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Dispute Resolution in Poland Issues and new developments in dispute resolution in Poland.

On the forum of nations

wojciech_s Posted in International Disputes

It is one of the national amusements in Poland to look for examples of people and facts related to the country that have contributed to the development of the world. Most Poles have thus come to know, from early childhood, that Copernicus stopped the Sun and moved the Earth1. We also boast that the first female winner of the Noble Prize in physics and chemistry, and the first female professor at the Sorbonne university in Paris, was Maria Skłodowska, and that Gabriel Fahrenheit was born and brought up in Gdansk (Danzig) – a few kilometers from one of the stadiums that in less than three months will host the European football championships.

Each of these examples hides the mischief of history, magistra vitae. For example, the mother of the famous astronomer was née Watzenrode – which is a Germanic name; the discoverer of radioactive elements is better known under the name of her French spouse, Pierre Curie; and Fahrenheit degrees are in use thousands of miles from the borders of Poland, where temperature is measured in Celsius. But is it really a problem? The bottom line is that all these elements have contributed to the truly international development of science, culture and civilization.

Are there any similar examples in the field of law? It is enough just to scroll down the docket of the Permanent Court of International Justice, to see how many cases dealt with between the First and the Second World War were concerned with Poland and Polish affairs. The decisions then rendered continued to play a remarkable role in the development of international law. For instance, the case of Jurisdiction of the Courts of Danzig from 19282 was one of the first decisions where an international court expressly admitted the possibility that the purpose of an international agreement was to create rights for individuals that are enforceable by the national courts. That decision preceded by 35 years the judgment of the ECJ in the case of Van Gend en Loos3, which introduced to the EEC law the principle of direct effect. The advisory opinion of the PCIJ is the Jurisdiction of the Courts of Danzig case was also invoked by the English Court of Appeal in the case Ecuador v. Occidental4, when it dealt with the theory of derivative rights, which claimed that international investment agreements do not confer upon investors any direct rights related to the protection of investments and institution of international arbitral proceedings against host states.

In turn, probably the most famous decision of the PCIJ, in the Chorzów Factory case5, also from 1928, which coined the principle which has ever since remained the Alpha and the Omega of the international law of state responsibility for wrongful acts. It is quoted today in dozens of judicial and arbitral decisions worldwide, and its dictum was incorporated into the Articles of State Responsibility drafted by the International Law Commission.

More recently, Polish cases pending before the European Court of Human Rights, including Broniowski v. Poland6 and Hutten-Czapska v. Poland7, have contributed to the development of the doctrine of systemic violation of the European Convention. This concerns a situation where violation of an international instrument of human rights protection does not result from an individual act, but rather stems from structural problems, inherently embedded in the legal system of the responding state, which imply a de facto automatism of a human rights violation in a particular, repeating factual pattern.

It is also impossible not to mention on this occasion the Elektrim case, which electrified the international arbitration community with the peculiarities of the Polish insolvency law. Notably, under the legislation in question, opening of bankruptcy proceedings leads to an automatic voidance of all arbitration agreements to which the insolvent debtor is a party, and requires arbitral tribunals to discontinue all pending arbitral proceedings. The problems resulting from the application of this domestic rule to arbitral proceedings pending abroad has led, as it is widely known, to divergent solutions adopted by the English8 and Swiss9 courts, and stirred a hot debate.

All these instances stand as evidence that Poland is not a lonely island on the map of international law. The interactions are frequent and symbiotic. Decisions, which are rendered every day by international courts and tribunals, do matter for the development of Polish domestic legal order, even if they do not involve Poland directly in a given case. On the other hand, Polish decisions and Polish cases do matter to the international community. It was just a few weeks ago when a well-known electronic news service affirmed the international interest in the details of investment treaty cases involving Poland.

The need for bipolar exchange of information is thus noticeable. This blog seems to be a convenient forum to familiarize Polish readers with foreign and international decisions in contentious matters that may be of relevance for Poland. We hope in turn that foreign readers will find here interesting information on Polish cases with international reach. You are most welcome to follow the forthcoming posts!

  1. A hint is made to a rhyme of unknown origin dedicated to Copernicus, which is widely taught at Polish schools: “He stopped the Sun and moved the Earth, the Polish Nation gave him birth.”
  2. The case of the Jurisdiction of the Courts of Danzig, advisory opinion of PCIJ No. 15 of 3 March 1928, PCIJ Publ. B Series.
  3. Judgment of ECJ of 5 February 1963 in the case 26/62 N.V. Algemene Transport- en Expeditie Onderneming van Gend & Loos, Rec. 1963, p. 3.
  4. The case of Ecuador v. Occidental Exploration and Production Company, judgment of the Court of Appeal of 9 September 2005, International Legal Materials 2006, p. 255.
  5. The case of Chorzów Factory (Germany v. Poland), judgment of PCIJ No. 17 of 13 September 1928 (merits); PCIJ Publ. A Series.
  6. The case Broniowski v. Poland, Application No. 31443/96, judgment of ECHR (Grand Chamber) of 22 June 2004.
  7. The case Hutten-Czapska v. Poland, Application No. 35014/97, judgment of ECHR (Grand Chamber) of 19 June 2006.
  8. Syska et al. v. Vivendi Universal et al., judgment of the High Cort of Justice Queen’s Bench Division Commercial Court (Ch. Clarke) of 2 October 2008, [2008] EWHC 2155 (Como), 2008 WL 4125375 and Syska et al. v. Vivendi Universal et al., judgment of the Court of Appeal of 9 July 2009 r., [2009] EWCA Civ 677.
  9. Judgment of Bundesgerichtshof of 31 March 2009 in the case Vivendi S.A. et al. v. Elektrim S.A. et al., file no. 4A_428/2008, available at www.bger.ch)