Editorial Board - sadarbitrazowy.org.pl · Jacek Kaczmarek, Jerzy Rajski, Beata Gessel-Kalinowska...
Transcript of Editorial Board - sadarbitrazowy.org.pl · Jacek Kaczmarek, Jerzy Rajski, Beata Gessel-Kalinowska...
Editorial Board:
Prof. Dr.. Andrzej Szumański, Sylwester Pieckowski, Wojciech Błaszczyk, Dr. Beata Gessel-Kalinowska vel Kalisz, Dr. Andrzej W. Wiśniewski,
Paweł Pietkiewicz, Dr. Rafał Morek, Tomasz Zbiegień
Editors and coordinators: Dr. Beata Gessel-Kalinowska vel Kalisz, [email protected];
Dr. Rafał Morek, [email protected]
Secretary Editor:
Agnieszka Różalska, [email protected].
Court of Arbitration at PCPE Lewiatan
Flory Street 9/3
00-586 Warsaw
tel. (+48 22) 565 20 70
fax (+48 22) 565 20 95
e-mail: [email protected]
www.sadarbitrazowy.org.pl
Project co-financed by the European Union within the framework of the European Social Fund
Issue No. 3(6)/2011:
DEBATE OPENING
Debate Commercial Arbitration in the 21st Century in Poland and Europe: decline or development?
Beata Gessel-Kalinowska vel Kalisz, Marek Michal-ski, Maciej Szpunar, Maciej Bobrowicz
4
PART I IDEOLOGICAL ORIGINS OF ARBITRATION
– WHAT VIRTUES SHOULD BE PROMOTED AND PROMULGATED?
Introduction Beata Gessel-Kalinowska vel Kalisz 8
Discussion
Jerzy Rajski, Marcin Dziurda, Jolanta Nowakowska-Zimoch, Ewa Nowińska, Małgorzata Podrecka, Krzysztof Stefanowicz, Ireneusz Matusiak, Aleksand-er Chłopecki, Zbigniew Banaszczyk, Tomasz Wardyński
12
PART II ARBITRATION AND THE NEED FOR LEGISLATIVE CHANGES
HAS THE TIME COME FOR A CHANGE IN THE MODEL OF THE APPLICATION FOR SETTING ASIDE AN ARBITRAL AWARD?
Introduction Bartosz Krużewski 25
Discussion Karol Weitz, Tadeusz Ereciński, Aleksander Chłopecki, Ireneusz Matusiak, Beata Gessel-Kalinowska vel Ka-lisz, Jerzy Rajski, Rafał Morek, Barbara Grabowska, Paweł Pietkiewicz
31
PART III CAN POLAND BECOME A EUROPEAN ARBITRATION CENTRE?
Introduction Maciej Jamka 41
Discussion Tomasz Wardyński, Paweł Pniewski, Karol Weitz, Jacek Kaczmarek, Jerzy Rajski, Beata Gessel-Kalinowska vel Kalisz, Małgorzata Surdek
45
SUMMARY
Andrzej Kidyba, Beata Gessel-Kalinowska vel Kalisz, Marek Michalski
53
Debate: Commercial Arbitration in the 21st century
in Poland and in Europe: decline or development?
15th April 2011, Hotel Bristol, Warsaw
p. 4 | Arbitration e-Review, No 3 (Summer) 2011
DEBATE OPENING
Dr. Beata Gessel-Kalinowska vel Kalisz: Let
me welcome you all to our debate. I must admit
that this debate is a dream come true for me
and I hope that this is how a constructive dis-
cussion on Polish arbitration will begin.
Once in a while the issue of arbitration sur-
faces, although discussions about it are rare.
The programme for the current debate, which I
prepared, tackles issues which are related to
both the practical aspects of arbitration and the
more doctrinal ones.
First of all I would like to thank Mr. Radosław
Sikorski, the Minister of Foreign Affairs, for
agreeing to this discussion taking place under
his auspices. I am convinced that one of the
themes of today’s debate is crucial, i.e. the
question of our place on the map of European
and international arbitration. I would also like
to thank Mr. Krzysztof Kwiatkowski, the Minis-
ter of Justice, who also agreed to give this de-
bate his endorsement. Unfortunately, he could
not be here with us today. I believe that the
patronage we have been granted is of para-
mount importance to the development of, and
changes to, arbitration. I would like to cordially
thank Professor Rajski and Professor Sołtysiń-
ski, who provided us with substantive and or-
ganizational assistance. Unfortunately, Profes-
sor Sołtysiński could not be here with us but
sends his regards.
Let me now introduce the participants in the
debate. Please note that the seating order is not
accidental. First of all, there are the representa-
tives of state institutions who agreed to take
part in our debate. I would like to welcome Mr.
Maciej Szpunar, the Minister from the Ministry
of Justice. Please also welcome Ms. Joanna
Kiełkowska, who is the Head of the Business
Affairs Division of the Department of Common
Courts in the Ministry of Justice, as well as Jus-
tice Michał Dąbrowski, a representative of the
Ministry of Justice. I would also like to extend
my warm welcome do Dr. Marcin Dziurd,
President of the State Treasury’s Solicitors’
Office, who is very often involved in arbitration
proceedings, and Mr. Maciej Bobrowicz, the
President of the National Board of Legal Advi-
sors.
The second group of professionals who are par-
ticipating in today’s debate consists of repre-
sentatives of arbitration institutions. We have
in our group Prof. Aleksander Chłopecki, who
chairs the Arbitration Court at the Polish Fi-
nancial Supervision Authority. We welcome
Prof. Bernadeta Fuchs, the head of the Arbitra-
tion Court at the Chamber of Commerce and
Industry in Katowice, and Ms. Elżbieta Kor-
natka, the Court Secretary at PKPP Lewiatan,
who is known to many of you as a legendary
figure in the field of arbitration; and Mr.
Andrzej Jankowski, Vice President of the Arbi-
tration Court at the Association of Polish Banks.
Let me welcome Mr. Jacek Kaczmarek, Vice
Arbitration e-Review No. 3 (Summer) 2011 | p. 5
DEBATE OPENING
President of the Arbitration Court at the Cham-
ber of Commerce and Industry in Nowy To-
myśl, for which today is a big day due to an in-
ternational conference taking place there - to
which we shall, most likely, refer in the third
part of our discussion. We also have with us Mr.
Ireneusz Matusiak, President of the Arbitration
Court concerning internet domains, and Mr.
Paweł Pniewski, General Secretary of the ICC
Polish National Committee.
Our group also consists of academics - whom I
have not yet enumerated - distinguished due to
the positions they hold in arbitration institu-
tions. I would also like to welcome, this time in
an alphabetical order, the following people: Dr.
Zbigniew Banaszczyk from Warsaw University,
Prof. Adam Brzozowski from Warsaw Univer-
sity, Prof. Tadeusz Ereciński from Warsaw Uni-
versity, the President of the Supreme Court and
also, especially important for us today, the head
of the Codification Committee. Let me also wel-
come Prof. Andrzej Kidyba from the Maria Cu-
rie-Skłodowska University, Prof. Marek Michal-
ski from the Cardinal Stefan Wyszyński Univer-
sity, Prof. Ewa Nowińska from the Jagiellonian
University, Prof. Karol Weitz from Warsaw
University, Dr. Rafał Morek from Warsaw Uni-
versity and also the editor of „E-Przegląd Arbi-
trażowy” (Arbitration electronic newsletter).
I would also like to welcome some people
highly regarded in the field of arbitration: Mr.
Maciej Jamk, a lawyer from K&L Gates, Mr. Bar-
tosz Krużewski, a lawyer from Clifford Chance,
Ms. Jolanta Nowakowska-Zimoch, a lawyer
from Hogan Lovells, Mr. Paweł Pietkiewicz, a
lawyer from White & Case, Dr. Małgorzata Po-
drecka, Head of the Legal Department in Can-
Pack S.A., Dr. Krzysztof Stefanowicz and Ms.
Małgorzata Surdek from CMS Cameron
McKenna, Mr. Tomasz Wardyński, a lawyer
from Wardyński i Wspólnicy and Prof. Andrzej
Wierciński from Wierciński Kwieciński Baehr.
We also have with us a representative of the
Helsinki Foundation for Human Rights, Ms.
Barbara Grabowska. I also extend a warm wel-
come to the representatives of the media. Mr.
Krzysztof Sobczak will listen to our debate and
Mr. Marek Domagalski will join us shortly.
Let me also welcome our online audience.
There is live coverage of the debate via the
website of the Court of Arbitration at PKPP
Lewiatan. All internet users are encouraged to
voice their opinions and comments. You can
either do it through the website or via elec-
tronic mail.
Let me now give the floor to Prof. Marek
Michalski, who will conduct the debate and
whom I wish to thank cordially for accepting
our invitation.
Prof. Marek Michalski: Thank you very much.
Let me welcome you all. Following what was
said by the preceding speaker, I hope that
maybe in the future, not necessarily in a couple
of years but rather in a dozen or so, debates
such as this will have audiences of millions.
This is certainly what we wish for. We are al-
ready using new technologies to our advantage
and, as far as I understand, we are being
watched the whole time.
Let me ask Mr. Maciej Szpunar, Undersecretary
of State responsible for legal and treaty issues
at the Ministry of Foreign Affairs, to take the
floor.
Maciej Szpunar, Undersecretary of State re-
sponsible for legal and treaty issues at the
Ministry of Foreign Affairs: Thank you. Ladies
and gentlemen, first of all I would like to thank
you for the opportunity for the Ministry of For-
eign Affairs to give its patronage to this event,
and I also wish to congratulate you on such a
p. 6 | Arbitration e-Review, No 3 (Summer) 2011
DEBATE OPENING
wonderful initiative. The Ministry of Foreign
Affairs is not involved in arbitration, but the
functioning of arbitration, and in particular
international arbitration is, in my opinion, of
paramount importance to the tasks that face
the Ministry of Foreign Affairs.
I wish to tackle the following two issues.
This conference should really be the focus of
attention because it tackles general aspects of
arbitration. One can even say that it is about
the axiology of arbitration, about what arbitra-
tion is, what model should be applied, and
whether Poland could become an arbitration
centre. There are no doubts that the answers
to such questions depend upon whether arbi-
tration in Poland will be strong, whether en-
trepreneurs in Poland will refer to arbitration
proceedings in disputes between themselves,
and to what extent Poland can become a place
for international arbitration.
I would like to share a general thought with
you. Irrespective of what provisions of law we
apply in Poland and what solutions we reach
with respect to complaints and the challenging
of arbitration awards, the popularity of arbitra-
tion and the importance of Poland as a place for
arbitration will depend most of all on the qual-
ity, strength and stability of the Polish State.
Let me put it this way, if Poland is a popular
place for arbitration, it will mean that Poland is
perceived as a stable country in all meanings of
this word, i.e. that Poland is a state in which
state jurisdiction functions properly.
The fact that arbitration constitutes an alterna-
tive to the jurisdiction of the state does not
mean that the worse the state jurisdiction func-
tions, the better arbitration functions. On the
contrary. Both have to function properly. If Po-
land were a popular place for arbitration, it
would mean that Poland plays an important
role in the international economy, at least on a
regional scale. It would also mean that Poland
has good relations with its neighbours, maybe
not excellent, but at least transparent. Poland is
perceived as a country which can overcome
differences between states. If Poland were an
arbitration hub, it would also mean that Polish
legal ideas are highly recognized and can influ-
ence international law and other legal systems.
It would also mean that Poland has played its
card well as the biggest country in this part of
Europe. It would be perceived as a country
which successfully carried out the transforma-
tion of its economy and which significantly con-
tributes to the policy of the European Union
towards its Eastern neighbours.
I hope you can see that the success of arbitra-
tion is linked with the goals of the Ministry of
Foreign Affairs; therefore, Mr. Sikorski had no
doubts with respect to the Ministry’s patronage
concerning today’s debate.
I also have to apologize for leaving the debate
earlier but, unfortunately, I have some previous
commitments to attend to. I wish you a suc-
cessful debate and I look forward to hearing
about its results. Thank you once again for hav-
ing me here.
Maciej Bobrowicz, lawyer, President of the
National Board of Legal Advisers: Minister,
President of the Supreme Court, Ms. Gessel, I
would like to thank you very much for inviting
me to such an important debate. It is important
not only for entrepreneurs - our clients - but it
is also important for us, the lawyers, both theo-
reticians and practitioners. When I familiarized
myself with the results of research on arbitra-
tion in Poland, which you can find in your de-
bate materials, I realized that arbitration is not
very popular: 410 cases before the Arbitration
Court at the Polish Chamber of Commerce and
Arbitration e-Review No. 3 (Summer) 2011 | p. 7
DEBATE OPENING
25 cases before the Arbitration Court at PKPP
Lewiatan. We could ask ourselves what the
reason is for such a state of affairs. It is a crucial
question. If we find the cause we will also be
able to find the solution. Why, for so many
years, could arbitration as a concept not get its
message heard by entrepreneurs and practic-
ing lawyers?
In my opinion, one of the reasons lies in the low
level of legal awareness of Poles. If 67% of en-
trepreneurs are of the opinion that they do not
need a lawyer because their type of enterprise
does not need the support of lawyers, the OBOP
research speaks for itself. If 66% of citizens
share this view, and 87% of micro entrepre-
neurs have never hired a lawyer, the chance, in
such circumstances, of a lawyer appearing and
suggesting arbitration as the most effective
way of resolving a dispute, is zero.
There is also another question. Namely, in en-
terprises which actually employ lawyers, why
do those lawyers not recommend arbitration as
the best solution? This is an important ques-
tion. PriceWaterhouseCoopers together with
Viadrina University carried out some extremely
interesting research - not on arbitration but on
mediation, which is another method of resolv-
ing disputes. The research was based on big
corporations. The questions asked were the
following: Do you know all the advantages of
mediation? – Yes, I do. Do you know what me-
diation is? – Yes, I do. Do you use mediation? –
No. I don't. The researchers failed to clarify the
reasons for this situation. Perhaps it would be
important to carry out such research in Poland.
Maybe we should ask the practitioners about it,
those who are the key keepers, as the English
put it, and who open or close the doors to arbi-
tration or mediation.
As far as mediation is concerned, the situation
is simple. The majority of practitioners are of
the opinion that mediation is not financially
profitable for them. This argument does not
work in the case of arbitration. The important
question is, why we, legal advisors or attor-
neys-at-law, do not perceive arbitration pro-
ceedings as an effective method of dispute
resolution. Maybe some research would enrich
our knowledge on the subject and enable us to
look for some effective solutions.
I wish you a successful discussion and interest-
ing results. Thank you very much.
Ideological origins of arbitration – what virtues should be promoted and promulgated?
Panel Moderator: Prof. Jerzy Rajski
Introduction by: Dr. Beata Gessel-Kalinowska a.k.a. Kalisz Panel Participants: Prof. Jerzy Rajski; Dr. Marcin Dziurda; Jolanta Nowakowska-Zimoch;
Prof. Ewa Nowińska; Dr. Małgorzata Podrecka; Dr. Krzysztof Stefanowicz; Ireneusz Matusiak; Prof. Aleksander Chłopecki; Dr. Zbigniew Banaszczyk; and Tomasz Wardyński
p. 8 | Arbitration e-Review, No 3 (Summer) 2011
PART I
Prof. Marek Michalski: Let us move to the
first part of our debate. We have given it the
following title: „The ideological sources of arbi-
tration: what values should be supported and
propagated?” Prof. Jerzy Rajski has been kindly
asked to chair the first discussion.
Prof. Jerzy Rajski: Thank you. Let me ask Dr.
Gessel to take the floor and speak about the
axiology of arbitration and the necessity of its
presence in the world economy.
Dr. Beata Gessel-Kalinowska vel Kalisz:
Thank you professor. It could take me a very
long time to speak of the importance of arbitra-
tion to entrepreneurs. I will, however, restrict
myself to 10 minutes. I have selected 5 rea-
sons, for the purpose of this debate, to justify
why entrepreneurs should be encouraged to
include arbitration clauses in agreements.
Arbitration is liberal, fast, friendly, predict-
able and confidential. Let’s say that the last
issue is the least controversial. The first reason:
Why is arbitration liberal? I also use the word
“flexible” in this context. Arbitration is liberal
for two reasons. First of all the most important
principle of arbitration is the freedom to ap-
point an arbitrator. I can choose a judge in my
own case, i.e. a person whom I trust.
I can make a choice concerning an arbitrator
taking into account a variety of criteria: e.g. I
think that such a person will run the case
smoothly, or that he or she has the appropriate
knowledge and experience with respect to the
issues which are to be adjudged. The right to
choose an arbitrator is the beginning and the
end of the arbitration, and the core of arbitra-
tion stems from this very principle. In particu-
lar, I must surrender voluntarily to the award
of an arbitrator since I chose him or her per-
sonally, and nobody imposed him or her on me.
There are several consequences that stem from
such an assumption, and in fact the whole pro-
cedural side of arbitration arises from this very
principle. First of all, arbitration is, in general, a
single-instance court. If nobody imposes an
arbitrator on me, I do not have to subject the
award to control before a court of the second
instance. This is how I understand the arbitra-
tion court as the court of single instance. The
other issue which concerns the liberal aspect of
arbitration is the fact that I can personally, as
an entrepreneur, or a lawyer, select the rules
according to which my case is to be examined. I
can define the time-frame of particular actions,
I can choose whether a case is to be tried in an
institutional court or on an ad hoc basis. If the
ad hoc method is selected, I can choose the pro-
cedure according to which the case is to be
tried. It appears then that in arbitration the
Arbitration e-Review No. 3 (Summer) 2011 | p. 9
PART I
principle of freedom of contract is truly re-
flected.
The second wonderful feature of arbitration is
the fact that it is fast. In December last year
there was a discussion in the “Gazeta Prawna”
daily, in which Professor Sołtysiński - by the
way, I regret he cannot be with us today -
voiced the opinion that arbitration proceedings
were long and costly. I ventured to disagree
with Professor Sołtysiński in the subsequently
published polemic. I calculated how long arbi-
tration proceedings last before the Lewiatan
Arbitration Court as I have access to such data.
It turned out that last year each case was set-
tled within 6 months on average. If we take into
account five years and approximately 50 set-
tled cases, the average length per case was 6.5
months. We do not hear a great many cases, but
50 cases could constitute a sample on the basis
of which the length of the arbitration proceed-
ings may be reviewed. At the preparation stage
of this debate, I asked several arbitration insti-
tutions to share their data and it turned out
that Lewiatan Arbitration Court was not an
exception. The Court of Arbitration for Internet
domains which deals with single-issue cases
settles disputes in 1.5 to 3 months. It is a truly
efficient institution. We have also received data
from the Arbitration Court in Nowy Tomyśl.
Their time frame for settling disputes is 7
months. In this light, the opinion that arbitra-
tion proceedings are lengthy is slightly far
fetched. There is a general opinion after the
Vivendi case that arbitration proceedings take
years, are very complicated, and are beset by
legal loopholes. We have to bear in mind that in
this case, even the registration of the manage-
ment board took a couple of years, so it is not a
good example for disqualifying arbitration pro-
ceedings due to their pace.
The next feature of arbitration is its friendli-
ness. Judging from my experience as an arbi-
trator, and I am sure that at least half of you
can share my opinion, I am sure that a situation
differs, from the psychological point of view,
when a case is adjudicated by a judge in a court
room and when people meet in a conference
room. In the case of arbitration, the disputes
are, in fact, solved in a conference room in an
atmosphere conducive to reaching agreement.
It is very important in business that there is
always sunshine after rain and that after a con-
flict people can still do business with one an-
other provided that a certain unfortunate ele-
ment in their cooperation has been resolved. It
is not a rule but, in my opinion, such a situation
is more probable in arbitration proceedings.
This is also due to the fact that the majority of
issues are agreed with the parties, such as a
timetable for the proceedings, which I shall
refer to later. Not every party to arbitration is
aware of the fact that it can actually request the
arbitrators to establish the timetable of the
arbitration at the very beginning of the pro-
ceedings and that such timetable should be
agreed with the parties. Agreeing on the man-
ner of settling disputes is not only a concilia-
tory element, but it is crucial from the perspec-
tive of the pace of the proceedings.
Arbitration is also predictable. The timetable
is the crucial issue here. I shall refer to this is-
sue from my own perspective as a practitioner.
When a client approaches us, he usually has
two questions. The first obvious one is whether
the client will win or not, and what the chances
are in percentage terms. It is a very difficult
question but is always asked.
The second question, notwithstanding winning
or losing, is when? Let me go back to the time-
table as an instrument. Even if there are delays
in a given timetable, we are still able to tell the
client when we can expect the award, and out-
line the course of the proceedings for him, e.g.
when the statement of claim is going to filed,
p. 10 | Arbitration e-Review, No 3 (Summer) 2011
PART I
when the answer to it is going to be submitted,
when the submissions will be filed and whether
the award can be expected in September or in
October. The planning of activities is important
to entrepreneurs and the timetable is a part of
such planning.
The fifth feature of arbitration is the most ob-
vious one, yet the one which is most often dis-
cussed. It is the question of confidentiality. I
think that it is particularly important to public
companies. I do not wish to concentrate on the
interpretation of legal provisions right now
because there have been many publications on
this subject. Suffice to say that the rules of all
arbitration courts contain confidentiality
clauses.
For the purpose of this debate, you have in
your materials a report which includes an es-
timate comparison of data. We have counted
the number of cases examined in institutional
courts and, on the basis of Dr. Stefanowicz’s
assumptions, we estimated the number of ad
hoc cases; we referenced it to the number of
commercial cases examined (such data are
available on the website of the Ministry of Jus-
tice) and it turned out that one-thousandth of
all the cases are tried under arbitration pro-
ceedings. Even if I got it wrong by 100%, that is
still only two-thousandths. The numbers are
shockingly small.
Therefore, I would like to pose a question.
What is the reason for this situation? If we take
into account the five features of arbitration, i.e.
that arbitration is liberal, fast, friendly, predict-
able and confidential, which I have already
mentioned, it would be a perfect tool for entre-
preneurs. Why are only one-thousandth of all
cases examined by arbitration courts? I think
that there are three issues we need to take into
account. First of all, there is no knowledge
about arbitration among lawyers and entre-
preneurs. The lack of knowledge on the part of
entrepreneurs is, in a way, more obvious. En-
trepreneurs are not obliged to know what arbi-
tration is all about and how to use it. The lack
of knowledge, however, on the part of lawyers
is an issue which is much more painful. We
have discussed with Mr. Bobrowicz the issue of
the lack of arbitration classes in the core cur-
riculum of the internship. Let’s ignore the issue
of universities because at the time of my stud-
ies, arbitration classes were optional. For a
practitioner, however, who is trying to prepare
himself to practice the profession, i.e. who par-
ticipates in an internship for legal advisors or
attorneys-at-law, it is crucial to have arbitra-
tion included in the core curriculum. I do not
have in mind very extensive classes. I think that
6 hours of classes in which the core and phi-
losophy of arbitration is explained would suf-
fice.
The second issue is the lack of procedural stan-
dards for the whole industry. Is the lack of
competence on the part of arbitrators a dis-
couraging issue? I mean the lack of competence
with respect to the technical side related to the
preparation of the arbitration proceedings. Ar-
bitration proceedings are carried out in cam-
era, and due to confidentiality issues, we can-
not really tell how the proceedings are carried
out by the arbitrators. The only circumstances
in which we can talk about such issues are con-
ferences or debates. I think that in our circles -
and by saying “our” I mean arbitrators - a feel-
ing that arbitrators play god in the proceedings
still lingers. I often come across the attitude of
arbitrators showing that they do not have to
make any effort to make the proceedings effi-
cient or to agree on timetables. They do not feel
this obligation. Yet, in fact, it is a service - very
well paid but still a service. I would like us to
discuss these issues today.
Arbitration e-Review No. 3 (Summer) 2011 | p. 11
PART I
The third problem is the barriers arising from
the legal environment. I’m thinking here about
the relations between arbitration and public
courts in areas in which they come into contact.
The basic issue is a complaint to have an arbi-
tration award overruled. This will be the sub-
ject of the subsequent panel so I will not go into
details. Apart from the complaint as such, there
are some other issues which could be discussed
and properly regulated, such as the question of
corporate disputes. But this could, just as well,
be the subject of a different conference.
At the end I wish to touch upon the issue of
whether arbitration proceedings are cheap or
expensive. The issue of arbitration costs is very
often raised. I have drawn up a comparison of
court fees and fees collected at Lewiatan. I do
not think that such fees differ much in other
arbitration courts. Let us compare court fees
for the values 10,000.00, 100,000.00, 1,000,000
and 10,000,000.00. Please look at the bottom
line which shows in which areas arbitration
proceedings are more expensive and in which
they are cheaper. I have taken into account fees
from the beginning of the proceedings until the
obtaining of a final and absolute judgement,
which in the case of a common court is two in-
stances, and in the case of Lewiatan just one.
If we approach the issue from this perspective,
it will be seen that arbitration proceedings are
not significantly more expensive, and the
higher the value in dispute, the lower are the
costs of arbitration (see table). It is, however,
only one side of the story. We will arrive at a
different result if we add post-arbitration pro-
ceedings. Just a small digression here. On the
one hand, in a normative sense, an arbitration
award is equal to a decision of a common court.
On the other hand, an arbitration award may be
subject to appeal proceedings which are more
costly and time consuming. Obtaining a com-
mon court decision in the case of a claim with
the value of PLN 1,000,000 “costs” PLN
100,000.00, and obtaining an arbitration award
with respect to a claim of the same value costs
PLN 54,000.00. This could be the end of the
story. But often, as life teaches us, parties are
unhappy with a decision or an award and con-
tinue the dispute. We should then add the costs
of appeal proceedings pertaining to the final
decision, i.e. PLN 50,000. Finally, we would ar-
rive at the amount of PLN 150,000.00 with re-
Value in dispute (in PLN) 10,000.00 100,000.00 1,000,000.00 10,000,000.00
Court fee on the claim (propor-tionate fee: 5% of the value in dispute)
PLN 500.00 PLN 5,000.00 PLN 50,000.00 PLN 100,000.00
Court fee on appeal PLN 500.00 PLN 5,000.00 PLN 50,000.00 PLN 100,000.00
Court fees in total PLN 1,000.00 PLN 10,000.00 PLN 100,000.00 PLN 200,000.00
Arbitration fee - Lewiatan
(inclusive of administration fee)
PLN 1,500.00
(administration fee together with the arbi-trator’s remuneration)
PLN 9,100.00 PLN 54,100.00 PLN 126,100.00
Difference (court fee – arbitra-tion fee)
- PLN 500.00 PLN 900.00 PLN 45,900.00 PLN 73,900.00
p. 12 | Arbitration e-Review, No 3 (Summer) 2011
PART I
spect to common courts and PLN 204,000.00 as
far as arbitration courts are concerned. Under
such circumstances, the arbitration proceed-
ings turn out to be more expensive, although
we have been very economical at the first stage
of examining the dispute.
To sum up, the issues discussed are very im-
portant when we analyze why arbitration
should be more popular and when we look into
the obstacles to such popularity.
Prof. Jerzy Rajski: Thank you Dr. Gessel. We
begin a discussion with the participation al-
ready declared by Dr. Marcin Dziurda, Mrs. Jo-
lanta Nowakowska-Zimoch, Prof. Ewa
Nowińska, Dr. Małgorzata Podrecka, and Dr.
Krzysztof Stefanowicz, so please take the floor
in that order and, subsequently, I will wait for
further volunteers to take part in our discus-
sion. Mr. Dziurda, the floor is yours.
Dr. Marcin Dziurda: Ladies and Gentlemen, to
begin with, I would like to make two reserva-
tions. First, despite Mrs. Gessel’s encourage-
ments, I will not discuss investment arbitration,
as I think it is rather commercial arbitration
that is the topic of our discussion. If we were to
talk about investment arbitration, my opinions
would be probably a bit different and, I do not
conceal it, more critical.
The other reservation is that I am here as a
member of a small group of people who might
be called clients. And it is from this point of
view that I will try to present some comments
in the timespan we have.
However, regardless of the foregoing, I do ap-
preciate that Mrs. Gessel has not specified the
sixth reason why economic arbitration is es-
sential, namely, that it is inexpensive. This
would be hypocrisy of a type. Arbitration is not
cheap. We can argue when it is expensive and
when very expensive, but one cannot say that it
is inexpensive, and especially when also takes
into account attorneys’ fees. We have to re-
member that, as we all know, attorneys’ fees
are actually at the level charged in developed
EU member states, which is out of proportion
both to the average remuneration, the gross
domestic product and other economic indica-
tors. This, in addition, makes arbitration rela-
tively more expensive for Polish entities than
for German, French or British ones.
As regards other opinions presented by Mrs.
Gessel, I share a substantial portion of the
same. However, I will begin with the issues
that raise my doubts. The time-efficiency of
arbitration is occasionally overrated. The spe-
cification drawn up by Lewiatan indicates that
arbitration proceedings are not so time-
efficient, and the long disputes referred to in
that specification are frequently over quite
simple matters. What poses a problem is the
fact that the duration of a particular arbitration
proceeding sometimes happens to be a matter
of chance. It cannot be concealed that this de-
pends, to a considerable extent, on arbitrators’
calendars, and on whether or not they manage
to agree on reasonable dates.
However, it is also clear that no generalizations
can be made in this respect, as there are both
methods of resolving disputes referred to arbi-
tration in a much cheaper and less time-
consuming manner and methods generally
more expensive and slower. Certainly, the role
of permanent courts of arbitration should be
appreciated. In my opinion, the predictability
of arbitration proceedings conducted by ad hoc
arbitrators is in itself highly questionable.
Moving on to the opinions I share, flexibility of
arbitration proceedings with their concurrent
predictability are absolutely a virtue. I appre-
ciate this more and more when comparing
Arbitration e-Review No. 3 (Summer) 2011 | p. 13
PART I
court proceedings with arbitration proceed-
ings. Arbitration offers more discretionary
power of arbitrators over the course of pro-
ceedings, which, if used reasonably, that is, in
consultation with the attorneys and parties,
produces very good results. The so-called
terms of reference or other similar methods of
establishing the course of a proceeding are
most valuable. However, it should be also
borne in mind that, perhaps, we will live to see
the necessary changes taking place at common
courts. Prof. Ereciński and Prof. Weitz could
certainly elaborate on this. Draft amendments
to the Code of Civil Procedure have been drawn
up, which, if enacted, would partly make up for
certain deficiencies of court proceedings, such
as the filing of huge numbers of pleadings with
courts. If those projects were successfully
completed, common courts could draw upon
the achievements of arbitration. Undoubtedly,
such achievements are valuable. In the case of
major disputes, and in particular those con-
cerning infrastructure investments, arbitration
is more efficient. I will not talk about proceed-
ings in business matters and the two weeks
available to draw up a statement of defense in
response to a statement of claim drafted by the
plaintiff during an incomparably longer period
of time. Arbitration proves its value in such a
case, obviously provided that the arbitrators
act reasonably. Unfortunately, sometimes even
arbitrators seem to disregard the need to offer
to the parties equal treatment before the law,
and if the plaintiff had a number of months to
draw up its statement of claim, the defendant
might not be offered a month or two to address
the same.
The last issue is the confidentiality of proceed-
ings. This is a certain virtue, although it occa-
sionally poses a problem to the State Treasury.
It is worth bearing in mind that all public enti-
ties are governed by special regulations which,
usually, are much more stringent than those
applicable to private entities. For instance, the
relation between the Act on Public Information
Availability and the principle of arbitration
confidentiality is a continuous problem.
Summing up and to cut a long story short, I cer-
tainly agree that arbitration is almost always
friendly and quite often predictable. This is
something I am pleased to admit. Arbitration is
a good instrument to resolve major and com-
plex disputes requiring extensive proceedings
to take evidence, although I have an impression
that if the drafted amendments to the Code of
Civil Procedure were enacted, much could be
improved at the level of common courts. Arbi-
tration is quick on some occasions but it is by
no means cheap. There is one more point I
agree with, namely, that arbitration makes a
case more likely to end in a settlement, but this
is not a question of fees or attorneys but, in the
first place, of the understanding of the econom-
ic consequences to be borne by the parties. It is
a well-known fact that, sometimes, a prompt
case resolution is better, although not ideal,
than a lengthy dispute taking years. Thank you
very much for your attention.
Jolanta Nowakowska-Zimoch: Thank you. As
far as I am concerned, one issue was passed
over which is, in my opinion, the most impor-
tant one if we talk about arbitration. What I
mean is professionalism. What is essential to
the parties to an arbitration proceeding is their
right to appoint arbitrators. Selection and ap-
pointment of arbitrators should consist (and I
do hope that this is the case in practice) in con-
sideration by the parties of whom to appoint as
an arbitrator, while taking into account the ar-
bitrator’s knowledge and, in the first place,
his/her expertise in a given field. At present,
there is such a huge variety of problems, and
not only legal ones but also those in terms of
p. 14 | Arbitration e-Review, No 3 (Summer) 2011
PART I
facts, that every reasonable attorney and party
who is to get involved in court or arbitration
proceedings have to consider which of those
institutions will guarantee a more professional
resolution of the case. I think that, given the
fact that courts are overburdened and judges
handle various civil or business law cases, such
judges can hardly be expected to have the ex-
pertise needed in a specific case. Therefore, it
is a standard practice for judges to use the as-
sistance of court experts.
In my opinion, we should strive to have a situa-
tion in which arbitrators appointed in specific
types of cases use the assistance of experts but
themselves have broad expertise in a given
field. I think that this is what guarantees a cor-
rect dispute resolution to the parties. There-
fore, I would not ponder over whether arbitra-
tion is liberal or flexible because this is a minor
issue. Arbitration should be, in the first place,
professional and this is the major virtue that
arbitration offers, or should offer, and that we
should propagate.
Another issue certainly relating to the liberal
nature of arbitration is the fact that parties may
choose to submit to arbitrators’ award issued
in equity. This institution seems to be still very
rarely used. We are all aware of its existence
but it is not actually known how it works and
how parties can make use of it. I think that,
given the enormous complexity of cases and
the complicated situation where business and
investment processes run fast and parties fre-
quently do not focus on gathering documenta-
tion, as a result of which they subsequently find
it difficult to attribute specific legal conse-
quences to specific facts, submission to arbitra-
tion in equity has a future.
I will not address the issues mentioned by the
preceding speaker, namely, the duration of ar-
bitration proceedings and whether such pro-
ceedings are expensive or inexpensive because,
I think, there is no controversy in this respect
and we all have a similar, if not identical, opi-
nion on this issue.
However, I would like to briefly address the
question why arbitration is actually hardly
popular. I think this is quite a simplified ex-
pression and, while law may be amended in a
relatively short period of time and compliance
with law enforced, mentality takes generations
to change. And it is both clients and lawyers
who are not used to the fact that arbitration
can be the first choice. The first choice is the
common court. This also originates in how
students are educated. Please note that when
we were students, and perhaps to this date,
lectures on and classes in arbitration had/have
been optional. It is already at this stage that
the focus of student education is on the fact
that there are court proceedings and some-
where in the background there is arbitration
which is merely mentioned. The same holds
true of the syllabus covered during advocate
and legal advisor training.
I think it will not be iconoclastic in any way if I
tell by experience that we devote a lot of time
to negotiating contractual provisions but when
it comes to the dispute resolution clause, which
is one of the last clauses to be drafted and
which is often drafted pretty automatically, we
sometimes do not have the time needed to dis-
cuss with the client the pros and cons of sub-
mission of disputes to common courts and
courts of arbitration. If we go for a court of
arbitration, then what court and why? I think
all of us here can beat our breast and say: we
devote too little time and thus we exercise
some educational influence over our clients
and colleagues.
The third issue is arbitrators. It is only recently
that we have been offered the opportunity of
Arbitration e-Review No. 3 (Summer) 2011 | p. 15
PART I
participating in workshops and have been able
to learn by exchanging experience. For a long
time we have been learning by our own mis-
takes and experience, by exchange of expe-
rience among persons who acted or act as arbi-
trators. In my opinion, this, too, is one of the
reasons why arbitration is not so popular.
Thank you.
Prof. Ewa Nowińska: Thank you very much
for the invitation and an opportunity to take
the floor. A majority of the guests invited are,
according to my knowledge, academics that are
concurrently practitioners and, therefore,
please let my comments be of such a dual na-
ture. In the first place, the course of arbitration
is friendly to the parties. At least this follows
from my experience and stands in opposition to
common courts which either have too little
time or are unwilling to create the right atmos-
phere. When we enter the courtroom where a
common court is holding its session, our atti-
tudes become much more rigid than when we
enter the courtroom in which a court of arbi-
tration is examining a case. The atmosphere at
the latter court is also conducive to considering
the possibility of entering into a settlement.
Prior to litigation commencement the judge
asks a routine question whether the parties do
not see any chance of settling the dispute ami-
cably, and does not actually give the parties a
chance to say anything because it is pre-
assumed that they will fight each other, em-
ploying to that end various means, not always
acceptable from the ethical point of view, in-
stead of endeavoring to find room for an ami-
cable settlement of the dispute. However, ac-
cording to my experience gained at the cour-
troom in which a court of arbitration holds its
sessions, the parties are really encouraged
there to sit at a table and talk with or without
the assistance of the arbitrators they ap-
pointed, and either way, just try to negotiate.
And this is not a purely verbal encouragement
but, as already suggested by the preceding
speakers, an encouragement to resolve a dis-
pute in such a manner that, after a settlement is
executed, the parties are able to shake hands
and, possibly, continue their cooperation on the
market. And this is rarely the case after a dis-
pute is decided by a common court.
I represent a very narrow field of law, namely,
intellectual property law, which offers excep-
tionally ample room for international dispute
resolution in Poland. In this field, we have two
fundamental pieces of EU legislation equivalent
to regulation that provide for dispute resolu-
tion by Polish courts, namely the regulations
relating to EC trademarks and designs, the lat-
ter being called in Poland “industrial designs.”
In this respect, we have one court in Warsaw to
decide such cases, which, accidentally, does
that in a very professional manner. But this is
the only court having the relevant authoriza-
tion to do that. Perhaps, in this respect, there is
room for international arbitration.
Mrs. Gessel has brought up an issue that is ab-
solutely crucial, namely, the possibility of refer-
ring to the equitable principle before courts of
arbitration, which principle is so fundamental
for the practice of the administration of justice
in general, and which could be very useful for
courts of arbitration to resolve disputes or
reinforce something a little forgotten in Poland,
that is, the sense of justice. And this could sa-
tisfy the need to go to court not for “adminis-
tration of justice” but for justice itself, which is
not always the case with justice administered
by common courts. This is not a criticism of
common courts but a sad conclusion. This con-
clusion is drawn based on the following obser-
vation: common courts are indeed overbur-
dened with cases involving various fields of
law. If you read the court calendar in cases
p. 16 | Arbitration e-Review, No 3 (Summer) 2011
PART I
heard, for instance, by the Supreme Adminis-
trative Court, you find both a case concerning a
resolution adopted by a housing cooperative
society and then a dispute involving legitimacy
of a decision issued by the Patent Office in a
case concerning protection of a pharmaceutical
invention. Really, the decision-making panel
has no chance to mentally “switch” from one
field of law to another, both of which are usual-
ly quite complex and require expertise.
Why are courts of arbitration not popular?
I think, at this point, we return to the issue
raised by both the preceding speakers, as stu-
dents are actually little taught about the possi-
bility of settling disputes in an amicable man-
ner, as well as, and this has to be borne in mind,
about the centuries-old tradition of – excuse
me the word – litigiousness. If we quarrel, we
go to court, unless “the court is what it is but
justice must be on our side,” as Pawlak’s moth-
er used to say in the movie Sami swoi (“Our
Folks”). The thought that comes first to the
mind of a Pole entering into a dispute is that it
is the court that will solve the problem for him,
and, normally, he himself does not even con-
sider a method of solving the dispute amicably.
And, once again, the problem of lawyers’ educa-
tion should be referred to: at present, there is
very little focus on persuading clients that they
had better mend fences as they live in a single
world and sometimes need to coexist despite
the dispute. Therefore, they had better leave
the courtroom reconciled, and reconciliation is
usually achieved through an amicable settle-
ment of the dispute. Even the word itself
sounds friendly, as in: I am settling the dispute
amicably, I am not quarreling, I do not unrea-
sonably insist on my arguments, although I cer-
tainly defend them. Perhaps if we, academic
teachers, focused more attention on causing
the common court not to be the first thought
that comes to mind when we enter into a dis-
pute, the subsequent generations of lawyers
would see the advantages offered by amicable
dispute resolution.
So far we have gained great experience as far as
the operations of the court of arbitration han-
dling Internet domain disputes are concerned,
which court actually examines a large number
of cases and, somehow, those who submit
themselves to it accept its awards even if they
lose the case. Certainly, this is not an uncom-
promising statement, holding true in each and
every case, but the time-efficiency of proceed-
ings before that court and the reasons to
awards that are formulated so that they are
comprehensible not only to a lawyer, show, and
sometimes even convince the losing party, that
it was the latter who failed to see to something
and this was the reason for the award issued.
And so we come to the last issue which, again,
has already been raised, that is, the statement
that arbitration allows the parties to appoint a
specialist or a person whom they trust. And
this, too, has a bearing on the courtroom at-
mosphere, as it is clear that the decision-
making panel is not composed of arbitrators
selected totally at random and bored with or
weary of the number of cases heard on a given
day. The decision-making panel gives their
attention to this specific case rather than to a
number of cases in turn. And the case is the
case of the day.
Summing up: the time has come to undertake
large-scale steps, and do so even through the
mass media, to make an attempt at presenting
our courts of arbitration as the procedural op-
tion which is, firstly, available and, secondly,
has a chance of being friendly to both parties.
Thank you very much.
Arbitration e-Review No. 3 (Summer) 2011 | p. 17
PART I
Dr. Małgorzata Podrecka: If we talk about the
origins of arbitration, it should be noted that
the idea of arbitration is based on autonomous
will that allows the parties to select the venue
and the rules governing future resolution of a
dispute, if any. When making such a choice, the
parties expect that a dispute will be resolved in
a short period of time and by persons holding
the required qualifications, which are frequent-
ly of specialist nature, and, therefore, the ex-
penses incurred in order to resolve the dispute
will be reduced.
In the event that a dispute arises, the parties
frequently forget about those expectations;
dilatory practices are employed, legitimacy of
arbitration awards is challenged. This may
render arbitration proceedings ineffective and
thus lead to negation of all the principles and
virtues discussed by Mrs. Gessel. Efficiency of
such proceedings is impossible to be guaran-
teed by the institution called a court of arbitra-
tion, if the parties forget that the arbitration
clause was a result of their autonomous deci-
sion that should be respected. There is a link
between the “party’s expectations of the court
of arbitration” to whose jurisdiction the party
submits, of the arbitrators, and of the arbitra-
tion proceeding on the one hand, and the ex-
pectations of that party concerning its reason-
able conduct in the course of the proceeding
and voluntary performance of the award to be
issued by the court of arbitration (“expecta-
tions of the party”). Without the understanding
that those expectations represent two aspects
of a single phenomenon one can hardly talk of
any efficiency of arbitration. Development of
arbitration is conditional upon proper legal
culture required of all participants in such pro-
ceedings. Without this condition being satis-
fied, we can still talk about arbitration clauses
and they will operate, but at the moment an
actual dispute arises, arbitration may fail to
bring out the virtues that lie at the heart of ar-
bitration and to live up to the original expecta-
tions formulated by the parties.
If we talk about the practical advantage of arbi-
tration, I would like to say, as an in-house law-
yer for many years, that Polish companies be-
come more and more often parties to multila-
teral contracts incorporating commercial terms
and conditions, general terms and conditions of
cooperation, and principles of liability that are
established at the level of a corporation (parent
company) for a term of one year or even sever-
al years and binding upon a greater number of
subsidiaries having registered offices in vari-
ous countries, all of which are performing the
contract. In consequence, a number of legal
systems get involved, resulting in uncertainty
as to at which point a dispute may occur, by
whom and based on what rules it will be re-
solved. This uncertainty should serve as an
argument weighing in favor of arbitration.
When executing a contract and incorporating
an arbitration clause into it, the parties choose
all the virtues discussed by the preceding
speakers, namely, the predictability of venue
and rules governing resolution of a potential
dispute rather than the unpredictability, as
well as the professionalism of persons deciding
the dispute rather than the randomness which
may turn out to be the case.
It seems to me that, if we talk about the condi-
tions for further development of arbitration, it
is advisable to introduce courses in arbitration
or, in general, in alternative methods of dispute
resolution, into the syllabi covered during ad-
vocate and legal advisor training. Some institu-
tions conducting such training offer trainees an
opportunity to participate in such classes, nev-
ertheless, it would be advisable to introduce
those problems into the obligatory syllabus
covered as part of specific inn-of-court educa-
tion programs.
p. 18 | Arbitration e-Review, No 3 (Summer) 2011
PART I
Furthermore, it should be pointed out that the
incorporation of the arbitration clause is not
the exclusive responsibility of an in-house law-
yer or a lawyer having a private legal practice.
It is the entrepreneur who assumes the risk of
choosing this method of dispute resolution. A
small or medium-sized entrepreneur is usually
aware of the fact that disputes are resolved by
common courts, the decisions of which may be
appealed against. A decision on selection of an
alternative dispute resolution method is fre-
quently something of a novelty and entails oth-
er risks, hence the entrepreneur needs to be
convinced that arbitration is efficient, indepen-
dent and thus benefits the entrepreneur.
Thank you.
Dr. Krzysztof Stefanowicz: I would like to
share with you my remarks on four issues,
namely, the two polemic comments made by
Dr. Dziurda, and the two more affirmative ones.
As regards the polemic issues, I would like to
say why I consider myself competent to ad-
dress the same in terms of the cost and time-
efficiency of arbitration proceedings. I had a
chance of becoming more familiar with a few of
the prominent cases given as examples of leng-
thy and exceptionally costly arbitration pro-
ceedings. If we examine those cases in more
detail, we will find that the decisive factor in-
creasing the cost and extending the duration of
those proceedings was the involvement of the
state. It was not the arbitration proceedings
themselves that were lengthy and it was not
the specific acts undertaken as part of the arbi-
tration proceedings that were delayed, but the
necessity of, and sometimes, unfortunately, the
provisions of law resulting in, state courts in-
terfering in all those cases, that caused the pro-
ceedings to be lengthy. In the “Vivendi” case
referred to as an example, the majority of the
lengthy procedures and most of the time taken
up by the proceeding was the consequence of
the inefficiency of Polish courts not only in
terms of time-efficiency but also in terms of
their inability to decide on simple, it could
seem, registration issues. Thus, in connection
with that proceeding, it turned out that mun-
dane, it would seem, registration problems
continued to have unresolved elements, but
this was an issue outside arbitration. As was
the case with the proceeding in which both of
us were involved, as Dr. Dziurda probably re-
members, where it was the inefficiency of
common courts, fortunately not Polish but for-
eign ones, not to mention the state authorities,
that made the arbitration proceeding lengthy.
If we consider the beginning of each arbitration
proceeding, that is, the question when we can
expect the first hearing to be scheduled, being
the fundamental issue in any discussions with
the client, every permanent court of arbitra-
tion, not to mention ad hoc courts, offers com-
plete predictability, and we do not talk about
months or even years of waiting for the first
scheduled hearing, as is the case with state
courts. And the sequence of the events that
follow certainly speaks in favor of the “reason-
able,” from the point of view of parties’ expec-
tations, duration of arbitration proceedings.
As regards costs, let us refer once again to the
table presenting the mode of proceeding and a
comparison of the arbitration court at Lewiatan
with state courts. The majority of expenses
result from the involvement of the state; we all
know what, unfortunately, became a measure
sometimes abused by parties’ attorneys, that is,
the petition to vacate award or the challenge to
appointment of arbitrators which is a measure
imported from common courts and which sub-
stantially increases the cost of arbitration pro-
ceedings. Not to mention the fact that, al-
though we can argue, though this is a separate
issue, to what extent this interference is rea-
sonable or unreasonable, all control or supervi-
Arbitration e-Review No. 3 (Summer) 2011 | p. 19
PART I
sion procedures exercised by state courts over
courts of arbitration are a material cost-
generating factor. If we talk about the need to
request court assistance in undertaking specific
procedures either in Poland or abroad, it is
such procedures that generate a major portion
of the expenses.
Certainly, it is undoubtedly very easy to raise a
mediagenic charge, pointing out the fact that
the remuneration of state court judges is in-
comparably lower than that of arbitrators.
However, at this point, we probably encounter
the second issue which I would like to discuss
in a more affirmative manner and which has
already been raised by the preceding speakers,
that is, an equally fundamental benefit, an ad-
vantage of arbitration over state courts – and I
hope I will be correctly understood – an advan-
tage, in terms of quality, that arbitrators have
over common court judges. This advantage re-
sults from numerous reasons, or various ele-
ments combine to form it.
Certainly, the first element is the scale of busi-
ness transaction complexity. It is only natural
that we find it easier, if we have a very broad
spectrum of arbitrators to choose from, to se-
lect a person being a competent expert to re-
solve a specific dispute from among arbitrators
than from among state court judges. Thus, this
is an objective element.
The subjective element is associated with the
career path in legal professions. The situation
in this respect has been actually discussed and
contested for many years now but remains an
unresolved issue. If we compare, for instance,
the average age of judges employed by regional
courts, which are already intended to handle
more complex cases, and thus try to determine
the scope of their life experience, not to men-
tion their experience in the field of business,
with that of prospective arbitrators, the result
of such comparison will be unambiguous.
Judges will prove to be less qualified and will
have less ability to competently resolve a dis-
pute. That is, in terms of the quality of the hu-
man resources intended to handle disputes,
arbitration offers an opportunity of having a
dispute resolved and not just decided or, to use
boxing terminology, decided by the referee
raising the winner’s hand. Due to a number of
reasons we often learn about from research
findings, a state court limits itself to deciding,
and not solving, a case. But arbitration, thanks
to the quality of the human resources available,
provides an opportunity of having a dispute
actually resolved and offers the parties to the
dispute a chance of continuing their business
activities on the market. As a rule, arbitration
makes it more likely for the parties that they
will not get destroyed as a result of the dispute
between them but will stand a chance of con-
tinuing their business activity. In my opinion,
this is the major advantage that will continue to
be in place for many years. Undoubtedly, it
should be eliminated in the sense of improving
the quality of state court human resources, for
which probably still there is room, however, no
change in the proportions is, in principle, poss-
ible due to obvious reasons. To bring about a
situation comparable to that in the United
States, where the office of judge is the capstone
of a legal career, is a long way to go. For now,
arbitration and arbitrators appointed to re-
solve disputes undoubtedly offer a greater
chance of competent dispute resolution than
state courts.
The last issue referring to the title of this part
of our panel discussion is the ideological ori-
gins. And it is this problem that relates to the
polemic issues. This is my very subjective opi-
nion. It seems to me that arbitration should be
viewed also from the perspective of the over-
simplified and probably many times criticized
p. 20 | Arbitration e-Review, No 3 (Summer) 2011
PART I
opinion that the less the state is involved, the
better for the economy. If we talk about eco-
nomic disputes and allow for resolution of such
disputes without involvement of the state but
with a substantial and active involvement of
the parties, then, I think, the ideological origins
and the virtues found in this aspect of arbitra-
tion undoubtedly deserve more attention. At
this point, I admit that, as far as amendments, if
any, to the Code of Civil Procedure or rules of
permanent courts of arbitration are concerned,
they should be conducive to such develop-
ments. I would be very wary of regulations
that would permit a broader scope of interfe-
rence by or a broader scope of powers to su-
pervise arbitration vested in state authorities
or courts, so that this material virtue of arbitra-
tion could be preserved. And, as practice
shows, restriction of economic freedom or at-
tempts to influence the free market, even if fa-
vorable, usually bring about adverse conse-
quences. Therefore, I think that if we take this
axiological component of arbitration into con-
sideration each time an amendment to the law
is intended, all the virtues discussed before can
be retained.
Prof. Jerzy Rajski: Thank you very much. We
could hold this interesting discussion all day
long but, unfortunately, the event organizers
gave us only half an hour, so I invite several
speakers, giving five minutes to each, and
would appreciate it if you could give me also
five minutes for a brief summary, though I
would not despair if those five minutes are not
left for me in the discussion.
Ireneusz Matusiak: I would like to address
the issues raised by Dr. Gessel, that is, the rea-
sons why arbitration is indispensable. Arbitra-
tion is by no means homogenous and, perhaps,
this is an asset. Why is it not homogenous?
There are here, in this room, a number of per-
sons representing small courts of arbitration,
that is, small in terms of the number and scope
of the cases they handle. I dare to say the
statements alleging that arbitration is unpopu-
lar are controversial. In a small court, and I am
talking here about the arbitration court han-
dling disputes over Internet domains, arbitra-
tion is popular. Why?
Firstly, I would provide reasons to complete
those enumerated by Dr. Gessel. Arbitration
addresses a dispute on its merits. Parties are
interested in resolution of Internet domain dis-
putes because they know that other courts -
that is, I mean common courts here – do not
have specialists in this field. Hence, when re-
ferring a dispute for resolution to a court spe-
cializing in this field, they know that the dis-
pute will be best examined. Thus, it seems to
me that such arbitration addresses the sub-
stance of a dispute, which is the first reason
why entrepreneurs choose it.
I would also point out reasons 7 and 8. In the
first place, if we talk about time-efficiency, I
would like to mention that arbitration makes
use of new technologies. In the court referred
to above, proceedings are conducted with the
use of e-mail, and a hearing is not always held.
The parties are medium-sized entrepreneurs
without substantial financial resources to con-
duct long proceedings and participate in hear-
ings. A solution of this type is impossible to be
implemented in the case of any other dispute;
in this case, however, it is favorable to entre-
preneurs, arouses more interest and results in
the dispute being resolved within a short pe-
riod of time.
And, finally, the last issue which is also of signi-
ficance: arbitration shapes legal awareness of
the society. At this point, I mean the informa-
tion society. Selected awards issued by the ar-
bitration court handling Internet domain dis-
putes are made available on websites. Thanks
Arbitration e-Review No. 3 (Summer) 2011 | p. 21
PART I
to that, entrepreneurs intending to enter into a
dispute learn beforehand what the rules are,
whether they can protect their rights and what
the consequences of an issued award are.
Those three elements contribute to the popu-
larity of arbitration. The fact that there are
small courts of arbitration is a good feature of
the entire arbitration system, though while
talking about arbitration, we usually mean cas-
es of great importance. I would like to emphas-
ize that these are the elements that prove their
usefulness at the micro level. Thank you.
Dr. Marcin Dziurda: I would not like in the
least to argue with Mr. Stefanowicz, as we do
not have enough time for that. Besides, I am
very glad that Mr. Stefanowicz made a com-
ment on what I had said and he would probably
be surprised if he knew that our opinions on
many issues were even alike.
However, I would like to repeat the reservation
I made at the beginning: I was not talking at all
about investment arbitration, as this was quite
a separate issue. But, to give an example, if we
have a simple dispute over a relatively small
amount of money and the most prominent arbi-
trators in the world are appointed to resolve it,
we should not be surprised that the first date of
hearing they are able to schedule falls in a year
time. Or if we have an arbitration proceeding
conducted pursuant to the ICC rules, held in
Paris, in English, and the case is handled by
Polish attorneys and Polish arbitrators, then I
am pleased to hear that some entrepreneurs
are reasonable enough to suggest, for instance,
that the venue be changed to Poland and the
language to Polish. And, at this point, I agree
with Mrs. Nowakowska that when it comes to
negotiating the arbitration clause, it is often the
case that no time is left for consideration, and
the result is frequently absurd and inconsistent
with the idea of time-efficient arbitration.
Prof. Aleksander Chłopecki: I would like to
point out yet another reason why arbitration is
not so popular, a reason affecting the relations
between a financial institution and its client,
and being a notorious one. The majority of fi-
nancial institutions make the following as-
sumption: we have a legal department, we have
lawyers and our adverse party is our client
whose financial resources, time availability, etc.
are limited. We will be better off just dragging
him through common courts and all their in-
stances with all the formal restrictions this en-
tails. Perhaps we will scare him off before he
puts up resistance. That would be much more
convenient for us than to consent to arbitra-
tion. And, to make it clear, this is not part of my
idea of the real life but part of my analysis of
the actual situation.
As regards the cost of arbitration, to make the
matter not so nice, we have to address the fol-
lowing issues: if we talk about ideological prin-
ciples, then should arbitration be a business
and if so, to what extent? Please note that a
major portion of arbitration procedures are
business activities. In the case of the court I
have the pleasure to represent, special regula-
tions are in place, providing for asymmetry of
expenses. Expenses borne by the institution
correspond more or less to those borne in
common court procedures. However, in rela-
tion to the institution’s clients, these expenses
are totally disproportional, as their amount is
limited to several hundred Polish zlotys.
Therefore, we should perhaps consider a cer-
tain modification to and stratification of the
costs of arbitration, depending on the entity, its
financial condition, etc. This is something that
is missing from many arbitration institutions.
And two more minor issues: as regards the first
one, I will talk about myself not to offend any-
one – while acting as an arbitrator, I sometimes
feel the need for some kind of introspection.
p. 22 | Arbitration e-Review, No 3 (Summer) 2011
PART I
This need is manifested, more or less, in the
following question: I shall decide as my know-
ledge best allows me, according to the dictates
of my conscience, etc., and the introspection is
intended to determine whether and to what
extent I feel any obligation towards the party
who appointed me as an arbitrator. I am mak-
ing money acting in this capacity. This is a psy-
chological burden of which an arbitrator
should be constantly aware, even if he/she is
totally independent.
Dr. Zbigniew Banaszczyk: I would like to
note that I will present my opinions from three
points of view simultaneously because I am a
theorist, a practitioner, and an arbitrator at the
same time. Therefore, I view the matter from
three different angles. I would like to address
some of the preceding statements. To begin
with, Mrs. Gessel pointed out five properties of
arbitration. Subsequently, it turned out that
there were more such properties. Mr. Dziurda
perhaps correctly started with a statement that
arbitration was not cheap. Let us say: from the
point of view of the office represented by Mr.
Dziurda, every court which is not a common
court is “expensive.” This is beyond doubt, ac-
tually. And, indeed, I agree that arbitration is
not cheap but it is not cheap because the par-
ties so decided. In exchange for the high cost,
the expenses that need to be borne, arbitration
offers what was called here dispute considera-
tion on its merits or professionalism. And this
is not professionalism juxtaposed with a lack of
professionalism found with common courts.
That is not the point. The professionalism is
actually the one chosen by the parties. They
incorporated into the contract they executed an
arbitration clause providing for dispute resolu-
tion by an ad hoc or permanent court of arbi-
tration, and specified that they would be per-
mitted to appoint persons being the best arbi-
trators from their respective points of view.
And those points of view can differ substantial-
ly. In the first place, the appointed arbitrators
should be specialists in a given field and not
necessarily in any field of law. Even a perma-
nent court of arbitration allows for appoint-
ment of a person from outside a list of arbitra-
tors. Such a person will not even be a lawyer
but will have the capacity to correctly examine
a dispute. This is a virtue that should be sought
by entrepreneurs but of which they are fre-
quently not aware. And here there is room for
lawyers to bring it to their attention that there
are such options. And, perhaps, this is the price
that has to be paid in order not to have an
award issued by a randomly selected judge of a
common court, by saying which I do not mean
to offend any such person, and what I mean by
“selected at random” is that such a judge is ex-
amining a case just because he/she was blindly
appointed to do so. This is an ineptness of the
common court, manifested in the fact that a
judge is sometimes forced to decide a case
which is somehow beyond his/her skills. Al-
though, thanks to their qualifications, judges
can quickly acquire such skills when a need
arises, and I saw many times common court
judges remarkably well prepared to handle
cases requiring expertise, this is by no means a
rule.
Another issue that I would like to discuss is the
fact that a common court usually does not offer
time for lawyers to have a debate. A court of
arbitration offers such an opportunity. Some-
times I am surprised that attorneys of the par-
ties do not attempt to discuss before the court
the disputed issue purely in terms of its sub-
stance, as part of a direct debate held in a very
friendly atmosphere.
Tomasz Wardyński: I think too much time is
devoted here to discussing the technicalities of
arbitration. At its onset, a dispute is a psycho-
logical phenomenon. Arbitration is, by its very
Arbitration e-Review No. 3 (Summer) 2011 | p. 23
PART I
nature, a solution intended not for litigious
people but for people actually seeking a rea-
sonable solution to a problem they encoun-
tered while carrying out business activity. Na-
turally, we assume that a businessman makes
reasonable decisions.
I do not know whether arbitration is expensive.
It can be expensive but if the parties manage to
quickly reach an agreement and recognize the
arbitration award as correct, it can also be in-
expensive.
Unfortunately, a lot depends on the legal cul-
ture, as well as on compliance with the prin-
ciples of deontological ethics that form a basis
for attorney’s acts. Arbitration becomes ex-
pensive when abused in order to act in a liti-
gious manner. And it is very often the case that
such a litigious attitude is shared by parties’
attorneys. What is more, it seems to me that
attorneys of the parties frequently consider the
arbitrators to see only one half of the facts.
Nevertheless, I think that if an arbitration pro-
ceeding is correctly handled both by the attor-
neys of the parties and the arbitrators, there is
a real chance of making arbitration inexpen-
sive. However, one should bear in mind that
the expenses we are talking about here, the
noticeable ones, represent only a small portion
of the overall dispute cost. The true cost of a
dispute is the mental energy and the time de-
voted by the parties to resolve the same and
handle it correctly, so that their rights could be
effectively protected.
The fundamental question to be asked is as
follows: is it easier to abuse litigation proce-
dures before common courts or before courts
of arbitration? In my opinion, a relatively rea-
sonable handling of a dispute by arbitrators
can prevent abuse of arbitration procedures by
people who think that, as Prof. Nowińska said,
“the court is what it is but justice must be on
our side.”
I also think that the psychological phenomenon
in the form of a dispute makes us realize that
the decision we take as attorneys, participants
in a dispute, whether being natural persons
carrying out business activity or a company, in
the end needs to be a decision which is, in the
first place, reasonable. In the end, everything
boils down to simple arithmetic and the parties
need only to be shown how to reduce the frac-
tions which initially posed such a complex
problem.
Prof. Jerzy Rajski: Thank you. Instead of
summing up the discussion, I will only say a
few words because many conclusions should
be drawn from this interesting discussion but,
unfortunately, we do not have time enough to
do so. Thus, first of all, I would like to point out
a feature not enumerated so far among those
that can represent fundamental properties of
arbitration, that is, I would like to emphasize
the perfect harmony between the contractual
nature of a dispute and the contractual method
of solving the same in arbitration proceedings.
That symmetry contributes to the creation of
the atmosphere, also the psychological one,
mentioned by Mr. Wardyński.
Substantive law allows the parties to shape
their contracts as they wish, to the extent per-
mitted under law. It is an indisputable advan-
tage that the legal system also gives the parties
the freedom to answer the fundamental ques-
tion as to what procedures should be employed
to resolve disputes that may arise as a result of
the contractual relation they established. The
contractual nature of dispute resolution under
arbitration proceedings is of considerable im-
portance here. It is of importance, inter alia,
due to the fact that it is the parties who make a
p. 24 | Arbitration e-Review, No 3 (Summer) 2011
PART I
decision as to who and how will resolve a dis-
pute.
Thus, the parties remain deeply convinced that
the course of the proceeding depends on the
choice they make, as it is a generally recognized
principle that the quality of arbitration is de-
pendent upon the arbitrators. And by whom
the arbitrators are appointed? By the parties.
One could quote Molière here: “vous avez vou-
lus.....” – you have arbitration of the quality you
wished for yourselves. And this is also a virtue
of arbitration, in addition to those referred to
by the preceding speakers. Undoubtedly, pro-
fessionalism is a praiseworthy property among
the other virtues. In today’s very complex
business world and the corresponding complex
juridical structures, a lawyer is required to
have ever broader knowledge, which some-
times entails the necessity to acquire expertise
that common courts are unable to offer, since,
as their name itself indicates, they have to en-
sure administration of justice of a generally
acceptable quality, whereas arbitration allows
for higher requirements to be set in this re-
spect and permits their satisfaction through
selecting and appointing arbitrators having the
required expertise.
And, finally, as far as the other properties re-
ferred to are concerned, that is, time-efficiency
and cost-effectiveness, the latter is not always
the case, but this is somewhat similar to the
idea of a cheap state. If we want to have a
proper arbitration proceeding of a superior
quality, comprising the relevant components
that make it possible to examine a case tho-
roughly and devote to it the required effort
within a compacted period of time, that is,
without interruptions resulting from reasons
other than those related to the case, which is
time-efficient and which addresses the sub-
stance of the case and ends in an effective reso-
lution of the same, such proceeding does not
necessarily have to be inexpensive.
The question of axiology, the virtues on which
the concept of arbitration is built, was also
raised but, as you noticed, those virtues were
instantly reduced to the financial aspect of ar-
bitration and much attention was paid to the
cost of arbitration proceedings. But, returning
to the virtues displayed by arbitration, the idea
that was discussed, namely, the admissibility,
the option of dispute resolution based on the
equitable principle, is worth pointing out. The
fact that, unlike the state court, the court of
arbitration is not strictly bound to abide by the
letter of the law but has some freedom of deci-
sion when construing provisions of law and
applying the same, of course within the limits
permissible under the public order clause, is a
great virtue. If only for this reason, it is easier
to seek justice at a court of arbitration. Thank
you.
Arbitration and the need for legislative changes Has the time come for a change in the model of the
application for setting aside an arbitral award?
Panel Moderator: Prof. UW Dr hab. Karol Weitz
Introduction by: Bartosz Krużewski Panel Participants: Prof. Tadeusz Ereciński, Prof. Aleksander Chłopecki, Ireneusz Matusiak,
Dr Beata Gessel-Kalinowska vel Kalisz, Prof. Jerzy Rajski, Dr Rafał Morek, Barbara Grabowska, Paweł Pietkiewicz
Arbitration e-Review No. 3 (Summer) 2011 | p. 25
PART II
Prof. Karol Weitz: Welcome ladies and gen-
tlemen. Theme II of the panel is the issue of
an evaluation of whether normative changes
are necessary. The focus for the discussion
in this respect is the issue of an application
for setting aside an award of a court of arbi-
tration and its normative model. As the topic
is very interesting and may lead to a very
lively discussion, I will stop speaking now
and give the floor to counsellor Krużewski,
who will lead us into the discussion.
Counsellor Bartosz Krużewski: Thank you
very much, Professor. Ladies and gentlemen,
a word by way of introduction: the topic of
the presentation is perhaps somewhat ambi-
tious. I will not be speaking about the appli-
cation model as such, first of all because
such model – in the form it has taken today –
is good and does not require change. On the
other hand, I will be speaking only about an
aspect which is undoubtedly difficult to clas-
sify, even as an application model, namely
the issue of instances in proceedings. I sub-
mit my thesis straightaway: I believe that the
time for change has arrived.
It seems to me that at this stage of the de-
bate we can make a certain assumption that
it would be good if arbitration were more
attractive. If I may sum up this morning’s
statements in three sentences. Firstly, it
would be good if it were more attractive as it
has advantages for the parties to the pro-
ceedings, in any event for some of the parties
to the proceedings.
Secondly, it would be good because it would
also relieve commercial courts as an alterna-
tive means of resolving disputes. Dr. Gessel
gave the figures. For the moment these are
very modest figures. On the other hand, we
know just how burdened the commercial
courts are. It would be good if more cases
went to arbitration.
Thirdly – and Dr. Szpunar in turn spoke
about this – there exists a certain link be-
tween well functioning arbitration and the
general well-being of the State and society.
Studies have appeared which point, for ex-
ample, to the link between well functioning
arbitration centres and an increase in GDP
(Gross Domestic Product) of States. Of
course, let us be realistic: we will not in-
crease Polish GDP by 1% or 2% just because
a good international arbitration system is in
operation. Nonetheless, whilst retaining a
p. 26 | Arbitration e-Review, No 3 (Summer) 2011
PART II
certain sense of proportion, this connection
does exist on some level. I think that the
third panel will be also devoted to this. I
would merely point out to you that, for ex-
ample, not long ago in the ICC a battle took
place behind the scenes as it were about
whether the ICC will move out of Paris or
not. Its chairman, John Beechey, played it
like a poker player: he said that it would
move out of Paris if it does not receive a bet-
ter head office and a couple of other things.
It is an open secret that it received very good
offers from Vienna and a city in Switzerland.
Ultimately, Paris made an effort for the ICC
to stay in Paris, which is empirical proof that
there is a connection between well-being,
prestige for the State and society, and a well
prospering arbitration centre.
Of course, one can make arbitral proceed-
ings more attractive by looking at the two
sides of those proceedings: from start to fin-
ish arbitration is a hybrid proceeding: on the
one hand, we have proceedings before a
court of arbitration, on the other hand - pro-
ceedings before a common court. To be per-
fectly clear, I am one of those who believe
that there is a lot to be done as regards the
first side (the side of proceedings before a
court of arbitration). Despite the fact that I
am a great supporter and user of the court of
arbitration, I believe there is much to do and
this morning’s discussion was very lively.
However, I have been asked to take a look at
the other side of the coin, that is proceedings
before a common court. What has an influ-
ence on attractiveness in proceedings? Of
course, it seems that first of all the quality of
the court decisions, secondly the waiting
time for a decision to be handed down,
thirdly - costs. It is also obvious that a cer-
tain tension appears between quality on the
one hand, and speed on the other. Speed can
also be understood to be a factor which in-
fluences the attractiveness of proceedings.
Quality is guaranteed by the State by way of
judicial supervision over the awards of
courts of arbitration, and it is very good that
it is like that. Traditionally the State has a
certain mistrust with regard to the private
manner of resolving disputes which arbitra-
tion is, hence other applications and other
means of challenging awards, though of
course their grounds are very limited.
Bearing these tensions in mind, I would like
to put forward the thesis that the exercise by
the State of judicial supervision over the
awards of courts of arbitration should be
shortened as regards the various instances.
To use a popular, though not very elegant
word, they should be ‘compressed’ so as to
increase the attractiveness of arbitration,
but without detriment to the quality of that
supervision.
To justify this thesis I would like to very
briefly look at two issues. First of all, I would
like to go through the models of instances
which appear in other European jurisdic-
tions. Secondly, I would like to very briefly
summarize a debate which has been going
on for some time now about whether in Po-
land it is possible to shorten – for constitu-
tional reasons or other reasons – the num-
ber of instances of arbitral proceedings. Of
course, as you know, in Europe and else-
where there are various means of challeng-
ing arbitral awards; these are not only appli-
cations but also various types of actions for a
declaration of the invalidity of an award, or
the existence and non-existence of an award.
For the purposes of brevity, I will be using
the word ‘application’. The common feature
of the majority of these European proceed-
Arbitration e-Review No. 3 (Summer) 2011 | p. 27
PART II
ings is that the court rather does not exam-
ine an award on the merits, but can merely
set it aside for the reasons listed it the statu-
tory act.
Let us begin with those States where the
proceedings are the shortest. At the moment
there are two such States: Bulgaria, and
above all Switzerland. If we are speaking
about the ‘giants’ of arbitral proceedings,
then Switzerland is undoubtedly one of
them. The Swiss model is that of single-
instance proceedings, with a character simi-
lar rather to an appeal, challenge measure or
indeed an extraordinary challenge measure.
Switzerland is very interesting because it
makes this single-instance judicial supervi-
sion its great virtue and boasts about it, uses
it to advertise itself, uses it to attract arbitral
disputes to Switzerland. According to statis-
tics for 2007 of the ASA (Swiss Arbitration
Association), the average duration of pro-
ceedings from the moment of filing an appli-
cation to its being examined by the Federal
Supreme Court of Switzerland is 5 months.
We also have one jurisdiction where pro-
ceedings are also single-instance but con-
fined to the court of second instance; we also
have one jurisdiction (Hungary) where pro-
ceedings are confined to two instances with-
out an extraordinary cassation measure.
Country
Proceedings
before court
of first in-
stance
Proceedings before court of
second instance Proceedings before the Supreme Court
France - Court of Appeal (Cour d'Appel) application to Court of Cassation (Cour de
Cassation)
Greece - Court of Appeal application to Supreme Court
Lithuania - Court of Appeal application to Supreme Court
Germany - Higher National Court
(Oberlandesgericht)
application (Rechtsbeschwerde) to the Fed-
eral Court (Bundesgerichtshof)
Romania - A court of higher instance than
the court which would have had
jurisdiction for resolving the
dispute had the parties not con-
cluded an agreement for adjudi-
cation by a court of arbitration
application to Supreme Court
Sweden - Court of Appeal application to Supreme Court (admissible
upon the consent of the Court of Appeal only
in matters of a precedential nature)
Italy - Court of Appeal Court of Cassation
p. 28 | Arbitration e-Review, No 3 (Summer) 2011
PART II
We have a further large group of States which
are particularly interesting, where judicial su-
pervision is confined to proceedings before the
court of second instance, i.e. the measure - or
application (however we call it) - is sent di-
rectly to the court of second instance, the
equivalent of our court of appeal, with an ex-
traordinary measure of appeal to the Supreme
Court.
It is worth noting that these States include
France, Germany and Sweden - giants of arbi-
tral proceedings. In Sweden in particular you
are undoubtedly familiar with the Svea court of
appeal, which very often appears in publica-
tions. This may create the impression that in
Sweden there is one court of appeal
designated for receiving all applications. But
that is not the case. As I understand it, an appli-
cation is sent to the court of appeal which has
geographical jurisdiction but in view of the fact
that a clear majority of arbitration cases are
located in Stockholm, it is precisely the court of
appeal that examines those applications.
We have another group of States which have
the same model as in Poland, as adopted in our
system, that is full two-instance proceedings
with an extraordinary measure of appeal to the
Supreme Court. One should take note here of
England which does not entirely fit this model.
As you know, already at the level of appeal one
could engage in a discussion as to whether this
is an ordinary or extraordinary measure of ap-
peal in view of the fact that there is a need for a
Country Proceedings before court of
first instance
Proceedings before court of
second instance
Proceedings before the Supreme
Court
England High Court appeal to the Court of Appeal
admissible only upon the con-
sent of the court (leave for ap-
peal)
appeal to the Supreme Court admissible
only upon the consent of the court
(leave for appeal)
Austria National Court (Landesgericht) Higher National Court (Oberlan-
desgericht)
Supreme Court (Oberster Gerichtshof)
Belgium court of first instance which
would have had jurisdiction
for resolving the dispute had
the parties not concluded an
agreement for adjudication by
a court of arbitration (Recht-
bank van eerste aanleg)
Court of Appeal (Hof van
beroep)
Supreme Court (Hof van Cassatie)
Czech
Republic
court of first instance which
would have had jurisdiction
for resolving the dispute had
the parties not concluded an
agreement for adjudication by
a court of arbitration
relevant court of second in-
stance
Supreme Court
Finland court of first instance with jurisdiction as regards the place of issue of the award
relevant court of second in-stance
Supreme Court
Holland court of first instance with jurisdiction as regards the seat
of arbitration
relevant court of second in-stance
Supreme Court
Arbitration e-Review No. 3 (Summer) 2011 | p. 29
PART II
leave for appeal and certain elements which
must be shown for extraordinary measures. Of
the States which are also giants in arbitral pro-
ceedings, Belgium and Holland have such a
model.
That would be all as regards the various in-
stances. A few words now about other ele-
ments which also have an impact on the dura-
tion of proceedings, and thus on the attractive-
ness of proceedings. Firstly, in certain jurisdic-
tions parties may exclude an application. This
is the case in Switzerland. That is also how it is
in Belgium and Sweden, with the difference
that there is the condition that the parties be
not ‘local’, i.e. they do not have their seats re-
spectively in Belgium or Sweden.
A further element which has an impact on the
duration of proceedings is the deadline for fil-
ing an application. Here a clear majority (we
are by no means an exception here) of jurisdic-
tions provide for a deadline of 3 months, which
seems to be quite a long deadline, but it is pro-
vided by the model law. England provides for
28 days, Switzerland 38 days, in France in cer-
tain cases it is 30 days, and in Spain – 2 months.
Finally, the last element which has an impact
on the length of proceedings are the links be-
tween the application and proceedings aimed
at declaring enforceability. I would merely
point out here that in certain States an award
of a court of arbitration, at the moment it is
handed down, has a force equal to decisions of
common courts, i.e. there is no need to go
through the proceedings for a declaration of
recognition of enforceability. This is the case,
for example, in Austria. If we compare it to the
Polish regulation, then a quite obvious conclu-
sion emerges that in the Polish system we have
a full range of ‘judicial’ safeguards. We also
have all the elements which have an impact on
the length of proceedings, on prolonging those
proceedings: two-instance proceedings, cass-
ation, three months to file an application, the
institution itself of the application cannot be
excluded by contract, and then there are the
two-instance proceedings for a declaration of
enforceability or on recognition.
That would be as much by way of legal com-
parison. Now, some brief remarks about the
arguments for and against limiting the variety
of instances in Poland. As you know, a debate
has been underway for some time now as to
whether such a ‘compressing’ is possible. The
debate revolves around constitutional prob-
lems, in particular art. 176 of the Constitution,
which states that court proceedings are at least
two-instance proceedings. Sometimes this de-
bate also involves art. 78 of the Constitution,
which in turn states that each of the parties has
the right to challenge judgments and decisions
handed down in first instance. It seems that
one should confine oneself to art. 176; art. 78
concerns more the issue of appealing capacity
than the issue of instances.
The level on which these arguments clash is the
dispute about the character of applications. Of
course, here in this room there are outstanding
representatives of the doctrine. I am not a con-
stitutionalist and I am not going to extensively
summarize all the arguments – rather I will say
just for your information and to prepare the
debate (and I think this is the dominant voice
of the doctrine) that an application has ele-
ments of both an extraordinary measure of ap-
peal and elements of an action aimed at shap-
ing changes in the legal state caused by a arbi-
tral award, i.e. a legal action with a litigation
character. In that situation, an application is
not a measure of appeal.
Why is this important? As I understand it, it is
important because with this approach it is said
(and this is an argument against compressing
p. 30 | Arbitration e-Review, No 3 (Summer) 2011
PART II
proceedings) that instance-structured proceed-
ings being with an action or a type of action
which the application is, in view of which the
two-instance structure must be retained: court
of first instance and court of second instance.
On the other hand, there are voices in the doc-
trine which say that this is not so. An applica-
tion is, all the same, a measure of appeal, and
not an action. The arguments which are cited
are more or less as follows: the purpose of this
measure is to exercise supervision over an act
of a litigation nature, which the legislator - not
without reason -defines as an ‘award’. The pur-
pose of this proceeding is to set aside an award.
It is not a matter in this proceeding to directly
decide on the legal situation – an award in itself
without a declaration of its enforceability does
not shape the legal situation of the parties, but
the court is merely to decide about the fate of
the appealed award. Thus, the subject of those
proceedings is not a resolution of the arbitra-
tors as to the merits but merely a proceeding
on the award. An additional argument cited by
the supporters of this concept is the argument
derived from art. 1209 of the Code of Civil Pro-
cedure, namely the institution of remission,
that is the possibility for a common court to
remand an award of a court of arbitration for
renewed consideration. It is said that it is in
essence a mechanism adapted to arbitration,
typical for measures of appeal, remanding a
case for renewed consideration.
Apart from constitutional arguments, also cited
are arguments of a practical nature. It is said
that at this stage of development the quality of
arbitral decisions in Poland is mixed. There are
institutions which are very renowned, arbitral
institutions, but many permanent courts of ar-
bitration still function which are of doubtful
reputation. But also awards are issued ad hoc
which require special judicial supervision.
Finally there is the argument against concen-
trating the application in the first instance in
one court of appeal on the assumption that a
shortening of instances would take place. It is
said that in that case a limitation of the rights
to court could occur if it were territorially one
court and the parties would have to travel from
different parts of Poland.
To conclude: in my opinion, in order for arbi-
tration to represent a genuine alternative to
court proceedings, regardless of the work on
that first part about which I spoke (i.e. arbitral
proceedings themselves), one should remove at
least one instance in judicial proceedings. I am
in favour of the option that an application be
sent directly to the court of appeal and that
cassation be retained. I am not a constitutional-
ist but as a practitioner I have doubts as to
whether there really exist constitutional obsta-
cles. In support of that thesis I would cite the
decisions of the Constitutional Tribunal, con-
troversial and not in these cases, concerning
disciplinary matters concerning cases involving
unfair competition where the Constitutional
Tribunal gave certain guidelines nonetheless.
First of all, it stated that the constitutional
principle of two instances is not directly an
element of a guarantee of the right to court.
Secondly, it pointed out that the obligation of
the legislator to respect the principle of in-
stances relates to those cases which from start
to finish are examined by courts. This is a
phrase which we could undoubtedly debate
about all day. Nonetheless, the Tribunal
pointed out that the principle of two instances
does not concern cases which are only sub-
jected to final supervision on the part of courts,
where they belong to the competence of other
bodies. To be honest, it should be added that
the Constitutional Tribunal made – it would
seem – a proviso, namely insofar as proceed-
ings before a court do not have the features of
Arbitration e-Review No. 3 (Summer) 2011 | p. 31
PART II
one-instance proceedings. In my opinion, pro-
ceedings from an application decidedly do not
have such features.
Thus, in reply to the question put by the organ-
izers as to whether the time has arrived for a
change in the application model, I say: yes, the
time has arrived, though in a very limited
scope. In my opinion, in the remaining scope
the application works well, which of course
does not close the debate regarding other fea-
tures of that model. But in the scope of the va-
riety of instances of proceedings, there is time
for a change. Thank you very much.
Prof. Karol Weitz: Thank you very much
Counsellor for a very detailed and interesting
presentation of certain aspects concerning an
application for setting aside an award of a court
of arbitration in the context of a legal compari-
son. Thank you also for the clearly presented
thesis. I think that this will be the starting point
for the discussion. Of course, I now invite you
to take part in the discussion. I will now give
the floor to Prof. Tadeusz Ereciński. Please go
ahead.
Prof. Tadeusz Ereciński: The previous
speaker’s talk was excellent – in a short talk
you presented very objectively the problems
surrounding the application. Indeed it took
away my arguments as I expected that you
would be more committed to presenting evi-
dence to the effect that this application should
be liquidated altogether. Such voices could be
heard at the time when provisions were being
introduced which amended the arbitration
regulation in 2005 – why do we need an appli-
cation for setting aside at all - arbitration
should itself function without supervision from
the judicial decisions of State courts. Thus, I am
pleased that I can decidedly subscribe to such
approach, i.e. that arbitration should not be
competition for State courts. It has its place,
which I see above all in those specialist areas
about which there was mention on the one
hand, while, on the other hand, in large interna-
tional disputes where above all one avoids
State courts in view of the courts’ natural ten-
dency to prefer the party coming from the
same State as the court. I would like, however,
to return to what Prof. Rajski said, to a certain
ideological character to which one should re-
turn in arbitration.
This feature of an ideological character to
which I would like to refer is that when decid-
ing on arbitration, the parties to a large extent
should be aware that they consent to a volun-
tary enforcement of the award. This is the first,
original feature of arbitration. Arbitration has
its virtues: a choice of arbitrator in whom we
have confidence, thus we should consent to
voluntarily enforce the award. If one does not
do that and one begins to avail of all the possi-
bilities offered by legal measures related to
supervision by the State of arbitral awards,
then pathological situations begin to emerge.
And why must there be supervision of a State
court? This issue has been touched on deli-
cately but perhaps one should put it in strong
terms. A party which chooses its arbitrator be-
lieves that this arbitrator is to perform some
function as its quasi-attorney in fact or take a
liberal view at its claims. That is not what arbi-
tration is about. The right to choose ends the
right of the party. The arbitrator cannot be
linked to the party. Why is it that recently there
are so many applications for exclusion of an
arbitrator? Something not good is happening as
regards independence and impartiality of arbi-
trators. Let us be honest – it is not a good situa-
tion when a group of arbitrators is limited, and
at the same time is internally connected with
various dependencies. As a result we are deal-
ing with a situation where in one arbitration
someone is an arbitrator, and a moment later
p. 32 | Arbitration e-Review, No 3 (Summer) 2011
PART II
appears before his fellow arbitrators in the role
of attorney in fact for a party. These situations
should be avoided. I know that at present at-
tempts are being made to avoid them. This is a
pathological situation which occurs not only in
Poland but worldwide, where functions per-
formed by lawyers often overlap.
If you encourage someone to choose arbitra-
tion, then it must be honestly said that the
party should take into account the right of the
arbitrator to err. An application for setting
aside has ultimately a limited scope. Apart from
serious breaches which cannot be included un-
der the public order clause, there are no possi-
bilities of challenging an arbitral award on the
merits. This should additionally support the
view that the award be voluntarily enforced. If I
have confidence in the arbitrator, then I will
enforce his award. Confidence should be built
up by the fact that arbitrators are independent
and impartial. In contrast, if the confidence is
not there, then one should not avail of arbitra-
tion.
Let us move on to the main problem. The pre-
vious speaker accurately linked the answer to
the question of whether one may limit the
number of instances when examining an appli-
cation for setting aside with the question as to
the character of the application. I do not under-
stand those authors who state that an applica-
tion for setting aside an arbitral award is a par-
ticular form of a statement of claim and at the
same time imagine that one can limit the
course of the instances. The action must be ex-
amined from the beginning, i.e. from the first
instance.
I do not see any constitutional arguments
which would be against the thesis that pro-
ceedings brought about by the filing of an ap-
plication would start from the court of second
instance. Supervision over the arbitral award
must exist. This follows irrefutably from cer-
tain decisions of the Constitutional Tribunal,
whereas in theory it is possible – assuming that
an application is a measure of appeal – for su-
pervision by the State of the award of arbitra-
tors were to take place from a stage closer to
appeal proceedings. On the other hand, if we
read that at present we have 440 courts of arbi-
tration and very often the number of cases
which they examine is not large, then the issue
of access to the court should count. Why is it
then that these simple cases cannot be exam-
ined in each court, but rather it must be some
limited number of courts of higher instance?
From the point of view of the State judiciary,
the problem is that at present if we speak of an
overburdening of the courts, of proceedings
lasting a long time, then all those interested see
the solution being in a specialization of courts
and cases being remanded to examination to
selected courts only, which is to guarantee
faster proceedings. In the opinion of some, the
best thing would be to write into the Code of
Civil Procedure that proceedings are to be
completed without delay. Moreover, we are
dealing with pressure to remand specific cases
to selected courts. Meanwhile, as it seems, the
policy of the justice department at present is
different, the specialization of divisions is lim-
ited, in smaller courts the labour and commer-
cial divisions are liquidated, leaving just the
two main divisions. Perhaps one could intro-
duce this type of specialization, though one
should answer the question of whether such a
need actually exists.
What then is the remedy at this point in time?
And why not reflect on availing of the second
arbitral instance? Everyone skips over this
question because arbitral proceedings are
quick thanks to the fact that they are single-
instance. However, there exists a right to a sec-
ond arbitral instance written into the Code of
Arbitration e-Review No. 3 (Summer) 2011 | p. 33
PART II
Civil Procedure. What is the problem in offering
parties some type of supervision over an arbi-
tral award as part of a second arbitral instance?
Perhaps it would limit the filing of applications
with common courts for setting aside [awards].
The fact that there exists an application to the
court has the advantage that the court of ap-
peal may formulate a legal issue which it will
present to the Supreme Court to be resolved. In
turn, as part of cassation proceedings, the Su-
preme Court after 2005 clarified numerous
problems connected with application of the
provisions of part V of the Code of Civil Proce-
dure.
What therefore can be reformed? Of course, the
issue of the extent to which disputes are sub-
ject to arbitration is one of the problems to be
reformed. The Commission on Civil Law Codifi-
cation is open to a discussion with representa-
tives of the field of arbitration as to the extent
to which it is possible to determine a dispute as
to the possibility of setting aside resolutions of
general meetings of capital companies in arbi-
tral proceedings, whilst of course retaining the
rights of third parties.
We should note furthermore that the provi-
sions concerning courts of arbitration, which
have to a large extent been based on the UN-
CITRAL model law, have been in force for just 5
years now. Let us wait until their application
has become established, for the decisions of the
Supreme Court to set down the directions for
practice in the judicial decisions of courts, and
then it may turn out that a change in the provi-
sions is not indispensable. A habit has emerged
in Poland whereby as soon as we observe some
kind of pathological situation, the provisions
are immediately changed. Maybe it is better to
not change the provisions but rather better
prepare judges, better direct practice, so that
thanks to this court proceedings will move
more quickly.
Prof. Aleksander Chłopecki: Ladies and gen-
tlemen, I will perhaps disappoint you to a large
extent as you could have expected from the
presiding judge of a court of arbitration that he
would jump in the direction of a defence of an
autonomization of arbitration, but my con-
science will not allow me to do so. Apart from
the issue of specialized courts, with regard to
which I differ fundamentally with Prof. Ereciń-
ski, I must – I fear – agree as to the rest. I am
deeply attached to the idea of two instances.
We have here a mutually exclusive situation: on
the one hand, we would like it to be faster,
whilst on the other we see that the common
judiciary does not manage to cope with that
speed. Hence, we think like this: perhaps a
remedy will be to compress the instances. Of
course, but this compression – as Prof. Ereciń-
ski said – will unfortunately be done at the ex-
pense of the constitutional protection of the
interests of the parties. Nomina sunt odiosa,
though different types of cases occur.
As a side note one could reflect on why indeed
should a party appoint an arbitrator? Would it
not be better if arbitrators, especially in per-
manent courts, were appointed by either the
Presiding Judge or the panel. But that it would
not be like in the common court where a judge
receives a case about which he has no idea as to
specific material. The choice would be merits-
based.
Taking a look at the judicial decisions of the
Supreme Court, we see that - whether we like it
or not - we are dealing with a very general pub-
lic order principle. For example, a decision of 9
September 2010: “A lack of impartiality means
that the award of the court of arbitration is
contrary to the principles of public order.” A
decision of 2009: “Undoubtedly, however,
p. 34 | Arbitration e-Review, No 3 (Summer) 2011
PART II
handing down decisions on the basis of a selec-
tive, dishonest evaluation of the evidence
breaches the principles of legal order.” Decision
of 2008: “If damage was not caused, adjudica-
tion of compensation should be considered to
be contrary to the basic principles of public
order of the Republic of Poland.”
On the one hand, we encounter very strong
expressions regarding the lack of possibility of
intervention of State courts in arbitral proceed-
ings, whilst on the other hand we see the need
to carry out an analysis which de facto amounts
in some sense to resolving the case on the mer-
its and entering quite deeply into details.
Thus, from my point of view, what should be
considered is decidedly not a compressing of
this supervision but rather a retention of the
current model, with even a consideration of
whether the pre-requisites of the application
should not be more precise or broadened. This
is perhaps not in the purely particularistic in-
terests of arbitral judiciary but is in the long-
term interests. However, assuming of course
that common judiciary starts to work in much
more efficient manner.
Moving on to the last issue which perhaps will
amuse you: it has happened to me several
times that I was a witness in various courts, e.g.
criminal courts. I did not meet criminals too
often. Rather the situation was as follows: in a
case pending in matters connected with the
capital market the judge would ring me and
say: someone said that you could perhaps clar-
ify certain things. I cannot question you as an
expert as the court is the highest expert on law
but would you consent to testify as a witness? –
I would say, OK. It ends with a discussion with
the court about specific mechanisms, also legal
ones. I know that the Ministry of Justice has a
specific view combating specialist judiciary. I
would not be too dogmatic in this respect. If
one were to succeed in distinguishing reason-
able (as regards scope) issues for a common
court - after all that is the case, for example, in
the Competition and Consumer Protection
Court - then why not? After all a judge cannot
be an expert on everything. A judge who has 10
cases on the court calendar and sets a hearing
every 3 or 4 months is not in a position to con-
duct the proceedings economically because
after these 3 months he will have already for-
gotten the 10 cases. I apologize for this some-
what secondary motif. Thank you for your at-
tention.
Counsellor Ireneusz Matusiak: I would like to
look at the level of specialist courts which han-
dle given cases. I would ask myself a question
here: is there a need for a change in the model
of the application for setting aside an arbitral
award? The argument was made that, yes,
amongst other reasons because the problem
today is the multi-instance aspect. Appearing as
the presiding judge of a court, I would say that
the needs of courts of arbitration may be de-
fined differently. In practice, courts in many
cases examine a case as to the merits. I know
such awards. Thus, we cannot speak here of a
certain equal status, independence of courts of
arbitration. In many cases an application to a
common court is treated as a second instance. I
believe that a court of arbitration is still infe-
rior and that there is no equal status here.
Another issue with regard to the second in-
stance : in my opinion, one could accept a solu-
tion that the application is examined by the
court of arbitration. Supervision of the common
court would still be ensured by way of exami-
nation of the applications for recognition and
granting an enforcement clause to an award.
Dr. Beata Gessel-Kalinowska vel Kalisz: I
would like to take the floor as president of a
court of arbitration and a person who, in view
Arbitration e-Review No. 3 (Summer) 2011 | p. 35
PART II
of the position held, should care for the inter-
ests of all users of arbitration. In the opinion of
the majority in arbitration circles - and it is my
personal belief also - court supervision over
arbitration is necessary, especially when it is
question of the sensitive issues about which we
spoke earlier concerning certain standards of
conduct of arbitrators (and sometimes the lack
of such standards), as well as the internal pro-
cedures adopted by them. With regard to the
pre-requisites concerning setting aside an
award – I do not see any need for them to be
changed. It also seems to me that the public
order clause, in the form in which it is, should
be further worked on by a legal interpretation.
I believe that we are not in a position to make
the said clause more precise in our legal norms.
In its present form, the clause is acceptable also
in the context of international conventions.
Also, it is sufficiently flexible that it may cover
numerous irregularities, and I think that the
interpretation of the Supreme Court is going in
the direction whereby the interpretation of this
notion would not be broadened too much. The
point is for the content of the public order
clause to not make possible supervision of
awards of a court of arbitration as to merits.
As regards the second instance of arbitration –
I am thinking here of what Prof. Ereciński men-
tioned – I do not fully understand what this
concept is to look like. After all, both a second
and a third arbitral instance is possible. Indeed,
bearing in mind the autonomy of will of the
parties, they may establish their own mode of
proceedings, which may include a second and a
third instance. Also the Code of Civil Procedure
mentions a second instance. However, it should
noted that in the present model of post-
arbitration proceedings, it would be a fourth or
even fifth instance. This means that if the par-
ties wished to provide for a second instance, de
facto they would be adding yet more stages.
As regards compressing the application, I am a
supporter of this idea. I have many times dis-
cussed this with participants in today’s debate.
In my opinion, an ideal example which we
could apply also in Poland is the Swiss solution,
where it is the Supreme Court that is the in-
stance which decides on the fate of an arbitral
award. I do not understand why this solution is
difficult to accept. But also, if we move away
from the legal character of the award which is
decided in the arbitral proceedings, it is a final
award, thus it should – in my opinion – logically
be subject to the same rules of appeal as a deci-
sion of a common court. I would be very happy
if it were to turn out that there will exist the
possibility of a two-stage appeal of an applica-
tion, that is if we begin with courts of appeal,
which would considerably shorten the pro-
ceedings. Please note that we have prepared
estimate, incomplete data on the subject of how
long application proceedings last. It turns out
that these proceedings last on average at least
two years. One must wait a very long time for
the first hearing which decides on the applica-
tion. It seems to me that the application should
not last longer than the arbitral proceedings
themselves. I have shown the data of courts
which gave the average duration of their arbi-
tral proceedings – let us assume that it is 12
months.
It seems to me that we must do everything pos-
sible for application proceedings to be shorter
as otherwise it negates the whole sense of arbi-
tral proceedings, both as regards costs and
time. I would like if it were possible for pro-
ceedings to be shortened and for a case to be
examined first at the level of a court of appeal,
and then the Supreme Court. Perhaps we could
consider (I submit this to the attention of the
participants of today’s debate) the introduction
of a two-track procedure of proceedings: sepa-
rately for domestic cases and separately for
p. 36 | Arbitration e-Review, No 3 (Summer) 2011
PART II
international cases. In the matter of interna-
tional cases it is also a question of how to en-
courage a greater participation of Poland in
these cases. Perhaps in international disputes
there could exist a possibility of introducing a
separate procedure only to the Supreme Court,
whereas retaining two stages of proceedings in
domestic cases?
Prof. Jerzy Rajski: The first issue which does
not give rise to any doubt: we cannot question
that which constitutes the greatest achieve-
ment of the international legislator, which is
that of making uniform on a worldwide scale
the provisions concerning recognition and en-
forcement of foreign arbitral awards. This is
the greatest achievement in the history of in-
ternational law and we are not questioning
that.
On the other hand, a second issue, very impor-
tant, is the lack of proper harmony between the
specific nature of recognition and enforcement
of foreign awards of courts of arbitration and
the procedure of the proceedings. This specific
nature must be taken into account when adopt-
ing a pertinent procedure for proceedings be-
fore a State court. The foregoing cases are ex-
amined in the common ‘mill’ of court proceed-
ings in which all civil cases are examined.
Thus, a demand appears here for a certain or-
ganization of matters; perhaps one should be-
gin with those matters which can most easily
be taken care of, and then move on to the more
complicated ones. The first matter with regard
to which in my opinion there is a consensus
amongst those here present is the need to cre-
ate a special jurisdictional procedure for exam-
ining cases related to awards handed down in
international commercial arbitration. The in-
ternational character of these awards creates a
need for a special procedure which, on the one
hand, would meet the requirements as to mer-
its (special knowledge), and on the other hand
would create an easier and more effective
route thanks to which – it being the topic of our
conference – Poland could become a more at-
tractive place for international arbitration.
In turn, as regards awards handed down in
domestic arbitration, I agree with Prof. Ereciń-
ski that the matter is more complicated, though
indeed it is linked to the overall issue of putting
our justice system in order. And now a ques-
tion: what direction should one go in? There is
no easy answer to that question. First of all, it
should be preceded by empirical research
which would give us stronger grounds for put-
ting forward certain theses but intuitively such
routes which could be foreseen here should
take into account two criteria: on the one hand,
effectiveness, the efficiency of those proceed-
ings, and on the other hand requirements con-
cerning professionalization, that is specializa-
tion. A suitable solution must be found of an
organizational nature; one could consider cre-
ating in certain courts divisions or other units;
in any event specialization is necessary here. At
present what is required is knowledge which
State judges sometimes do not have. I do not
want to go back to the discussion from the first
part of our session in which it was emphasized
that the average law graduate does not have
sufficient education in this area and does not
acquire it in the course of apprenticeship.
These are very complicated issues.
In my opinion, one should not begin with
changes of the current instance model until
such time as we have the results of empirical
research on how it functions, but rather at-
tempt to make more efficient that which can be
made more efficient, without radical changes.
This means making some internal organiza-
tional improvements thanks to which those
cases could be examined, first of all by compe-
Arbitration e-Review No. 3 (Summer) 2011 | p. 37
PART II
tent judges, and secondly – in a procedure
which would be more efficient that at present.
Dr. Rafał Morek: I would like to speak just
briefly – a large number of interesting topics
have appeared in the discussion, but I will con-
fine my comments to just two of them.
It seems to me that our hands are tied as re-
gards the pre-requisites of an application for
setting aside an arbitral award. The standard
following from art. 34 of the UNCITRAL model
law is so common, adopted in all significant
arbitration jurisdictions, that a departure from
it – essentially in any direction – would be
treated as something unusual and controver-
sial. I would draw attention to the fact that art.
34 is closely linked to art. 36 of the law and
above all with art. 5 of the New York Conven-
tion of 1958. In the course of 50 years of appli-
cation, this regulation became the common in-
ternational standard. That would be all as re-
gards the issue of pre-requisites.
On the other hand, with regard to the issue of
how many instances there should be in super-
vision proceedings before State courts, I would
point out that the United Nations Commission
on International Trade Law (UNCITRAL) delib-
erately left this issue unregulated. The proce-
dure under which common courts supervise
arbitral awards depends above all on the judi-
ciary form in a given country. If in Austria State
courts operate quickly and efficiently, then the
three-instance proceedings adopted there may
work in practice. If in England an application
for setting aside an arbitral award has the na-
ture of an extraordinary appeal measure, then
also beginning proceedings from the High
Court has its own specific ‘local’ justification.
In general, to sum up, I subscribe to what
Counsellor Krużewski said: the dominant
model is to compress these proceedings into
two instances. Bearing in mind the lengthiness
of proceedings before common courts in Po-
land, it seems that this is a model which would
decidedly meet the needs of practice.
Ms. Barbara Grabowska: As can be easily
guessed, I am not a specialist in arbitration.
However, I would like to share some observa-
tions with you on arbitration in the context of
the European Convention on human rights, that
is arbitration treated as a possible ‘untypical’
access to justice. In the Code of Civil Procedure,
we read that an agreement to adjudication by a
court of arbitration leads to an automatic dis-
missal of a statement of claim before a domes-
tic court, which in my opinion means that a
potential application for setting aside an award
of a court of arbitration causes that it cannot be
treated as an action as then we would be deal-
ing with a situation where we would be adjudi-
cating twice in the same case.
On the other hand, bearing in mind the judicial
decisions of the European Court of Human
Rights, what Strasburg emphasizes is the effec-
tiveness of awards of courts of arbitration. In a
case where arbitration is obligatory, the re-
quirements following from art. 6 of the Conven-
tion are fully applicable to such proceedings.
The situation appears somewhat differently
when this arbitration is optional.
Over the last 3 years at least two quite impor-
tant decisions have been handed down (against
Serbia and against Ukraine), in which Strasburg
declared that a situation is in violation of the
Convention where despite the fact that arbitral
awards are handed down, because of the
lengthy appeal proceedings these awards can-
not be carried out. This, in turn, causes that the
State-Party to the Convention must pay com-
pensation in the full amount of the subject-
matter of dispute which was adjudicated by the
court of arbitration. I think that it would be
p. 38 | Arbitration e-Review, No 3 (Summer) 2011
PART II
worthwhile to hold a discussion on the form of
an application for setting aside the award of a
court of arbitration and its effectiveness, taking
into consideration the judicial decisions of the
Tribunal in Strasburg. As it is, to date we have
no ‘Polish’ Strasburg decisions concerning arbi-
tration. Perhaps if the Polish model of the ap-
plication for setting aside and arbitration itself
are ineffective, then later it may turn out that
such cases will go to the Tribunal in Strasburg.
Counsellor Paweł Pietkiewicz: I would like to
refer to what Prof. Chłopecki said, namely that
decisions of common courts in the scope of an
application for setting aside an award of a court
of arbitration are unpredictable. They are in-
deed unpredictable. In particular, this is caused
by the public order clause. Of course, its pres-
ence amongst the pre-requisites is necessary
but, by applying it in a pathological manner,
courts arrive at various conclusions and some-
times indeed examine the case as to the merits
for a second time.
It seems to me that this compressing or short-
ening of the entire post-arbitral proceedings
could also cover the following issue. Namely, if
an application for setting aside an arbitral
award were to be indeed addressed to courts of
appeal as courts of first instance, then these
courts are so few that I suspect that in a short
time an accumulation would appear of the
knowledge of judges working in these courts.
All the more that these are judges with exten-
sive experience and knowledge. At present we
have a situation where a judge working in the
first instance which must examine an applica-
tion for setting aside an award of a court of ar-
bitration has little chance of encountering this
type of issue once again. I suspect that most
often it is the case that on one occasion a judge
receives such an application for setting aside
an award of a court of arbitration, examines it,
applies the mechanisms and thinking processes
which he has used to date, that is more often
what is applied to the plaint procedure, and
uses this mechanism to examine such applica-
tion.
Now, even if a judge had relevant knowledge
and experience, the chance that he will be able
to use it for this type of case is quite slight as
the diffusion of applications in the application
proceedings is enormous. The likelihood is
small that such a number of cases will go to one
judge that this accumulated knowledge could
be used. If it were the case that there were far
fewer of these courts (we are talking about
courts of appeal), then the likelihood of devel-
oping a coherent line of judicial decisions and
building up experience would be much greater.
At the same time, the supervision of the Su-
preme Court which potentially could correct a
certain type of deviation from the correct un-
derstanding of the pre-requisites for an appli-
cation of a court of arbitration would ensure
the proper uniformity of those judicial deci-
sions. Thus, it seems to me that a shortening of
these proceedings, as proposed by Counsellor
Krużewski, where the first instance would be
the court of appeal, would also ensure a pre-
dictability of decisions of common courts.
Thank you.
Dr. Beata Gessel-Kalinowska vel Kalisz: I
will only speak briefly as I would just like to
raise an issue which was touched on by Coun-
sellor Pietkiewicz. I would like to take advan-
tage of the presence of representatives of the
Ministry of Justice. What I mean is how arbitra-
tion is seen and experienced by professional
judges. It seems to me that it is not understood
that arbitral proceedings are not formalistic in
their nature, such as for instance, I would say,
court’s execution of “promissory notes” I am
thinking of a specific dispute: the Gdańsk
awards, which was extensively commented on
in arbitration circles when the arbitral award
Arbitration e-Review No. 3 (Summer) 2011 | p. 39
PART II
was set aside in view of the fact that it was
signed (indeed in accordance with the tradition
adopted in courts of arbitration for many
years) under the justification. The award was
set aside because it had not been signed also
under the sentence of the award. I do not think
that this decision would have been upheld in
the next instance. Nonetheless, that case shows
that in a court of arbitration the same stan-
dards of proceedings are applied as are applied
in common judiciary. But that should not be the
case. It is a farther-reaching issue, a question of
education and understanding of what arbitra-
tion consists in. Thank you.
Prof. Karol Weitz: Thank you very much. Per-
haps first of all one issue with regard to the
application models which operate in Europe
and the model that we have. One thing has es-
caped us in the discussion: we have a model of
two instances, though there is no guarantee
that the Supreme Court will examine a cass-
ation as it may refuse to accept it for examina-
tion. Thus, in this respect we are somewhat
closer to England, for example.
Another thing: I agree that a potential com-
pressing of proceedings would absolutely not
be unconstitutional. Unfortunately, though, I
am almost certain that it would be considered
by the Constitutional Tribunal to be unconstitu-
tional. Why such a conclusion? If the CT be-
lieves that two instances are necessary in the
matter of costs of a trial, then it is highly prob-
able that – though probably not understanding
the problem of the application – it could go in
the same direction. I am speaking here of the
unpredictability of decisions of the Tribunal.
Another matter: in an earlier panel discussion
there was mention of the fact that proceedings
are lengthy; this is not the fault of arbitration,
but of State courts. I believe that it is above all
the fault of the parties which avail of this insti-
tution in a manner which is not entirely com-
pliant with the essence, objectives and func-
tions of the Act. It is a bit like this that on one
occasion someone is an arbitrator, hands down
a resolution, is convinced that it is right and
that this award should be upheld because he
did his best and arrived at the decision to his
best ability. On the other hand, a moment later
he is an attorney in fact and very often a little
time later he will be filing applications for set-
ting aside the award of a court of arbitration. Of
course, then the explanation is very simple: it is
in the interests of his client. But we must re-
member that since arbitrators are so good and
arbitration is so good, then there is a question
as to why the point of view changes as soon as
the function changes. After all, it is not the case
that in the case of Vivendi and Deutsche Tele-
kom the entire fault lay on the side of the State
courts. After all, it was not the State courts will
initiated such a large number of proceedings; it
was not the State courts which flooded them-
selves with hundreds of court submissions the
day before the hearing; it was not the State
courts which wrote 150-page court submis-
sions every day, transcribing almost the same
text every day. One must retain a sense of pro-
portion if one says that arbitration is ideal or
that something is wrong with it; if one says that
it is lengthy or that it is the fault of State courts.
It is not State courts which initiate proceedings
before themselves when it is a question of their
intervention in arbitration.
With regard to what Prof. Ereciński said, if the
parties submit to arbitration, then the assump-
tion should be this: since we choose the best
specialists, we should agree with their decision.
At that point the issue of the form of the appli-
cation becomes a much lesser problem.
Another matter: Prof. Rajski emphasized that a
compressing would lead to specialization but
we would not achieve even that. If it follows
p. 40 | Arbitration e-Review, No 3 (Summer) 2011
PART II
from the data we have here that we have ap-
proximately 1000 arbitration cases annually,
and we would like as few of them as possible to
end up in the courts: several score, two hun-
dred, three hundred? How many judges could
specialize in examining these applications? Af-
ter all, a couple of judges handle as many cases
annually. It is not the case that one can create
specialized units in individual courts. The prob-
lem is more complex than that.
With regard to Prof. Chłopecki: well and good if
we create specialized courts for individual
cases, only that then a very crucial problem will
arise which will take up a huge amount of en-
ergy: namely, to determine whether it is to be
this court or that court or the other court. An
example of this are the commercial courts. A
large number of resolutions of the Supreme
Court concern the question of whether a case is
commercial or not, and not what the problems
are.
Another matter: as regards the problem of the
model of proceedings, we are speaking some-
what about mathematics – two, three, one in-
stance, or straightaway a court of appeal. But
perhaps there is an indirect solution, perhaps it
is the application proceedings which should be
simplified: only in writing, without a hearing.
The party submits an application – there is a
reply to the application – there is a decision of
the court. Perhaps the problem does not lie in
the number of instances but rather in the form
of those proceedings. Perhaps this could be a
certain solution.
With regard to what Ms. Gessel-Kalinowska
said: the Gdańsk decision, the famous refusal to
grant an enforcement clause because the award
of the court of arbitration was signed under the
justification, and not under the sentence. This
is an obvious error. All of us here knows that
that was a mistake but does that mean that we
must therefore absolutely deny the ability of
State courts to exercise supervision? Not en-
tirely. Moreover, that is one of the mistakes.
There is another problem here: it was not the
court that thought this up, but it was the attor-
ney in fact who suggested it to the court. There
can be no discussion about the fact that such a
decision was mistaken. But do we need to go as
far as the Supreme Court in order to ascertain
that? Is that the procedure for proceedings that
we must have? This is why we have the possi-
bility of appealing such decisions in order for
such problems to not exist.
One last remark: I do not know any legal sys-
tem where supervision over the awards of a
court of arbitration would be granted only to
the court of arbitration. The Constitutional Tri-
bunal would undoubtedly deem such a solution
to be unconstitutional. In one of its rulings, al-
lowing submission of a dispute to the judicial
decision of a private court, it stated that it is
possible only because the State retains supervi-
sion in the form, amongst others, of an applica-
tion for setting aside an award of a court of ar-
bitration. Please do not assume that an applica-
tion for recognition or declaration of enforce-
ability would be sufficient, as there the subject
of supervision is one thing, whilst it is a differ-
ent thing in the case of an application for set-
ting aside an award of a court of arbitration.
Thank you very much. We have ended Part II of
our discussion.
Can Poland become a European arbitration centre?
Panel Moderator: Tomasz Wardyński Introduction by: Maciej Jamka
Panel Participants: Paweł Pniewski, Prof. Karol Weitz, Jacek Kaczmarek, Paweł Pietkiewicz, Prof. Jerzy Rajski, Dr. Beata Gessel-Kalinowska vel Kalisz and Małgorzata Surdek.
Arbitration e-Review No. 3 (Summer) 2011 | p. 41
PART III
Prof. Marek Michalski: Turning to the third
topic of the discussion, devoted to the issue
“Can Poland become a European arbitration
centre?” I invite Tomasz Wardyński to moder-
ate the discussion.
Tomasz Wardyński: Thank you. I turn over
the floor to Maciej Jamka, who will introduce
the topic.
Maciej Jamka: Thank you. I would like to start
by posing the question, What are the benefits of
being an arbitration centre? They are vast but
difficult to measure. One benefit, clearly, is
work for lawyers (which is why I was so eager
to take up this topic). The benefits extend to
the entire service sector, even hotels and other
such institutions. We tend to under-appreciate
this type of business and this sector of the
economy. I will give you an example. In a publi-
cation by the UK Treasury, entitled The Plan for
Growth, it was stated that the professional and
business services sector, including accountants,
lawyers and other professionals, was responsi-
ble for one-third of economic growth in the UK
in 2000–2007. This is the largest sector in the
British economy, generating £166 billion of the
gross domestic product. Of course we cannot
match that level, which Britain has been work-
ing towards for the past 600 years. But there is
still potential here for us, I believe.
Does competition exist between arbitration
centres? On the slide you may see two quotes
that demonstrate that such competition not
only exists, but has gotten stronger in recent
years. Markus Wirth is the head of the Swiss
Arbitration Association, and the ICC Task Force
on the Brussels II Regulation also discusses the
growth in competition. And who is in the run-
ning? The leader in Europe when it comes to
international arbitration is the ICC, followed by
London with the LCIA, Geneva, Stockholm and
Vienna. These are recognised arbitration cen-
tres which everyone has no doubt heard of, and
many of us have had the pleasure of making
use of their services. There are also other well-
known centres. The second league includes
Madrid, Milan, Germany (with DIS), and Mos-
cow. New centres are appearing: Dublin, Edin-
burgh, Kiev, Frankfurt.
I found statistics from 2007 saying that the
leaders, the ICC and LCIA, have more or less the
same levels of cases being filed. Meanwhile, the
new centres are observing significant growth.
There is probably some economic rationale for
this.
How do arbitration centres promote them-
selves? We will consider some examples of
countries in Europe:
p. 42 | Arbitration e-Review, No 3 (Summer) 2011
PART III
Spain fosters an arbitration-friendly legal envi-
ronment. There is a new arbitration act based
on the UNCITRAL Model Law, with work cur-
rently underway on amendments. There is dis-
cussion of strengthening local arbitration insti-
tutions by merging them, and with new regula-
tions, as well as promotion of arbitration
through the activities of the Spanish Arbitra-
tion Club, founded for this purpose in 2005.
Spain hosted the International Bar Association
Annual Conference in 2009. Spain defines its
goal as serving as a bridge between Latin
America and Europe, for obvious reasons.
Ireland – A friendly legal environment (a topic
we will return to), with a new arbitration act in
2010 based on the UNCITRAL Model Law. Arbi-
tration-related cases are assigned to one, ex-
perienced judge, the president of the High
Court. There are no appeals from his decisions.
A new institution, the Dublin International Ar-
bitration Centre, has been opened. There is a
strong arbitration community, and a branch of
the Chartered Institute of Arbitrators with 600
members. Promotion of arbitration: creation of
the organization Arbitration Ireland, hosting of
the ICCA Conference, strong governmental
support, with the Prime Minister of Ireland at-
tending the conference. Goal: to become, as the
Irish put it, “the Switzerland of common-law
countries.”
Scotland provides a supportive legal environ-
ment, with a new arbitration act based on the
UNCITRAL Model Law and, most importantly,
the strong support of the Scottish government.
The Irish stress that they are numerous in in-
ternational business, particularly in the United
States, and for this reason alone some portion
of the caseload may go their way. The Scots, for
their part, point out that although golf is one of
their strengths, it is not the only one. They also
specialize, for example, in energy, e.g. mining in
the Norwegian Sea. Both of these countries are
striving to find their niche in arbitration, and
neither of them rests on its laurels.
France – In the latest news, a new arbitration
law has just been passed, in 2011. I have not
reviewed it yet in detail, but an interesting and
revolutionary feature is that it is possible in the
arbitration clause itself to waive a right to seek
recourse against an award. This does not apply
only to international arbitration, as in Switzer-
land, but also domestic arbitration. Further:
efforts to keep the ICC in Paris, as mentioned
already by Mr Krużewski. What incentives are
offered? A new building for the ICC Interna-
tional Court of Arbitration, and tax exemptions
for staff. The ICC has obtained a status similar
to that of tax-exempt international organiza-
tions.
Sweden – New arbitration rules at the Stock-
holm Chamber of Commerce in 2007, and an
invitation extended to six international experts
to join the SCC Board, occupied for the previous
75 years exclusively by Swedes.
England – First of all, financial support from
the state. We can still picture the recent rioting
by students in London over budget cuts. But
the same budget includes special provisions
with a pool set aside for growth of arbitration.
On the slide you see the new office building
that is the headquarters of arbitration in the
centre of London. London arbitration does not
have this building yet. Just yesterday I was in
London for a procedural hearing, and because
of the cramped quarters of the current arbitra-
tion headquarters in London, the parties and
the arbitrators decided that it would be better
to move the hearing to another location: The
Hague. This is eyewitness proof that there is
competition between arbitration centres.
Turning to our own backyard: Is there an eco-
nomic need to create an arbitration centre in
Arbitration e-Review No. 3 (Summer) 2011 | p. 43
PART III
Poland? Could Warsaw become one of the
group of cities hosting major arbitration
courts? I think that our discussion will answer
this question, but I would first like to say only
that it appears that a business need for it does
exist. East of our own borders there are neither
effective courts nor well-established arbitra-
tion centres, and there probably will not be for
a long time. Thus the situation definitely pre-
sents potential. Jan Paulsson, a leading figure in
contemporary arbitration, has said that there
are two major factors here: First, will the na-
tional courts prevent the parties from obtain-
ing an award in a favourable time and at a rea-
sonable price? Second, after an award is issued,
will it be followed by costly proceedings before
the national courts?
When considering what should be done in or-
der to create an international arbitration cen-
tre here, I looked at the example of the Warsaw
Stock Exchange. Just 20 years ago, if anyone
said that Poland would one day have a strong
stock exchange, a centre for the region—which
I believe it now is—no one would have be-
lieved it. I think it is worth considering how
that happened and what were the conditions.
It seems to me, and this is just my subjective
view, that there are four essential elements:
the right legal environment, institutional
environment, state support, and human
capital.
Legal environment: In the case of the WSE,
the regulations have been shaped over the past
20 years and have undergone changes, but they
were always good or excellent regulations, and
no shortcuts were taken. Shall we consider
what we have in arbitration? A good law, but
not excellent. An example that has not been
mentioned yet is the effect of bankruptcy on an
arbitration proceeding, which is an incredibly
important issue but not understood at all by
most of the legal profession not involved in
arbitration. We have major problems with pro-
longed proceedings connected with arbitration.
Finally, we have unstable case law.
Institutional environment: The stock ex-
change is one central institution, a clear leader
organized by the state, equipped with every-
thing it needs, with financial incentives for
brokerages. What we have in arbitration is sev-
eral competing arbitration courts, the lack of a
truly impressive headquarters (even the offices
of the Polish Chamber of Commerce are merely
“not too shabby”), and no organizational unit
within the Ministry of Justice to stand watch
over arbitration or deal with the topic of arbi-
tration in general.
State support: The WSE was not built all by
itself. Other institutions were established, open
pension funds directed investment streams
toward the WSE, large privatizations by the
state were organized by the State Treasury,
there was pressure on investment banks to
encourage them to set up offices in Poland, and
the WSE was promoted by each successive
government.
What do we have in arbitration? Arbitration is
a private affairs of private individuals and or-
ganizations. This aspect has already been
raised: They earn money on it. There is no co-
ordinated state policy with respect to arbitra-
tion clauses in agreements affecting the inter-
ests of the State Treasury. We have heard from
Mr Dziurda, and I interpret his comments as at
best mixed feelings about arbitration. Mr Dzi-
urda only reaps the fruit of arbitration clauses,
however. Many prominent lawyers also have
negative opinions about arbitration. I daresay
that even in this room we have heard several
comments that give us pause to consider
whether arbitration is considered a desirable
element of the legal landscape in Poland.
p. 44 | Arbitration e-Review, No 3 (Summer) 2011
PART III
Human capital: The staff at the Warsaw Stock
Exchange has grown over the years along with
growth of the exchange. Know-how was im-
ported into Poland by international institu-
tions, law firms, investment banks and broker-
ages.
In arbitration we have a large local community,
partially satisfied with the status quo, and a
new wave of the younger generation of people
who seek broader horizons for arbitration.
With a few exceptions, we as Poles do not have
a presence in international arbitration struc-
tures, we are not engaged in global debates
about arbitration, and we are not physically in
attendance at world arbitration events.
In 1902 Lenin published a brief work with the
brief title What Is to Be Done? I mention it not
just because it is a catchy title, but also because
it appeared at a time when the revolutionaries
were in disarray—and indeed the December
Revolution was soon to be put down, in 1905. It
appeared at the time that there really was
nothing to be done. Nonetheless, eventually the
Russian revolution prevailed. Even the longest
journey starts with but a single step. So the
question is: what is the that first step?
For me, the first step is to articulate the goal.
The question is whether we want to have such
a goal, to internalize it, to adopt it as our own,
to strive in that direction. If so, we need to pre-
pare a strategy, a conscious-raising campaign
for state institutions to show that it will pay off
for the state and the state should act toward
this end. But also for the city. Further: to pre-
pare a strategy for joint action by the main ar-
bitration courts. “First, do no harm,” I think it
should say.
Promotion of Poland in the global arbitration
community: writing for law journals, partici-
pating in worldwide events, hosting interna-
tional events, promotion in the countries that
may potentially be interested in our services,
participation by individual lawyers in foreign
arbitration institutions.
As I get older, it seems to me that nothing has
such a good effect on human relations as a little
self-serving flattery. That’s why I would like to
say now that the Lewiatan Court of Arbitration
is already on this path, and it is doing a lot to
reach out beyond the domestic environment. It
is enough to mention the successful confer-
ences last year and the Polish-Austrian coop-
eration initiative, which will be held for the
second time in June. Also important is the arbi-
tration quarterly published in English. The list
goes on.
But if we truly want to become a major interna-
tional centre, certainly not in just a year or two,
that depends on all of us, the arbitration com-
munity. Thank you.
Tomasz Wardyński: Thank you very much, Mr
Jamka. Before we begin the discussion, I would
like to draw your attention to a brief report on
the ICC International Court of Arbitration. Be-
cause we have with us today Paweł Pniewski,
who is the chairman of the national committee
ICC Poland, but Piotr Nowaczyk is not with us, I
would like to request a brief report on the role
played by the ICC International Court of Arbi-
tration in the Polish arbitration community.
Then we will turn to the discussion.
Paweł Pniewski: Thank you, Mr Chairman.
Good afternoon, ladies and gentlemen. First of
all I would like to convey the warmest regards
on behalf of Piotr Nowaczyk. Unfortunately he
could not be with us today, and he is truly a
person who would have much to say on the
subject of how we should promote Poland as an
arbitration centre.
Arbitration e-Review No. 3 (Summer) 2011 | p. 45
PART III
With respect to the ICC, you have materials be-
fore you which I will not discuss in detail. I
would like to say a few words about the “war”
going on over the ICC’s staying in Paris. Indeed,
there was serious competition, and there was a
battle between France and Switzerland and
Austria. The parties brought heavier and heav-
ier artillery to the table. When you get right
down to it, the basic reason that the ICC stayed
in Paris was that no one wanted to leave that
beautiful city. Because the financial arguments
of the two other countries were serious, how-
ever, the French government had to give way
and offer the broad concessions to the ICC
which have already been mentioned.
If you look at the enclosure to the materials you
have, you will probably notice that it begins
from 2001. We began activity in 2000. Piotr
Nowaczyk became our ICC representative in
about 2003. More or less from the same time,
as you will see, the numbers of parties from
Poland began to grow significantly, and the
number of Polish arbitrators, as well as Poland
as the place of arbitration, not to mention Pol-
ish as the language of the arbitration.
I can only say, first, that promotion works, and
it is possible to promote Poland just as we to
some extent promoted the ICC on the Polish
market. How did we do it? At a certain time, we
consistently organized conferences to popular-
ize the ICC, travelling among the largest cities
in Poland and presenting the accomplishments
of the ICC, particular the achievements of the
International Court of Arbitration. Piotr
Nowaczyk became very actively involved in the
work of the court. At one point we even began
to think about foreign promotion. We did con-
duct two manoeuvres, as ICC Poland, in Minsk
and in the Czech Republic. Not that the ICC
needs to be promoted in the Czech Republic,
where they have their own national committee,
but it was promotion of Poland as a strong ar-
bitration centre. We are also happy that our
colleagues actively participate now in sessions
of the ICC Commission on Arbitration. It’s not
the way it used to be, when one person would
travel there every six months. I am pleased to
say that our representation on the ICC Com-
mission on Arbitration is very strong.
For my part, I would also like to add that ICC
Poland is always eager to cooperate and join in
on any project connected with promotion of
Poland as an arbitration centre, because I be-
lieve it is in our common interest. Thank you.
Prof. Karol Weitz: Thanks to Mr Jamka for his
introduction. My comments will not be as or-
ganized, but I would like to tie in to the infor-
mation about the contribution that the arbitra-
tion market makes to the gross domestic prod-
uct in the UK. I think that this is just a small
fragment of the whole picture, because in the
UK the legal services market as such is an im-
portant element in establishing the country’s
position. As an example, right now in Brussels
we are negotiating a new Brussels I Regulation.
One of the options is to replace national rules
with this EU regulation also when the defen-
dant is domiciled in a third country. The great-
est objection was raised by the UK, because it is
against its interest for Brussels, instead of a
court in London, to decide when the English
courts will be able to decide a dispute between
someone from India and someone from Can-
ada. If it is a good case or an interesting case,
the English court will hear it, and if not it will
find that it is not the proper forum.
The issue of arbitration as an element affecting
the position of the country and its welfare is
very important. Of course, we are starting from
a much worse position. London is not an arbi-
tration centre just because London is a nice
place to visit. It is not just several centuries of
development of arbitration, but also historical
p. 46 | Arbitration e-Review, No 3 (Summer) 2011
PART III
events. To put it bluntly, Poland did not have
the good fortune to have colonies—or at any
rate we had only one, in the 17th century,
through the Duchy of Courland, which we lost
after 20 years. That is the unvarnished truth. In
a manner of speaking—again, bluntly—we had
colonies much closer, to the East, and this is
probably the arbitration market we should be
reaching for. We will not compete with London,
and we will not compete with Paris, Vienna or
Stockholm. If there is one thing we can do, it is
to return to the East. There is no such market
in Central & Eastern Europe either. Here we
may express amazement. Germany has no one
strong arbitration centre. There is only DIS, but
it is left somewhere back at the starting block.
If there is one direction we should look, it is to
the East.
At this point I would like to jump to the issues
related to the conditions for creation of an arbi-
tration centre. I agree that the regulations in
the Polish Civil Procedure Code are not perfect.
When we enact a set of regulations, it is only
after some time that their weaknesses become
visible. But I would always stress that a law
that is a little better or worse will not guaran-
tee that arbitration in fact works well. This is
because the arbitration regulations are flexible
enough to create the conditions enabling arbi-
tration to develop in Poland.
It is hard for me to accept such a superficial
view that we cannot be an international arbi-
tration centre because the state courts here are
too powerful and interfere too much. Certainly,
the regulations are developing in the direction
of limiting that interference. That will happen,
but it seems to me that first arbitration must
demonstrate that it needs less interference.
This is an area where it is necessary to con-
vince decision-makers that less interference is
needed. That is why I would also strongly em-
phasize that it is not just the fault of the state
courts that there are post-arbitration or arbi-
tration-related proceedings that last too long. It
is not just the fault of the courts, but also coun-
sel who appear before the arbitrators, and the
parties. This is extremely important. I do not
want to speak too harshly here, but sometimes
certain behaviours display hypocrisy. On one
hand we say we want to reach an award more
quickly, as soon as possible, and that it should
be effective and enforceable, but on the other
hand we say that to defend the client’s inter-
ests, I will use every opportunity available, to
the bitter end.
One more thing: I agree that our regulation
concerning the effect of bankruptcy on arbitra-
tion is bizarre. I see no ground on which this
regulation can be defended. That is my opinion.
I have always been opposed to it. This issue
should be addressed in a completely different
way.
Another issue, perhaps the biggest problem:
many competing arbitration courts. There is no
concerted will on the part of the broader arbi-
tration community to agree institutionally, as it
were, on one Polish arbitration court for ex-
port. It is not up to me to take action in this re-
spect. I can only say that perhaps an interim
form would be some joint institutions. Perhaps
a solution would be to create an arbitration
institute, in which all of the permanent arbitra-
tion courts, or at least the major ones, would be
involved as founders, without trying to decide
whether we are more important than the Pol-
ish Chamber of Commerce or vice versa. I offer
for consideration the creation of such an arbi-
tration institute. Perhaps it would be a solution.
With all due respect, I would not count on the
Ministry of Justice here, because it is probably
not institutionally prepared to act toward this
end. There is no such tradition in the ministry.
Please note that in the case of the Warsaw
Arbitration e-Review No. 3 (Summer) 2011 | p. 47
PART III
Stock Exchange, it is much easier to justify its
public importance as a centre. Unfortunately,
arbitration is popularly labelled as an elitist
form of dispute resolution. This is a certain im-
age problem.
Another thing: The arbitration community is to
some extent a closed community, which is not
always willing to admit the new arbitration
generation into specific, ambitious arbitrations.
In a human sense this is somewhat under-
standable. We can’t hide the fact that this is the
business of the lawyers, thanks to whom the
disputes may be resolved.
Unfortunately, we are not heard in the overall
European discussion of arbitration. I am sorry
to say that when the draft Brussels I Regulation
was being prepared, not only where there no
publications on this topic in Poland, there were
also no reports that Polish experts were par-
ticipating in meetings with the European
Commission on whether or not Brussels I
should be extended to arbitration. I will stop
there. In the draft regulation presented by the
Commission, there were certain concepts for
extending aspects of the regulation to arbitra-
tion. At this time it appears that probably that
will not happen. It seems like a good thing to
me, but the largest arbitration centres are
blocking it. The UK and France said quite
bluntly that the provisions that are being pro-
posed should be thrown out. One British pro-
fessor admitted straight out, “This is about our
money.” We want to decide when and how ar-
bitration will function here. It seems that we
can gain from this, because the Brussels I Regu-
lation that was planned could have caused ossi-
fication of the status quo, as it assumed the
omnipotence of the courts of the state of the
place of arbitration, which in European terms
would mean the omnipotence of Paris and
London, perhaps Stockholm, sometimes Vi-
enna. As long as that ossification can be
avoided, there is always a chance that a slice of
the cake will be left for Warsaw. That is my
personal hope for the entire arbitration com-
munity. Thank you.
Jacek Kaczmarek: I am not in a position even
to begin to answer the question of whether Po-
land can become a European arbitration centre.
I would like to make a few comments to you,
however, on the initiatives and actions we are
undertaking in our own arbitration court. I
think that these actions in some way serve the
notion that in the future our country could be-
come such a centre, specifically by creating fa-
vourable conditions for development of alter-
native methods of resolving disputes in every
field, among businesses in particular, but also
among economic institutions, lawyers, and le-
gal scholars.
We are confident that concrete actions, the
number of cases, and the great experience and
level of the decisions that come with it, are a
method for development and an increase in the
interest in our country as an arbitration centre.
The efforts of each of our arbitration courts
concerning the number of cases and the level of
the decisions, the support of a “good law,” and
building a positive atmosphere of all of these
groups, are enough to head in the right direc-
tion. Not necessarily through creation of any
new central institutions, or if so only an organi-
zation supporting and coordinating the goal we
jointly set for ourselves.
I am the vice president of a small arbitration
court. From the perspective of Warsaw it is a
local court and a local community. We have
nonetheless adopted the guiding principle for
our activity that even though our capabilities
are local, we would like to think and act glob-
ally—or at least that is our aspiration.
p. 48 | Arbitration e-Review, No 3 (Summer) 2011
PART III
Thus we try to establish cooperation with spe-
cific arbitration courts. In our actions on the
international side, we have decided to develop
this cooperation with countries and arbitration
institutions in Eastern Europe, where we see
potential and dynamics for growth in economic
relations, although we also perceive risks re-
lated to economic and cultural differences and
from differing visions and levels of the civil so-
ciety. Therefore, as I said, we try to form close
contacts directly with the arbitration courts
and chambers of commerce of these countries,
by signing various declarations and under-
standings, in which we try to have an impact on
local government and economic institutions in
our regions, to strengthen and reinforce the
economic cooperation between businesses
from our regions.
In these initiatives, we rely on opportunities for
effective use of alternative dispute resolution,
including the benefits of agreeing on an arbitra-
tion clause. We also undertake to promote the
concept of arbitration, and also indicate to the
businesses cooperating with us from the given
regions the option to select one of our arbitra-
tion courts who are signatories to these agree-
ments. We promote legal knowledge among
businesses, particularly in the area of commer-
cial law, with respect to the legal systems of the
countries in question. We organize workshops
and training sessions here.
We also undertake to provide one another in-
teresting rulings in cases decided by the arbi-
tration courts in the given countries. We invite
each other to participate in conferences and
seminars that we organize. We would also like
to present and make available analyses, reports
and publications concerning arbitration, and
depending on the possibilities and the needs,
we supplement one another’s list of arbitrators.
The scope of the declared cooperation is open
and may always be extended. We also under-
take to include information on one another’s
website concerning the arbitration courts in
question and the host chambers of commerce,
as well as their logos.
These declarations and understandings are not
empty or just on paper. Among recent events,
we were on a working visit to Ukraine. In Kiev
we met with the president of the International
Commercial Arbitration Court at the Ukrainian
Chamber of Commerce & Industry. During the
meeting we exchanged views on the function-
ing of arbitration in Poland and Ukraine and
also learned about the specific nature of dis-
pute resolution between Ukrainian businesses
and the Ukrainian legal regulations in this area.
We also visited the Ternopil Chamber of Indus-
try & Commerce. One of the results of that
meeting was signing of another cooperation
agreement. For three years our court has been
cooperating primarily with arbitration courts
in Ukraine, but we also have contacts, and our
own arbitrators on the lists, in Georgia,
Moldova and Slovakia, and vice versa. So far, in
the 5 years that our court has been in opera-
tion, our arbitrators have resolved two interna-
tional disputes, and to the best of our knowl-
edge the awards were complied with voluntar-
ily, without commencement of execution pro-
ceedings.
In Ternopil, Ukraine, we also organized a con-
ference on alternative dispute resolution in
Ukraine and Poland. The honorary patrons of
the conference were the Minister of Justice, the
Polish Consul General in Lvov, and the honor-
ary consul of Ukraine. Over 100 people from
Ukraine and Poland took part in the confer-
ence.
During another visit to Ukraine, the president
of the arbitration court, Włodzimierz Brych,
met with the Ukrainian Vice Minister of Justice
Arbitration e-Review No. 3 (Summer) 2011 | p. 49
PART III
to discuss current issues in development of
ADR in Poland and Ukraine. The result of the
meeting was a common initiative to organize a
major conference on arbitration in Odessa. It
was held in October 2010, and representatives
of arbitration and mediation from many coun-
tries around the region took part. The confer-
ence in Odessa also resulted in establishment
of the ADR Cooperation Forum, whose goal is
to promote arbitration and mediation in the
signatory countries. Cooperation declarations
were signed by representatives of arbitration
institutions from 10 different countries. The
forum is open to anyone who wants to cooper-
ate.
Last year we also participated in an interna-
tional conference in Chişinău, the capital of
Moldova. Today, at the same time as our own
meeting, a conference is being held at our court
in Nowy Tomyśl—the 5th in a series entitled
“Arbitration and Mediation in Theory and Prac-
tice.” The honorary patrons of the conference
are the Deputy Prime Minister and Minister of
Economy, the Minister of Justice, and the local
authorities of Nowy Tomyśl. Distinguished ar-
bitration and mediation scholars and practitio-
ners from Armenia, Azerbaijan, the Czech Re-
public, Denmark, Georgia, Kazakhstan, Lithua-
nia, Poland, Romania, Russia, Serbia, Turkey
and Ukraine are scheduled to attend. After the
end of the conference, there will be a working
session of the Odessa 2010 ADR Cooperation
Forum I mentioned before.
I think that for a court in Nowy Tomyśl, we
have done a lot to promote arbitration. We
hope that this carries over to the number of
cases filed with our court. Nonetheless, a
greater caseload, including international cases,
does create problems of its own. Handlings the
logistics for an international dispute is a big
challenge for us, although, as I mentioned, we
have already completed the first international
cases. They were concluded successfully, with
fair, substantive and professional awards.
In the rest of the discussion about barriers to
development of arbitration, no doubt many
issues will be raised. It is important that these
barriers be identified and brought to the atten-
tion of decision-makers, in order to find posi-
tive solutions.
Referring to cooperation with countries from
Eastern Europe, we count on cooperation spe-
cifically with this region. There are many arbi-
tration institutions and courts in Poland that
have established contacts with countries in
Western Europe. Thus we may hope that a
combination of these experiences and con-
tacts—abandoning unhealthy forms of ambi-
tion and competition—presents, I believe, an
opportunity for Poland to become a European
arbitration centre. I say this even though I must
admit that in the hand of cards we hold as a
nation, a willingness to compromise is not our
strong suit. There is a lot of work to be done
there. Thank you.
Paweł Pietkiewicz: Much has been said about
whether Poland can become an arbitration cen-
tre, and I would not like to repeat the state-
ments I agree with, but rather add something
or possibly criticize certain views. It seems to
me—and here I agree with Prof. Weitz—that
the expectation that Poland will become an
arbitration centre on a European-wide scale, or
a European centre in the sense that it will be
important for the entire Europe, is premature
at this point. I agree with Prof. Weitz that the
kind of centre Poland could become would be
limited to our region, and not even the whole
region. Central & Eastern Europe: Yes, here
Poland could conduct a certain expansion in
this respect, but not entirely. I think that the
Baltic States would naturally gravitate toward
the Scandinavian countries. Russia is a specific
p. 50 | Arbitration e-Review, No 3 (Summer) 2011
PART III
market unto itself. If any cases did come in, but
probably not many if at all, it would more likely
be from the former Soviet republics, not from
Russia itself. With respect to expansion west-
ward, that expansion would end at the Oder
and Neisse rivers. As for the south, I think that
there is a large area where we could make an
impression—particularly when we consider
what is happening now with the rules of the
arbitration court in Bucharest and in Sofia.
These are not large courts, but I have the im-
pression that there is room for expansion
there. Particularly when we see, to use Mr
Jamka’s example, that a bank from Slovenia has
just been listed on the Warsaw Stock Exchange
within the past couple of weeks, there is a
natural gravitation in that direction.
What does it mean to be an arbitration centre
for the region? The expectation at this time that
we will export our know-how in this way, that
parties will sign arbitration clauses for Polish
arbitration courts, that we will export Polish as
a language of arbitration, or that we will export
the jurisprudence of our state courts or arbitra-
tion courts—I think that those expectations are
over-reaching. I think that being an arbitration
centre may only mean that Poland becomes the
location for arbitration proceedings—not nec-
essarily before Polish arbitration courts, but
even before other courts—and if Polish arbitra-
tors hear these cases and Polish lawyers ap-
pear in these cases, that in itself would already
be a major accomplishment. It appears that this
is sufficient to become an arbitration centre. It
does not necessarily mean that cases are physi-
cally brought here, or hearings are held in War-
saw, or that Polish courts rule on applications
to set aside awards issued here in Poland.
I was in Odessa and Kiev, and I was even in
Chişinău. I have the impression that the
amount of know-how we have here in Poland
already is incomparably greater than other
countries in the region. A serious problem is
that the vehicle for exporting knowledge is lan-
guage. And, clearly, such arbitration centres as
Dublin, Edinburgh and Frankfurt will have an
easier time of it because theirs are commonly
known languages, conference languages. The
Swedes are certainly in a different situation,
but the history of Swedish arbitration is based
on the fact that there was a neutral body there,
where East and West could meet, and that is
why arbitration blossomed there.
It seems to me that in Central & Eastern
Europe, we could be attractive—although not
for all countries in the region—specifically by
selling or exporting our know-how. Right now
we are witnessing that this will soon happen, if
it is not already happening. We observe a very
large phenomenon of export of capital from
Poland, or via Poland, to the region. This will be
accompanied by arbitration clauses. Here we
have a large field to mine for expansion, so that
in a situation where this kind of export is being
conducted from Poland we can attract these
cases to Poland. In any event, we can bring our
interest to bear in this field, not so that the
cases would necessarily even be conducted in
Poland. Thank you.
Prof. Jerzy Rajski: Thank you. Ladies and gen-
tlemen, in order to answer the question of
whether Poland can become a European arbi-
tration centre, we first need to ask a prelimi-
nary question: Are there any objective grounds
that would encourage establishing such a cen-
tre in Poland specifically? The answer is Yes.
First, because of the geopolitical location of our
country, we are at the crossroads of East and
West, North and South. And this is not just an
issue of geopolitics, which is of great signifi-
cance in this area, because we know that much
depends on the political positions of countries.
If you have their support, there are opportuni-
ties, but without that support there are not. But
Arbitration e-Review No. 3 (Summer) 2011 | p. 51
PART III
there is also a second factor that we can bar-
gain with: the cultural factor. Namely, we are
the heirs of a tradition of legal culture which
also draws its sources from various traditions,
mainly western, Romance or Germanic, but it
should also be remembered that before the
war, for a certain time in the period following
the partitions the system of Russian law was in
force in some Polish lands. Thus we have a
good geopolitical location and we have a rich
legal tradition. What do we lack? We lack the
most important thing: the right infrastructure.
That has to be built consistently, and slowly,
exploiting the current situation, both objective
and subjective.
Most essential is to build the support, because a
house cannot be built without a foundation. In
my view, a realistic attempt to construct such
support could be made by creating an interna-
tional institute of arbitration law and practice
in Poland, which would be the start for building
the centre that could arise on this foundation.
The institute could serve the functions men-
tioned earlier in our discussion: educational,
training staff and providing continuing educa-
tion for practitioners. Thus it could serve vari-
ous useful purposes, and there is something to
build it on because there are certain elements
of an arbitration centre already existing at the
University of Warsaw. Thus with a little organ-
izational stimulus an attempt could be made to
take it out of the academic structure and build
something greater. In the longer term, of
course, with support from the state being nec-
essary for this, we could think of building a
kind of international arbitration centre in War-
saw along the lines of the LCIA, for example a
“Warsaw Court of International Arbitration,”
or, drawing on the Swedish pattern, affiliated
with the institute I mentioned. In any event, a
degree of positivism is needed here. First it is
necessary to start the fundamental structural
work so that there is solid support for further
efforts.
I firmly believe that there are objective chances
for Warsaw to become an international arbitra-
tion centre in the near future. Our geopolitical
position may be one important element. Note
that it is fairly easy to get to Warsaw from any
country in Europe. Warsaw also has good con-
nections with economic centres in both Ameri-
cas and in Asia.
Thus, exploiting the strengths we have at this
time, we can try to do something. But we will
need support from the world of commerce and
the world of politics.
Dr. Beata Gessel-Kalinowska vel Kalisz: Prof.
Rajski, I think that is a fantastic comment, be-
cause it demonstrates that we have great po-
tential, and together we can accomplish this. I
would just add two elements: Our community
is large, we have numerous legal and scholarly
personnel, and, to put it crudely, we are the
“producer” of some of the biggest and most
prominent disputes anywhere in Europe. With
many disputes, we are also in a position to cre-
ate an active centre to service those disputes. I
think that when it comes to promoting Polish
arbitration, the truly most important thing is to
consolidate the community. This means that we
need to come together and support one an-
other within the existing international institu-
tions, along the lines Paweł discussed. This
doesn’t mean just to hear lots of international
disputes in Warsaw, but also to support one
another on the international arena, whether
through participation in organizations, or
European legislative work, serving as arbitra-
tors, or any other way. We are not just fighting
for Warsaw to become the place of arbitration.
I think we are in a position to achieve this.
p. 52 | Arbitration e-Review, No 3 (Summer) 2011
PART III
I also think that today’s debate is the first step
toward that goal. We invited all of the major
arbitration institutions to take part, and almost
all of them responded. We are here and talking.
Note that if we look at the other side of the ta-
ble, we see lawyers from various competing
firms. If we manage to come together in this
sense, despite competing with one another
every day, and discuss what should be done to
jointly promote Polish arbitration on the inter-
national arena, it seems to me that this is a
good start and shows that we can do this to-
gether.
Małgorzata Surdek: Ladies and gentlemen,
when I saw the title of this debate I thought it
would be interesting to debate a slight varia-
tion on the topic: not whether Poland can be-
come a European or regional arbitration cen-
tre, but how Poland can become such a centre.
Prof. Rajski pointed to the potential, in the
sense of the geopolitical position and a certain
legal tradition. Nonetheless I have the impres-
sion that we are sorely missing something in
our discussion. We said first with a certain
amount of reserve, and then more and more
openly, that when we talk about arbitration we
are talking about business. We also use words
like “competitiveness”—being competitive
with other arbitration centres. We should not
limit our discussion only to how to remove the
legal barriers. Although that is clearly an im-
portant point and without any doubt encour-
ages promotion of arbitration, it does not guar-
antee success.
This means that it is not just about removing
barriers, and amending the Civil Procedure
Code, but we need to consider what incentives
we could create so that Warsaw, and Poland,
would really be taken seriously as an arbitra-
tion centre. Maybe not yet equal to the first
league, but at least the second. We are able to
identify fields for potential expansion. We can
point to Eastern Europe, and Southern Europe,
but we are not focusing our debate on what in
fact would encourage a company from Lithua-
nia, or Slovenia, or Kazakhstan to decide on
arbitration in Warsaw instead of London, Paris
or Stockholm. Thus I think that we should de-
vote a lot attention to this if the discussion is
truly going to change anything.
Raising the profile of the Polish arbitration
community in the international debate is abso-
lutely crucial. Of course, I agree with Mr
Jamka’s diagnosis that we practically have no
presence. Maybe that is too harsh, but we are
insufficiently present in the international de-
bate.
The third and final reflection is that state sup-
port is absolutely necessary. Arbitration, and
organizing an international arbitration centre,
is one way to promote the country. Just as the
French government fought to keep the ICC
headquarters in Paris, and just as countries
promote themselves and compete to host the
Olympics or other sports events, so also, it
seems to me, without the active role of the state
we will not manage to quickly reach the place
we want to be. Thank you.
Summary of the Debate
Prof. Andrzej Kidyba, prof. Marek Michalski, dr Beata Gessel-Kalinowska vel Kalisz
Arbitration e-Review No. 3 (Summer) 2011 | p. 53
SUMMARY
Prof. Andrzej Kidyba: Let us sum up. I think
that today’s meeting was, in fact, a discussion
on the condition in which Polish arbitration
currently finds itself. I shall not dwell upon the
issues addressed by the last panel because one
can only support the voices diagnosing the
situation and stating that arbitration should be
internationalised. I wonder, however, if the
situation is as good as it has been presented
here. What really worries me is the small num-
ber of cases tried by arbitration courts. There is
no doubt that we do not have many cases. I
think that, taking into account certain past be-
haviour, we should concentrate on promoting
arbitration. As Ms. Gessel informed us, we have
here two people representing the Ministry of
Justice, and that Ministry recognizes the prob-
lem of arbitration. I guess there is plenty of
room for promoting such activities.
It is really good that Mr. Bobrowicz and the
representatives of the Supreme Bar Council
and the commercial chambers were here with
us. This idea should really by explored and
promoted to cause an increase in the number
of cases.
We have pointed out certain features of arbi-
tration. My learned colleague began with such a
distinction. I have doubts as to whether the
features enumerated here result from self-
judgement or arise from a comparison with the
common court system. I think that the latter is
true. I am of the opinion that we really need a
more profound discussion on the situation in
which arbitration finds itself right now, and
about the problems we may encounter. Such
issues have been highlighted here. If we men-
tion the pace of the proceedings, we cannot
ignore the issue of complaints - just as Ms. Ges-
sel said. If we argue against flattening the sin-
gle-instance system of arbitration courts, we
would lengthen the proceedings and make
them more costly. Then the features of arbitra-
tion which we have pointed out, such as the
fact that it is inexpensive and fast, will fail to
exist in reality.
I think that there is also a certain client-related
issue which is sometimes raised in unofficial
discussions and sometimes completely ignored.
There are relations in which arbitrators are
involved and standards which should prevent
such situations. I have come across many situa-
tions in which an arbitrator fails to understand
his or her role, because he or she acts as an at-
torney or even an ally of a party to the proceed-
ings.
The other problem which is worth discussing,
and which has already surfaced today, is the
issue of the “transparency” of actions under-
taken by an arbitrator. In some courts an arbi-
trator may, on one day, be in charge of a case
hearing and on another day perform the duties
of an attorney. I think that this should also be
the subject of a wider discussion.
Another problem is the issue of the exclusion of
arbitrators.
p. 54 | Arbitration e-Review, No 3 (Summer) 2011
SUMMARY
To cut a long story short, there was not much
unity showed today. Some of us expressed an
opinion that the pace of arbitration proceed-
ings is too fast, some that it is too long, some
said that arbitration was expensive, and some
the contrary. I do not agree with the opinion
expressed by Prof. Chłopecki that the principle
of the asymmetry of costs was applied by the
arbitration court at the Polish Financial Super-
vision Authority leading to cost minimization.
Well, such cost asymmetry failed to translate
itself into the number of cases because this
number is really very small. I would rather
share the opinion that we should really operate
according to the principle that “cheap meat
never makes good soup”. I do not think that
costs have any influence on arbitration clauses.
I would also like to draw you attention to a cer-
tain idealism that we have come across here a
couple of times. Mr. Wardyński said that arbi-
tration was not for the type of people who en-
joy court processes. Agreed. Then we had some
other opinions demonstrating a certain ideal-
ism. Someone said that if we agree on an arbi-
trator, we automatically agree on the award. If
this were true in practice, and I have recently
participated in a great many arbitration cases
at the arbitration court at the Association of
Polish Banks, then court employees would not
do what they actually do, i.e. they photocopy
court files. At the request of the parties. Then
the parties wish to challenge the awards. The
practice is then contrary to the idealism.
I think that this has been a very good meeting.
All the opinions were so clear and interesting
that there is no need to address them individu-
ally. It would make it a really long debate. And
Professor Michalski would silence me very
shortly. Thank you very much.
Prof. Marek Michalski: Let me also share
with you some of my own opinions. They relate
to different facets of the discussion and prob-
lems which occurred during individual panel
discussions.
Let me refer to the last panel, in which the idea
of an arbitration centre in Warsaw was brought
up. How does the idea of an arbitration centre
in Warsaw, or even a regional centre, relate to
the fact that, according to what Mr. Bobrowicz
said in his presentation, approximately 77% of
entrepreneurs do not feel the need to use the
support of lawyers in their operations? The
necessity of lawyers participating in business
ventures is growing. We observe that there is a
need for specialization, which is the conse-
quence of the dynamics of the social, economic
and technological processes which we are en-
countering. There is also the issue of profes-
sionalism which we have already mentioned in
the context of arbitration and the lack of spe-
cialized jurisdiction.
By the way, I would like to point out that at the
beginning of the nineties there was a discus-
sion about whether a stock exchange court
dealing with securities cases should be ap-
pointed. The court obviously did not come into
existence, but please bear in mind that there
are currently a great number of cases related to
the financial market, financial instruments, and
options, and that not a great number of them
reach arbitration. We should extend the scope
of arbitration activities to such areas because
we have access to great experts.
At this stage, I come to the common denomina-
tor of all the subjects raised today , i.e. the
question of the training young lawyers and
preparing them to work in the field of arbitra-
tion and to promote arbitration as such. If we
take into account all the tools that we have to
promote arbitration and introduce it to a wider
audience, this is one of the truly important
ones. If arbitration becomes part of a university
Arbitration e-Review No. 3 (Summer) 2011 | p. 55
SUMMARY
or internship curriculum, the awareness of
lawyers concerning the advantages of arbitra-
tion will increase.
Let me finish here with the hope that our meet-
ing has raised certain issues, of which there are
plenty, and as Professor Rajski said, each dis-
cussion could become a separate conference. I
think that it would be worth continuing such
discussions, and I address this hope to our host,
Ms. Gessel. I hereby formally close the debate
and give the floor to Ms. Gessel.
Dr. Beata Gessel-Kalinowska vel Kalisz: La-
dies and gentleman, I wish to thank you for
your participation in the debate and I also wish
to thank the participants who are watching the
live coverage via the Internet. The original aim
of the debate was to raise certain issues which
are important in arbitration circles as a whole
and to start up a long-term discussion. Thanks
to your participation, we have achieved our
goal and, as Professor Rajski suggested, we
now have to “sort out” the problems which, I
hope, will be the subject of our subsequent
meetings. Thank you again and let me now in-
vite you to our gala dinner.