Abstrakt

Introduction Starting from 17 October 20051, parties to arbitral proceedings to which Polish law applies as lex arbitri may request the interim protection both before domestic courts and before the arbitral tribunal. The amendment to the Code of Civil Procedure (CCP) that entered into force on that date implemented article 17 of the 1985 UNCITRAL Model Law, thus authorising arbitral tribunals to order interim protection. Under the previous regulation it happened occasionally that arbitral tribunals granted interim relief. However, the tribunal’s interim orders were commonly considered non-binding. The party who was granted such interim protection could not effectively request the Polish judicial bodies to enforce the tribunal’s order2.  Under the current regulation the party seeking interim protection may choose whether to apply to a domestic court or to the arbitral tribunal3. Simultaneous applications are also possible4. However, the existing parallel competences of domestic courts and ­arbitral 25tribunals lead to a fundamental question about the effectiveness of any of the above procedures, meaning: (i) the time needed to order and enforce the interim protection and (ii) the available scope of the interim protection, the latter being primarily determined by the type of interim measure granted. While the discussion about the advantages of one procedure over the other is far more complex, an important factor in favour of the domestic courts is their authority to order interim protection in ex parte proceedings, i.e. without prior notice given to the party against whom such protection is sought5. This “surprise effect” may play a crucial role for the party’s interests. This is particularly true when the opposing party is undertaking actions that may frustrate the practical effects of the future award – for instance disposing of its most valuable assets, distributing fake products or disseminating untrue information about a competitor. Without a timely interim measure, any subsequent protection could simply become moot.  The dominant, if not unanimous, view of legal doctrine in Poland denies arbitral tribunals the authority to issue ex parte interim measures. The justification given in support of this view is twofold. First, article 1183 CCP requires that both parties to arbitral proceedings be treated equally. Second, article 1189 § 3 CCP orders that any submission made by a party to the tribunal be served upon the other party.  In this article the authors will attempt to address the question of whether the above-referenced provisions of the Code of Civil Procedure do in fact preclude arbitral tribunals from ordering ex parte interim measures. Further,...