A R B I T R A T I O N e - R E V I E W No. 3-4 (18-19)/2014 SCIENTIFIC COUNCIL: Dr. Łukasz Błaszczak, Dr. Maria Dragun-Gertner, Dr. Beata Gessel Kalinowska vel Kalisz, Prof. Jadwiga Pazdan, Prof. Jerzy Poczobut, Prof. Jerzy Rajski, Prof. Marek Michalski, Prof. Andrzej Szumański EDYTORIAL BOARD: Dr. Jadwiga Pazdan Dr. Piotr Zapadka EDITOR OF THE ISSUE: Dr. Beata Gessel-Kalinowska vel Kalisz SECRETARY EDITOR: Agnieszka Różalska-Kucal, [email protected] GRAPHIC DESIGN & PREPRESS: Graffidea, www.graffidea.pl ISSN: 2083-8190 Sąd Arbitrażowy przy Konfederacji Lewiatan Lewiatan Court of Arbitration Zbyszka Cybulskiego Str. 3 00-727 Warsaw, Poland tel. (+48 22) 55 99 970 fax (+48 22) 55 99 910 (with notice: for the Court) e-mail: [email protected] www.sadarbitrazowy.org.pl Project co-financed by the European Union within the framework of the European Social Fund ARBITRATION e-REVIEW A RB I T R A T I O N E - R E V I E W NO. 3-4 (18-19)/2014 E D Y T O R I A L 5 A R T I C L E S 6 THE ARBITRATION CLAUSE IN AN UNDERLYING CONTRACT AND NON-CONTRACTUAL CLAIMS ARISING IN CONNECTION WITH SUCH CONTRACT Dr. Wojciech Sadowski; Ewelina Wętrys, LLM 41 THE LAW APPLICABLE TO THE EFFECTS OF AN ARBITRAL AWARD Dr. Maciej Zachariasiewicz, LLM (CEU) 62 THE CONTRACT WITH THE ARBITRATOR (RECEPTUM ARBITRII) AND THE CONTRACT OF MANDATE – A COMPARATIVE ANALYSIS Dr. Karol Zawiślak A N A LY S S E S & O P I N I O N 77 DISPUTE ARBITRABILITY AND THE ARBITRATION CLAUSE IN CORPORATE DISPUTES 79 COMMENTARY Attorney-at-Law. Rafał Kos 85 BANKRUPTCY AND DISPUTE ARBITRABILITY 89 COMMENTARY Dr. Marcin Dziurda 3 E D Y T O R I A L A N A LY S S E S & O P I N I O N 93 APPLICATION OF THE PROVISIONS OF THE CODE OF CIVIL PROCEDURE IN ARBITRATION PROCEEDINGS 98 SUBSTANTIVE LAW STATEMENTS MADE BY AN ATTORNEY; APPLICATION OF THE PROVISIONS OF THE CODE CIVIL PROCEDURE IN ARBITRATION PROCEEDINGS 100 COMMENTARY Advocate Stanisław Drozd 106 EXTENSION OF THE ARBITRATION CLAUSE 108 COMMENTARY Dr. Marek Jeżewski 113 THE GOVERNING LAW – GENERAL PRINCIPLES OF LAW 119 THE GOVERNING LAW – GENERAL PRINCIPLES OF LAW 4 ARBITRATION e-REVIEW Dear Readers, Today, we present you a new issue of our magazine. On the begin- ning, we recommend you reading the three articles on the extensive problems. The first one deals with issue of non-contractual claims examina- tion, relating to the contract containing the arbitration clause. This is DR. BEATA GESSEL- -KALINOWSKA an exceptionally live issue in the light of the last numerous court deci- vel KALISZ sions. The Authors, Wojciech Sadowski and Ewelina Wętrys, in addition President of the Lewiatan Court of Arbitration to discussion on Polish legal order, make legal-comparative analysis and present their own conclusions. Maciej Zachariasiewicz analyzes the possible answers to the question of which law should be relevant to the assessment of the effects of an arbitration award issued abroad: the law of the country of origin or the law of its implementation. The Author does not confine himself only to the dogmatic analysis, univer- sal for any effects of the court decisions, but also evaluates the spe- cific effects of a judgment, in particular in the area of res judicata and limitation of claims identified by arbitration award. In the third article, Karol Zawiślak analyzes the agreement to act as an arbitrator in com- parison with the order agreement, which is a part of a bigger issue of the legal classification of the relationship between arbitrator and arbi- trants. It is worth to look at a series of judgments SA Lewiatan, which stimulate a broader reflection, annotated practitioners and academics: Stanisław Drozd, Marcin Dziurda, Marek Jeżewski, Rafał Kos and Tomasz Stawecki. We wish you having a good reading, Dr. Beata Gessel Kalinowska vel Kalisz President of the Lewiatan Court of Arbitration 5 The arbitration clause in an underlying contract and non-contractual claims arising in connection with such contract ■ Dr. Wojciech Sadowski, Ewelina Wętrys LL.M. Lawyers at K&L Gates Jamka law office INTRODUCTION Polish Chamber of Commerce in Warsaw pur- suant to the Rules of this Court binding on the There are a number of arbitration clauses to date of filing the statement of claim.”2 The be found in business transactions, providing model arbitration clause of the International for submission to arbitration of any disputes Court of Arbitration at the International Chamber “arising out of the contract” or “arising in con- of Commerce in Paris provides that: “All dispu- nection with the contract.” The wording of such tes arising out of or in connection with the pre- clauses frequently corresponds to that of the sent contract shall be finally settled under the model clauses, recommended by permanent Rules of Arbitration of the International courts of arbitration. For example, the arbitra- Chamber of Commerce by one or more arbi- tion clause recommended by the Court of trators appointed in accordance with the said Arbitration at the Polish Confederation Lewiatan Rules.”3 Whereas the Arbitration Institute of reads as follows: “Any dispute arising out of the Stockholm Chamber of Commerce sug- or related to this contract shall be finally set- gests the following wording of a model arbi- tled by the arbitral tribunal at the Lewiatan tration clause: “Any dispute, controversy or Court of Arbitration in Warsaw in accordance claim arising out of or in connection with this with the Rules of that Court in effect on the contract, or the breach, termination or invali- date of commencement of proceedings.”1 The dity thereof, shall be finally settled by Court of Arbitration at the Polish Chamber of 2. Model arbitration clause proposed by the Court of Arbitration Commerce in Warsaw recommends the follo- at the Polish Chamber of Commerce in Warsaw; available at wing arbitration clause: “All disputes arising http://sakig.pl/pl/arbitraz modelowe-klauzule-arbitra%C5%B Cowe. out of or in connection with this contract shall 3. Rules of Arbitration of the International Court of Arbitration at be settled by the Court of Arbitration at the the International Chamber of Commerce in Paris; available at: http://www.iccwbo.org/Products-and-Services/Arbitration- 1. Rules of the Court of Arbitration at the Polish Confederation and-ADR/Arbitration/Rules-of-arbitration/Download-ICC- Lewiatan; available at http://www.sadarbitrazowy.org.pl/upload/ Rules-of-Arbitration/ ICC-Rules-of-Arbitration-in-several Rules1032012.pdf. -languages/. 6 ARBITRATION e-REVIEW arbitration in accordance with the Arbitration case law established by Polish courts5. Rules of the Arbitration Institute of the However, it lacks a thorough justification. Stockholm Chamber of Commerce.” It should be noted in this connection that When a dispute arises in connection with a situation whereby a single event constitutes a contract containing such an arbitration concurrently an instance of improper perfor- clause, there can arise the question of whether mance of a contractual obligation and a tort, or not such clause may serve as grounds for actually consists in a co-occurrence of ex pursuing in arbitration also claims of non-con- delicto and ex contractu claims. What distin- tractual nature, and in particular claims in tort guishes a contractual claim from a tort claim or impermissible or unjust enrichment claims. in such a case is the legal ground for the claim. The case law of Polish courts on this point is This apparently trivial conclusion has, howe- yet to be fully established. Individual rulings ver, far-reaching consequences for an analy- differ among themselves and such differences sis of the scope ratione materiae of an arbi- can only partly be accounted for by the diffe- tration agreement. If, under specific rent facts of each such case, and in particu- circumstances, the Polish case law and lar by different wording of the arbitration clau- jurisprudence allow of a situation in which the ses. In addition, those rulings lack a systemic parties to an arbitration agreement are permit- approach to and justification for the issue ted to switch from the contractual regime to discussed in this paper. the tort regime, such development is of a fun- damental and qualitative nature. The question The Polish literature on commercial arbitra- whether a typical arbitration agreement provi- tion also lacks a thorough and systematized des grounds for pursuing tort claims becomes analysis of the issue of whether and on what irrelevant. This is so due to the fact that both conditions an arbitration clause incorporated the case law and the jurisprudence give, as into a contract covers non-contractual claims a rule, an affirmative answer to this question. relating to that contract. It is pointed out in the What becomes relevant, however, is the issue literature that an arbitration agreement provi- to what extent and under what circumstances des, as a rule, grounds for the jurisdiction of tort claims are permitted to be pursued. It is a court of arbitration over tort or quasi-tort cla- indisputable that tort disputes are essentially ims if the same concurrently constitute an arbitrable,6 and that the principles of contract instance of non-performance or improper per- interpretation set forth in Article 65 of the Civil formance of a contractual obligation.4 This view has undoubtedly emerged as a result of the 4. See Tomaszewski M., [in:] A. Szumański (ed.), Arbitraż handlowy. Tom 8, 2010, pp. 326-327; Ereciński T., Weitz K., 5. See Section 2.1 below. Sąd arbitrażowy, 2008, p. 153; Wiśniewski A. W., Międzynarodowy arbitraż handlowy w Polsce. Status prawny arbitrażu i arbitrów, 6. See Tomaszewski M., [in:] A. Szumański (ed.), Arbitraż 2011, p. 395; Pruś P., [in:] M. Manowska (ed.), Kodeks handlowy. Tom 8, 2010, p. 324; Ereciński T., Weitz K., Sąd postępowania cywilnego. Komentarz, 2nd ed., 2013, p. 1761. arbitrażowy, 2008, p. 116. 7 Code apply also to the arbitration agreement.7 prevailing approach adopted in the case law Therefore, one should consider whether the so far. This paper argues that there are no prevailing view according to which the admis- obstacles under Polish law preventing a change sibility of pursuing non-contractual claims in and standardization of the approach adop- before a court of arbitration is conditional upon ted in the case law, in line with the trends fol- the co-occurrence of contractual and tort cla- lowed by foreign systems of law, exercising ims is sufficiently supported and whether it is the most potent influence on arbitration. The not an arbitrary view. In this paper, an attempt fourth part of this paper contains will be made to prove that this view is incor- conclusions. rect and based on incorrect assumptions. COMPARATIVE LAW ANALYSIS The first part of this paper is a review of foreign legislation, jurisprudence and case law on arbitration. It reveals that a relatively con- 1. International treaties sistent approach in favor of respecting the will of the parties to an arbitration agreement is Multilateral international treaties have an impor- being developed, along with a pro-arbitration tant role to play in the practice of arbitration. As interpretation of arbitration agreements. The a rule, such treaties not only regulate enforce- second part presents Polish courts’ case law ment of arbitral awards rendered in a contrac- on the issue in question, as well as the views ting state but also oblige the contracting states expressed in this respect in the Polish litera- to recognize the validity of arbitration agreements. ture. An analysis of the foregoing leads to the The foregoing gives rise to the question whether conclusion that the case law of the Supreme and how the provisions of international treaties Court and the views expressed in the jurispru- regulate the scope ratione materiae of arbitra- dence tend to follow the worldwide trend. tion clauses and their interpretation, and, in con- However, the case law is inconsistent and par- sequence, whether they contain any obstacles tly incorrect, which may be the consequence preventing non-contractual disputes from being of the absence of a systemic approach to the submitted to arbitration. issue in question and of a detailed analysis thereof. Based on the foregoing, the third part Article I of the Protocol on Arbitration of this paper calls for a change in the Clauses signed in Geneva on September 24, 1923 stipulates that “[e]ach of the Contracting States recognizes the validity of an agreement 7. See resolution of the Supreme Court, dated March 8, 2002, III CZP 8/02, Lex No. 51699; decision of the Supreme Court, whether relating to existing or future differen- dated March 1, 2000, I CKN 1311/98, Lex No. 138641; ces between parties subject respectively to judgment of the Court of Appeal in Poznań, dated July 3, 2006, I ACa 46/06, Lex No. 278461; Morek R., [in:] E. Marszałkowska- the jurisdiction of different Contracting States Krześ (ed.), Kodeks postępowania cywilnego. Komentarz, 2014, by which the parties to a contract agree to as available in the Legalis database; Piasecki K., Kodeks postępowania cywilnego. Tom IV. Przepisy z zakresu submit to arbitration all or any differences that międzynarodowego postępowania cywilnego. Sąd polubowny may arise in connection with such contract (arbitrażowy). Regulacje prawne Unii Europejskiej w sprawach transgranicznych. Komentarz, 2013, p. 408. relating to commercial matters or to any other 8 ARBITRATION e-REVIEW matter capable of settlement by arbitration, them in respect of a defined legal relationship, whether or not the arbitration is to take place whether contractual or not, concerning a sub- in a country to whose jurisdiction none of the ject matter capable of settlement by arbitra- parties is subject [emphasis added]”.8 It fol- tion [emphasis added]”.11 lows from the literal wording of the above pro- vision that the contracting states are obliged In light of the above provisions of internatio- to recognize the validity of arbitration nal conventions on arbitration, it should be conc- agreements (i.e. compromises, arbitration luded that there are no obstacles preventing an clauses) under which entities submit to arbi- arbitration agreement from covering non-con- tration disputes which might arise from a con- tractual disputes, including claims in tort. Just tract and which relate to commercial or other the opposite, the conventions referred to above issues. The wording of this provision does not either expressly permit execution of arbitration preclude the contracting states from recogni- clauses which submit to arbitration non-con- zing the validity of an arbitration agreement tractual disputes or generally provide that arbi- covering disputes of non-contractual nature. tration agreements may cover any issues of commercial nature. The international conven- A similar conclusion follows from the pro- tions referred to above treat non-contractual vision of Article 1.1(a) of the European disputes in the same way as those arising direc- Convention on International Commercial tly from a contract. The only requirement to be Arbitration, done at Geneva on April 21, 1961, met by the scope ratione materiae of an arbi- which defines the arbitration agreement as tration agreement is, with respect to both con- “[an] (…) agreement concluded for the pur- tractual and non-contractual disputes, that such pose of settling disputes arising from interna- disputes be arbitrable. tional trade [emphasis added] (…)”.9 Whereas Article II.1 of the Convention on the Recognition However, the above conclusion itself does not and Enforcement of Foreign Arbitral Awards, determine whether arbitration clauses, and in par- done at New York on June 10, 1958 (the “New ticular the model ones, cover submission to arbi- York Convention”),10 explicitly orders the con- tration of non-contractual disputes, including tracting states to recognize “an agreement in torts, in any specific set of circumstances. The writing under which the parties undertake to provisions of international law do not contain any submit to arbitration all or any differences guidelines or binding norms explicitly regulating which have arisen or which may arise between interpretation of the scope ratione materiae of an arbitration agreement, or listing the non-contrac- 8. Protocol on Arbitration Clauses, done at Geneva on September tual disputes covered by a specific model arbitra- 24, 1923, ratified by Poland, Dz. U. [Journal of Laws] of 1931 tion clause. However, the absence of any additio- No. 84, Item 648. nal criteria to be satisfied by non-contractual 9. European Convention on International Commercial Arbitration, done at Geneva on April 21, 1961, ratified by Poland, Dz. U. claims in order to be arbitrable suggests that the [Journal of Laws] of 1964 No. 40, Item 270. methods employed to construe arbitration 10. Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York on June 10, 1958, ratified by Poland, Dz. U. [Journal of Laws] of 1962 No. 9, Item 41. 11. the New York Convention, op. cit. 9 clauses with respect to contractual and non-con- arising from all relations of a commercial nature, tractual disputes should not be different either. whether contractual or not. And in the explana- And since they are not expressly provided for in tory note on the UNCITRAL Model Law, it is internationally applicable regulations, one can only pointed out that Article 1.1 calls for a broad inter- look for them in national laws. pretation of the term commercial.16 2. The UNCITRAL Model Law The foregoing authorizes several important conclusions. First, the UNCITRAL Model Law Numerous foreign arbitration laws draw upon recognizes validity of arbitration agreements the solutions adopted in the Model Law on covering disputes of non-contractual nature. International Commercial Arbitration develo- Second, the UNCITRAL Model Law does not ped by the United Nations Commission on introduce any special criteria to be satisfied by International Trade Law (UNCITRAL) (the such disputes in order to be arbitrable. Third, “UNCITRAL Model Law”).12 When working in the method of extensive interpretation is prefe- 2005 on amendment to Part V of the Code of rable when construing an arbitration agreement. Civil Procedure,13 the Polish legislative autho- Fourth, the UNCITRAL Model Law does not rity also took into account the provisions of the contain any binding instructions as to the UNCITRAL Model Law.14 methods of interpretation to be employed when determining the scope ratione materiae of an Pursuant to Article 7.1 of the UNCITRAL arbitration agreement. This means that the Model Law, the arbitration agreement is “an method of interpretation employed to construe agreement by the parties to submit to arbitration an arbitration agreement may depend on the all or certain disputes which have arisen or which principles of contract interpretation adopted in may arise between them in respect of a defined specific legal systems. This should not strike us legal relationship, whether contractual or not as surprising. And since the arbitration agreement [emphasis added]”.15 Article 1.1 of the UNCITRAL is a declaration of its parties’ intent, its interpre- Model Law provides that the Law applies to inter- tation may, and even should, follow the same national commercial arbitration, while footnote 2 rules as interpretation of other contractual pro- to this article says that the term commercial visions. As it is pointed out further on in this should be construed so as to cover matters paper, interpretation of the arbitration agreement is normally governed by the same rules which govern interpretation of contractual provisions 12. Adopted by the United Nations Commission on International Trade Law on June 21, 1985 and amended on July 7, 2006, under the applicable law.17 UN documents A/40/17, annexes I and A/61/17, annex I. 13. Act of July 28, 2005 on Amendment to the Code of Civil 16. Explanatory Note by the UNCITRAL Secretariat on the 1985 Procedure, Dz. U. [Journal of Laws] of 2005 No. 178, Item 1478. Model Law on International Commercial Arbitration as amended 14. Statement of reasons to the draft Act on Amendment to the in 2006, Section 12. Code of Civil Procedure and to the Bankruptcy and Rehabilitation 17. See Redfern A., Hunter J. M. et al., Redfern and Hunter Law, Printed Matter No. 3434 of the 4th Sejm of the Republic on International Arbitration, 2009, p. 109; Lew J. D. M., Mistelis of Poland; available at http://orka.sejm.gov.pl/Druki4ka.nsf/ L. A., Kröll S. M., Comparative International Commercial wgdruku/3434/$file/3434.pdf Arbitration, 2003, p. 150; Born G. B., International Commercial 15. UNCITRAL Model Law, op. cit. Arbitration, 2014, pp. 1320-1325. 10