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( Source of the document: ICC Digital Library )
A. The Contracting State and the New York Convention
1. Name of Contracting State (also specify jurisdiction(s), if relevant)
Republic of Poland.
2. Date of entry into force of the New York Convention
1 January 1962.
(Source: Dz. U. 1962 No. 9, item 41.)
3. Has any reservation been made under Art. I(3) of the New York Convention regarding:
The New York Convention was originally signed subject to a reservation regarding reciprocity. Poland never ratified this reservation and it is not considered binding in practice.
(b) commercial relationships?
The New York Convention was originally signed subject to a reservation limiting its application to commercial relationships. Poland never ratified this reservation and it is not considered binding in practice.
4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?
B. National sources of law
5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?
(i) New York Convention; (ii) provisions of the Civil Procedure Code (CPC), Part V, Chapter VIII, regarding recognition and enforcement of arbitral awards and settlements reached before arbitral tribunals (according to Art. 91, para. 2, of the Polish Constitution, the provisions of the CPC are applicable only if they do not contradict those of the New York Convention); (iii) provisions of bilateral treaties to which Poland is a party.
C. Limitation periods (time limits)
(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?
There is no limitation period for the commencement of legal proceedings for recognition of foreign awards. However, there is a limitation period for enforcement.
(b) If yes, what is the applicable limitation period (time limit) and when does it start running?
The limitation period applicable to the enforcement of foreign awards is 10 years from the date of delivery of the award.
(Source: Civil Code, Art. 125).
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
As there are no provisions in the CPC specifying which court has jurisdiction over the recognition and enforcement of foreign arbitral awards, the provisions regarding recognition and enforcement of foreign judgments may apply by analogy to recognition and enforcement of foreign arbitral awards.
According to this approach, jurisdiction regarding recognition of foreign arbitral awards is vested in: (i) the Regional Court (Sad Okregowy) that would have had jurisdiction if the parties had not agreed to submit their dispute to arbitration, or (ii) the Regional Court for the relevant districts if jurisdiction over the subject matter lay with the District Court (Sad Rejonowy), or (iii) if neither of the above criteria applies, the application should be filed with the Regional Court in Warsaw.
For the enforcement of foreign arbitral awards, territorial jurisdiction is vested in the Regional Court with jurisdiction over the debtor's domicile or, if a company, registered office. If there is no such court, a court relevant for the execution proceedings should hear in the case.
(Source: CPC, Arts. 11481 para. 1, 11511 para. 1 and 2, 1158 and 1215 para. 1.)
8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
Inter partes proceedings.
(Source: CPC, Art. 1215.)
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
(Source: CPC, Art. 1214 para. 1 and Art. 795 para. 1 combined with Art. 1214 para. 2.)
(b) How many levels of appeal or recourse are available against this decision?
An appeal against a decision on the recognition or enforcement of a foreign award may be made within one week of receiving the first instance decision. It must be addressed to the Court of Appeal (Sad Apelacyjny) via the first instance court. The first instance court may reverse its own decision if the complaint is obviously justified or bears upon the validity of the proceedings for recognition or enforcement of the award. The court decides on the appeal in a closed session.
(Sources: CPC, Art. 397 para. 1 combined with Art. 13 para. 2; Supreme Court Decision of 24 June 2009, I CSK 538/08, published in OSNC-ZD 2009/4/11.)
Since 25 Sept. 2010, an appeal to overturn the appellate court's decision (skarga kasacyjna) regarding recognition and enforcement of a foreign award may be filed with the Supreme Court. This procedure also applies to the resumption of the proceedings and/or statement of nonconformity with the law filed before the court with material and geographical jurisdiction.
(Source: CPC, Art. 1215 para. 3, Art. 1214 para. 1 and Art. 795 para. 1 combined with Art. 1214 para. 2, Arts. 394-397).
11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?
Once the decision to grant enforcement of the award becomes final and binding and the enforcement order is affixed upon it. Together, the award and the court enforcement order form the basis upon which an enforcement action may be initiated. The decision on enforcement first needs to be notified to the other party(ies).
(Source: CPC, Arts. 776 and 777 para. 1 point 2.)
E. Evidence required
(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)?
The request for recognition and enforcement must be accompanied by (i) the original award or a copy certified by the arbitral tribunal, (ii) the original arbitration agreement or a certified copy prepared by a Polish public notary or, failing that, an appostillized copy.
The filing of an original or certified copy of the arbitration agreement is a formal requirement and pre-condition to initiating enforcement proceedings. It is not sufficient to request the court to order a party and/or the arbitrator(s) to provide the arbitration agreement instead of actually providing it, unless the party making such a request proves beyond reasonable doubt that the agreement is in the possession of either the arbitrator(s) or party(ies) concerned.
(Sources: CPC, Art. 1213; Notary Law of 14 Feb. 1991 (Ustawa z dnia 14 lutego 1994 roku Prawo o notariacie, Dz. U. 2008 No. 189, item 1158), Art. 96 point 2; Supreme Court Resolution of 6 June 1977, signature II CZ 45/77 (published in OSNC 3/1978); Supreme Court Resolution of 3 Oct. 2004 (Case File No. III CK 510/03).)
(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?
The award should be provided in full. As for the arbitration agreement, only the arbitration clause/agreement needs to be supplied, although it is advisable to provide the entire document containing the arbitration clause whenever the arbitration clause forms a part of another document. Where an arbitration agreement is concluded by an exchange of letters or telegrams, all documents forming the agreement should be provided.
(c) Are originals or duly certified copies required?
Either originals or certified copies.
(d) How many originals or duly certified copies are required?
One original or certified copy is required, plus one copy for each of the other parties.
(Source: CPC, Arts. 13 para. 2 and 128.)
(e) Does the authority or court keep the originals that are filed?
Yes. However, a party may request their return. The originals may be returned if certified copies are filed in their place. However, the head of the court division (przewodniczacy wydzialu), whose decision this is, may release the applicant from the obligation to file the copies.
(Source: Minister of Justice, Ordinance on Statute of Public Courts, 23 Feb. 2007 (Rozporzadzenie Ministra Sprawiedliwosci z dnia 23 lutego 2007 roku Regulamin urzedowania sadów powszechnych, Dz. U. No. 38, item 249), para. 90.)
(a) Is it necessary to provide a translation of the documents supplied?
If any document supplied is not in Polish, a certified translation of the document is required.
(Source: CPC, Art. 1213.)
(b) If yes, into what language?
(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?
Translations must be prepared by a sworn translator, i.e. a translator listed as a court expert by any regional court (not necessarily the regional court where recognition or enforcement is sought).
(Source: Law on Profession of Sworn Translator, 25 Nov. 2004 (Ustawa z dnia 25 listopada 2004 roku o zawodzie tlumacza przysieglego, Dz. U. No. 273, item 2702), Art. 13).
(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?
The full document must be translated.
F. Stay of enforcement
(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?
A stay of the proceedings for recognition and enforcement may be granted if an application to set aside or suspend a foreign award before the competent authority has been made. Such a stay is not compulsory.
It is also possible for the court before which the application for recognition or enforcement of the award was filed to adjourn the proceedings, either of its own motion or at a party's request. Unlike a stay of proceedings, which entails certain legal consequences for the parties, the adjournment of proceedings is merely an administrative measure.
(Source: CPC, Arts. 177 para. 1 point 1 and 1216.)
(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?
A court shall suspend the proceedings of its own motion (i) in the event of the death of a party or its statutory representative, loss by a party or its statutory representative of their capacity to act in the proceedings, loss of the capacity to be a party in civil proceedings or loss of the status of statutory representative; (ii) in the event of defects in the composition of a governing body of a party preventing it from acting; (iii) if communication between a party or its statutory representative and the seat of the court is impossible due to extraordinary events; (iv) if the proceedings relate to assets subject to bankruptcy if bankruptcy with possibility of settlement has been declared and the party has lost the right to manage the bankrupt's estate, or 'regular' bankruptcy has been declared.
(Source: CPC, Art. 174 para. 1).
A court may also suspend the proceedings of its own motion (i) if the decision depends on the outcome of other pending civil proceedings; (ii) if a third party joins the proceedings claiming that it should be the applicant in those proceedings; (iii) if the decision depends on the outcome of other administrative proceedings; (iv) if there are criminal or disciplinary proceedings that may affect pending civil proceedings; (v) in the absence of both parties from the trial, unless otherwise provided by law, or if the applicant is absent and did not request that the case be heard and the respondent did not file a motion to hear the case; (vi) if an incorrect address is given for the applicant or the respondent's address is not provided by the applicant within the applicable time limit, or the applicant does not abide by any particular order.
(Source: CPC, Art. 177 para. 1.)
Finally, a court may suspend the proceedings at the joint request of the parties.
(Source: CPC, Art. 178.)
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
The granting of a stay of legal proceedings on the basis of Art. 177 para. 1 point 1 of the CPC is not conditional on the provision of security.
If an application has been made to set aside the award, the court may adjourn the proceedings for recognition or enforcement. The court may require a respondent to provide an appropriate security if requested by the claimant.
(Source: CPC, Art. 1216.)
(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?
The court hearings are public and the court's decision is pronounced publicly (the contents of the court's decision are subject to the Act on Access to Public Information and Article 61 of the Polish Constitution, giving the public access to the final court's decision).
Access to the file is limited to the parties to the proceedings and those entities that show evidence of a legal interest in obtaining such access. The head of the court's division may also grant other persons (e.g. journalists, academics) access to all or part of the file. The parties to the procedure are not notified of such access and cannot object thereto.
A party may apply for a closed session if able to provide sufficient justification for such an exception.
(Sources: CPC, Arts. 148, 153, 326 para. 2 and 1215 para. 1; Voivodship Administrative Court in Warsaw judgment of 25 May 2004 (Case File No. II SAB/Wa 58/04).)
(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?
In general, court hearings are not confidential. However, when ruling on the recognition of arbitral awards that cannot be enforced, the court does so in a closed session. Any party to the proceedings may request that the hearings be kept confidential.
(Source: CPC, Arts. 1214 para. 1 and 1215 para. 1.)
(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business or State secrets)?
No, judgments on recognition and enforcement are not published.
H. Other issues
16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?
Recognition and enforcement of partial foreign awards may be obtained under the same conditions as are applicable to recognition or enforcement of arbitral awards in general.
(Source: CPC, Arts. 317 para. 1, 776 and 777.)
Decisions ordering interim measures are also enforceable under the same conditions.
(Source: CPC, Art. 1181 para. 3.)
17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?
It is possible to obtain the recognition and enforcement of non-monetary relief contained in foreign awards, to which the procedure normally applicable to recognition and enforcement of foreign awards will apply.
18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?
It is possible to obtain recognition and enforcement of only part of the relief granted in a foreign award.
(Source: CPC, Art. 1212 para. 1.)
19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?
It cannot be excluded that an award that has been set aside as mentioned in Art. V(1)(e) could be recognized and enforced in Poland.
20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?
A court fee must be paid when filing a request for recognition or enforcement of a foreign award. That fee is PLN 300 for the recognition and enforcement of the award and PLN 60 for recourse against the court's decision on recognition or enforcement of a foreign award.
(Source: Law on Court Fees in Civil Proceedings, 28 July 2005, (Ustawa z dnia 28 lipca 2005 roku o kosztach sadowych w sprawach cywilnych, Dz. U. No. 167, item 1398), Arts. 19 para. 3 point 2 and 24 para. 1.)
Przemyslaw P. Krzywosz
Piotr Nowaczyk, Pawel Pietkiewicz