THE AUTHORS:
Olga Marcinkowska, Associate at the international dispute resolution boutique Queritius
Agata Zwolankiewicz, Associate in the dispute resolution department at Linklaters
This article provides an overview of developments in the fields of commercial and investment arbitration in Poland. We have also provided highlights of arbitration events in 2022.
Developments in Commercial Arbitration
On 1 January 2022, the Rules of the Court of Arbitration at the Polish Chamber of Commerce in Warsaw in Disputes Regarding Resolutions (the “Resolution Disputes Rules“) came into force. They deal with disputes regarding the annulment or invalidation of a resolution adopted by the general meeting of a limited liability company or a joint-stock company, which lawfully should be heard by a court of arbitration.
The Resolution Disputes Rules specifically address
- the initiation of the resolution dispute and appointment of the arbitrators;
- accession of participants to the proceedings;
- the dispositive and adversarial nature of the resolution dispute; and
- multiplicity of resolution disputes. As for matters which are not directly regulated by the Resolution Disputes Rules, the Arbitration Rules of the Court of Arbitration at the Polish Chamber of Commerce shall apply.
The Resolution Disputes Rules were introduced as a response to the recent amendments to the Polish Code of Civil Procedure (which entered into force on 8 September 2019) which confirmed the arbitrability of resolution disputes. Up to this change, the question whether resolution disputes can be resolved by means of arbitration remained unanswered and there were differing approaches.
The Lewiatan Court of Arbitration has introduced a similar arrangement and included Supplementary Regulations for Proceedings in Corporate Disputes as Appendix VI to the Rules of the Court of Arbitration at the Confederation Lewiatan in July 2020.
Developments in Investment Arbitration
On 14 November 2022, the President of Poland, signed an act terminating the Energy Charter Treaty (“ECT“) and the Energy Charter Protocol on Energy Efficiency and Related Environmental Aspects. The act entered into force 14 days after the date of its publication.
In the written motives to the draft law, Poland has considered the withdrawal from the ECT to be necessary due to the following reasons:
- incompatibility of the dispute settlement clause (Article 26 of the ECT) with EU law;
- high costs of settling disputes with investors under the ECT (withdrawal from the ECT would allow for reducing the financial burdens of the State);
- Poland has also underlined that the energy transformation (which has accelerated) would be impaired if Poland were to continue with “the need to pay high compensation on the basis of vague treaty standards to fossil fuel investors“;
- the ECT has no provisions confirming the State’s right to regulate (contrary to e.g., CETA) which renders the Fair and Equitable Treatment clause and arbitral tribunals’ approach unpredictable.
The media has reported that the decision to withdraw from the ECT came as a surprise as it went largely unnoticed (despite green activists who have been campaigning for years against the treaty). Poland’s withdrawal was part of the bigger exit from the ECT in the European Union. Spain, the Netherlands, France, and Germany followed in Poland’s footsteps and announced their intention to exit from the ECT. Italy withdrew from the ECT in 2016.
Arbitration Events
After the downtime in in-person gatherings, 2022 brought numerous arbitration events:
- 26-27 May – 6TH EDITION OF THE CONFERENCE DISPUTE RESOLUTION IN M&A TRANSACTIONS. The first edition of the conference since the 2020 outbreak of the COVID-19 pandemic gathered over 200 attendees. Special welcoming remarks were sent from the President of the Ukrainian Arbitration Association, Olena Perepelynska. This year’s panels and keynote speeches included topics such as consolidation of proceedings, principles of equity, multiparty multi-contract arbitrations, and energy transition disputes.
- 27 May – ICC YAF: Champagne clauses and what comes next. The conference was followed by the ICC Young Arbitration Forum two-part event: an interview with Claudia Salomon, President of the ICC IAC and a panel discussion with speakers from different backgrounds exchanging thoughts on working with clients at different stages in the life-cycle of a dispute resolution clause.
- May & September 2022 – Arbitration Lunch Match – a Polish community counterpart of the worldwide initiative meant for bringing together female arbitration practitioners in the form of a blind date.
- June 2022 – The Polish equivalent of the Very Young Arbitration Practitioners network launched its initiative with the very first introductory meeting with the purpose to listen to the voices of the youngest generation entering the arbitration community in order to implement its mission to bridge the gap between the newbies and the more experienced colleagues.
- 6 December 2022 – ICC Charity Christmas Dinner: came back strongly as the very first edition organised after the outbreak of the COVID-19 pandemic and Russian invasion of Ukraine. A charity auction, heated as usually, was organised in order to raise funds for the Ocalenie Foundation, which offers tuition assistance and educational and cultural excursions for refugee children.
- 7 December 2022 – Delos-Y breakfast: an interactive breakfast gathering speakers –mentors and moderators dispersed across Central and Eastern Europe holding discussions revolving around challenges and new trends in working with witnesses and building a professional career in the CEE.
Olga Marcinkowska is an Associate at the international dispute resolution boutique Queritius, Poland and a trainee advocate with the Warsaw Bar Association. Olga is a member of the Poland VYAP Founding Committee and a mentee in the Moot Alumni Association Mentor-Mentee Programme.
Agata Zwolankiewicz is an Associate in the Dispute Resolution department at Linklaters Warsaw. She holds an LL.M. with concentration in international investment and trade law from the University of Ottawa. Agata is a trainee advocate with the Warsaw Bar Association, and a member of the Poland VYAP Founding Committee.
