Abstract

This publication presents a position according to which in the Polish law: a) absence of a master contract (no declarations of will) does not necessarily automatically mean that no valid and effective arbitral clause has been agreed; b) consent for arbitration may be assumed if acquisition of the main right related to an arbitration clause is claimed by a defendant apparent legal successor even though the premises for the validity and effectiveness of a legal transaction underlying acquisition of this right have not been fulfilled; c) save representation issue, there are no obstacles to assume that competence of the arbitral tribunal has been established by filing a statement of claims to the tribunal and filing a reply thereto without challenging its competence, if interpretation of the declarations of will of the parties does not leave any doubts as to the submission of the dispute to the competence of the arbitral tribunal; d) assuming the substantive (as opposed to procedural) character of the arbitral covenant and basing on the severability doctrine it may be argued that no transfer of substantive rights does not exclude transfer of rights specified in the arbitral covenant, unless the interpretation of the will of the parties indicates that their intention was no transfer of (access to) the arbitral covenant if the rights under the main contract have not been transferred; e) filing a statement of claims to a common court despite existence of the arbitral covenant and the defendant not objecting to such a covenant may or may not constitute an agreement to terminate the arbitral covenant, depending on the circumstances of the case; f) the arbitral tribunal may by itself adjudicate on its competence also when a common court previously effectively rejected the statement of claims because of the arbitral covenant; g) admissibility of arbitral tribunal’s ex officio examination of its competence is excluded beyond the issue of arbitrability of the dispute and existence of common court’s decision indicating absence of arbitral tribunal’s competence, unless the procedural rules of the arbitral tribunal or the will of the parties expressly set forth otherwise; h) an effective decision of a common court as to arbitral tribunal’s incompetence obliges the tribunal to declare its incompetence and discontinue the proceedings, unless the plaintiff demonstrates that the arbitral tribunal’s award will be enforced/will cause legal effects in a third country in the legal system of which a ruling of a common court is not recognized, which would prohibit proceedings to be conducted before the arbitral tribunal; i) appointment of an arbiter and active participation in the arbitral proceedings does not deprive the party of its right to raise the charge of the absence of the arbitral covenant in the appellate proceedings to revoke the arbitral award if it was timely raised in the course of the arbitral proceedings; j) not raising the charge of incompetence during the arbitral proceedings, as well as no motion submitted under Art. 1180 §3 of the Code of Civil Procedure (and possibly an appeal), results in the loss of the right to raise the charge of the absence of the arbitral covenant (exceeding its scope) in a later appeal to revoke the arbitral award if the party fails to raise the charge of incompetence of the arbitral tribunal on time but actively takes part in the proceedings and presents the defense based on facts. The situation is different when the defendant does not take part in the arbitration proceedings at all; k) contrary to the literal wording of the mandatory Art. 1180 §3 of the Code of Civil Procedure only the party that raised the charge of incompetence is entitled to submit the motion referred to therein; l) if the claim is changed/broadened during the hearing there are no grounds for assuming that failure to raise the charge of incompetence of the arbitral tribunal at the same hearing automatically results in a statute of repose.