions in such a case only a cassation can be filed. This is a breakthrough in Polish arbitration law. For years, the arbitration community endeavored to flatten post-arbitration proceedings. The reason for this was that one of the main advantages of arbitration, the speed, was bedeviled by the fact that after the ruling of the court of arbitration, the matter went to the state courts and passed two instances and possibly a cassation. On the whole, it was not shorter than the time that the common courts would have spent exclusively on such matter. For years it has been impossible to change this state of affairs. From important people, including the authorities, we have heard that the two instances which dealt with the judgment of the arbitration courts was a constitutional requirement (art. 176, section 1 of the Constitution). Complaints and arguments were heard practically at each arbitration conference. Among us who are involved in arbitration, some doubted that this could ever be changed. And yet it has. It took a determined government minister – Mr. Mariusz Haladyj, who pushed though the entire legislation process – and the matter is settled.
One of the main problems of Polish arbitration has been resolved. Now, we in the arbitration community have fewer and fewer arguments and excuses for the sluggish growth of arbitration in Poland.
On July 8, 2015 the European Parliament approved the recommendation to the European Commission regarding the Transatlantic Trade and Investment Partnership by endorsing the Lange report. In fact, they are guidelines for the European Commission to negotiate with the United States. The approval of these guidelines has taken place with a considerable majority of votes: 436 to 241 with 32 abstentions. It bodes well for the possibility of negotiating the final agreement. Continue Reading
This week, representatives of the European Commission and the US Government met in New York for the ninth round of negotiations over the proposed trade and investment agreement between the European Union and the United States [http://trade.ec.europa.eu/doclib/events/index.cfm?id=1287]. The agreement will be known as the TTIP. If adopted, it will impact the economies and lives on both sides of the Atlantic, in a way and to an extent we are unable to predict. Continue Reading
It is ten years since the current Polish mediation and arbitration laws were enacted. Round dates encourage retrospection and thoughts about the future. Just like wine, law needs time to mature. It needs court decisions and doctrine to pull it out of its depths and decode the “proper” sense of the legal norms. But only a select few wines are suitable to drink after numerous years or decades. A 100-year-old bottle of wine sold at auction for an enormous amount might only be used as a collector’s exhibit. Most white wines, due to a lack of antioxidant tannins, must be drunk within 5-10 years of their production date. Law “ferments” even faster. Continue Reading
I have been bothered with this question for some time. Poland is not a party to the Washington Convention, and I do not mean the Convention on International Trade in Endangered Species of Wild Fauna and Flora of 1973, but the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States, which appointed the International Center for Settlement of Investment Disputes (ICSID). ICSID is an institution which, according to its name, was appointed to resolve and administrate investment disputes. So far, the arbitration panels under the ICSID has handled more than 490 cases. I could not find an answer to the question why Poland is not a party to this Convention. Continue Reading
I have recently received an email containing an offer from a detective agency. I would have probably never looked into the message while searching for evidence of marital infidelity or looking for debtors hiding themselves and their property from creditors were it not for the beginning of the offer: “In connection with the amendment of the Criminal Procedure Code we send an offer …”. What happened that detectives’ services might be particularly useful to advocates in 2015? Continue Reading
It is a truism that that the Supervisory Board in a company, cooperative or in the structure of another legal person operates collectively. In turn, penal liability is an individual liability. However, it would be a mistake to conclude the issue only with such statements. Continue Reading