• 2017

  • Maciej Durbas, Rafał Kos

    The European Arbitration Review 2018 – Poland

    Global Arbitration Review

    In 2017 there were two major changes in the Polish arbitration landscape. Firstly, a new set of rules for consumer arbitration was introduced. These changes involve the form of an arbitration agreement as well as grounds for challenging an arbitral award and questioning the recognition or enforcement of an arbitral award. The amendments are aimed at reinforcing consumers’ rights in arbitration.

  • Agnieszka Trzaska, Barbara Jelonek-Jarco

    Have we already concluded an agreement?

    International Law Office

    Parties that negotiate a contract for sale when they are based in different countries are not always aware of the legal nature of their negotiations and the possible legal consequences. However, the conclusion of a contract in the course of negotiations can be regulated differently depending on the jurisdiction and legal system.

  • Grzegorz Pobożniak, Wojciech Wandzel

    Shareholder activism in Poland – an overview

    International Law Office

    Shareholder activism has grown in popularity in recent decades (particularly in the United States) due to leading law firms specialising in the implementation of available shareholder activism strategies, and the role of hedge funds and related services constitutes a significant niche in the legal services market. This update will examine whether shareholder activism can be applied under Polish legislation.

  • Maciej Durbas, Rafał Kos

    Agent claiming commission for football transfer caught offside

    International Law Office

    A recent Supreme Court case found that an arbitral tribunal did not violate public policy by reducing an agent’s claim for commission against a football club by approximately 60%, even though the commission was for the transfer of Robert Lewandowski, one of the world’s best footballers. The decision underlines that football agents, in the view of the court, should not claim more than 30% of what is due for players themselves if they want to avoid their claims being dismissed as excessive and an abuse of rights.

  • Maciej Truszkiewicz, Wojciech Wandzel

    The Perfect Arbitration Clause?

    American Bar Association

    Is there such a thing as a perfect arbitration clause? Commercial lawyers have been struggling with this question for decades. In reality, a perfect arbitration clause does not exist because every contract involves different needs and circumstances, many of which do not surface until long after the clause has been drafted. Indeed, the difficulty of identifying one “ideal” arbitration clause demonstrates one of the key advantages of arbitration: It is a form of dispute resolution that adapts to different kinds of disputes and surrounding circumstances.

  • Grzegorz Pobożniak, Kamil Zawicki

    Protection of shareholders against unfavourable share exchange rate in capital companies merger process

    International Law Office

    By assumption, the process of merging capital companies is advantageous from the point of view of the merging companies and their shareholders. However, sometimes, as a result of the merger, a shareholder may receive fewer shares in the acquiring company than he or she should have. Therefore, the merger is disadvantageous from an economic and corporate power point of view. In such a context, the question that arises is whether the protection of shareholders’ interests against an unfavourable share exchange rate is possible under Polish law and, if so, how it can be accomplished.

  • Grzegorz Pobożniak, Kamil Zawicki

    Three’s a crowd? Third-party arbitration funding

    International Law Office

    Third-party arbitration funding can benefit both under-resourced growing businesses as well as established and profitable companies, allowing them to cover the legal costs of potentially complex proceedings. However, companies should be aware of its potential risks and downsides, such as concerns over confidentiality and privilege of sensitive information, the funder’s self-interest in returning a profit on its investment and potential conflicts of interest between funders and arbitrators. A number of jurisdictions and arbitration institutions are considering introducing external regulation of third-party arbitration funding.

  • Andrzej Kubas, Dominik Gałkowski, Kamil Zawicki, Rafał Kos

    International Arbitration – Poland Law & Practice

    Chambers Practice Guides

    Generally speaking, in Poland arbitration is becoming an increasingly popular method of dispute resolution as evidenced by recent research in that field. According to a study prepared by the European Commission entitled ‘Business-to-Business Alternative Dispute Resolution in the EU’, based on 500 interviews with Polish businesspeople, 15% of them have already used arbitration, which gave Poland second place, tied with Italy, in the whole of the European Union. According to the latest research from 2015, 75% of businesses which were already engaged in arbitration expressed their willingness to use this method of dispute resolution in the future.

  • Maciej Durbas, Rafał Kos

    Supreme Court confirms that agent’s email authorisation is necessary to enter into arbitration agreement

    International Law Office

    International contracts are often concluded via email. This practice requires a more liberal approach to the form of arbitration agreements under the New York Convention. However, the convention is silent on the form in which an agent’s authorisation (ie, power of attorney) to enter into an arbitration agreement must be made. A recent Supreme Court decision confirms that under Polish law, such authorisation is required and should be made at least in an equal manner to that required to conclude the agreement itself (ie, at least by way of an electronic document). This decision also shows that the issue of an agent’s authorisation to enter into an arbitration agreement is problematic, but not only in Poland.

  • Agnieszka Trzaska, Barbara Jelonek-Jarco

    Non-disclosure agreements: an effective tool during negotiations

    International Law Office

    To a large extent, the security and success of a transaction depends on the correct execution of the process preceding its finalisation. At the pre-contractual stage, a non-disclosure agreement (NDA) is the first agreement that regulates the mutual relationships of the parties involved in the negotiations. The conclusion of such an agreement: facilitates negotiations; reinforces the parties’ trust; and allows for the protection of information which they consider to be significant.

  • Dominik Gałkowski, Konrad Trzaskowski

    Corporate Recovery & Insolvency 2017 – Poland

    The International Comparative Legal Guide

    Polish law regulations on bankruptcy and restructuring were substantially altered due to changes which entered into force on 1st January 2016. The fundamental functions of the new regulation are: realising a ‘new chance’ policy, i.e. guaranteeing an opportunity for a new start to entrepreneurs whose enterprises failed in connection with deteriorating economic conditions; separating restructuring procedures, aimed at preventing a debtor’s enterprise from reviling (or stigmatising) bankruptcy procedures; examination of the effectiveness of the law in force heretofore has demonstrated that the very declaration of bankruptcy in the majority of cases precluded any restoration of a debtor’s enterprise due to the negative attitude of the economic environment (creditors/counterparties) towards an entrepreneur who was declared bankrupt.

  • Paweł Sikora

    Limitations on challenging resolutions at shareholder meetings for company mergers

    International Law Office

    The company merger procedure is regulated by the Commercial Companies Code, which provides for the adoption of shareholder resolutions during company mergers. Similar to other shareholder resolutions during general meetings, the resolution may be challenged according to the principles set out in the code. However, due to the specificity of the merger process and the necessity of recognising the primacy of a company’s interest over that of a shareholder, certain exceptions to the general principles apply.

  • Rafał Kos

    Ewolucja poglądów niemieckiej doktryny i orzecznictwa w zakresie oceny zdatności arbitrażowej sporów korporacyjnych i jej znaczenie dla polskiej praktyki arbitrażowej (The evolution of the German doctrine and case-law in the scope of arbitrability of corporate disputes and its significance for Polish arbitration practice)

    Corporate Disputes In Arbitration Practice – Polish and German Perspective

    De lege lata no changes in the Polish law are necessary for the recognition of the arbitrability of resolution-related disputes, similarly as was the case in German law which today allows for an effective practice of corporate arbitration. The real obstacle for Polish arbitration practice in resolution-related disputes is the lack of model rules of proceeding before a court of arbitration in the case of a multi-entity dispute arising against a company relationship, which shareholders and the company alike could refer to. This obstacle would be eliminated by offering parties to arbitral proceedings such a “model law” in the scope of proceedings before the court in the case of resolution-related disputes which would guarantee that the standard of a shareholder’s constitutional access to justice is always complied with in such proceedings. This is, nota bene, what the German DIS has done.

  • Kuba Gąsiorowski, Wojciech Wandzel

    Enforcement Issues in the Conduct of Arbitration and National Laws in International Arbitration

    Czech (&Central European) Yearbook of Arbitration 2017

    Arbitration is a process and its product is an arbitral award that can be a substitute for a state court judgment in the most important aspect – enforceability. As a result, both arbitral tribunals and counsels should undertake necessary steps to ensure the future enforceability of the award. This requires tailoring the arbitral process with enforcement issues in mind and conducting the arbitration proceedings with a flexible and knowledgeable navigation among several different legal systems that will only come into play during enforcement as provided by the New York Convention.

  • Kamil Zawicki, Magdalena Krawczyk, Marek Malciak

    Poland – the Supreme Court Judgements

    Czech (&Central European) Yearbook of Arbitration 2017

    An arbitral award is equal to the judgment of the state court after being recognised or enforced, therefore, it has the same binding force and the authority of res judicata as the final and enforceable judgment of the state court. Both the state courts and the parties are bound by such arbitral award, so it should be taken into account when deciding on subsequent disputes between the same parties. What is more, if an award deals with an issue of a precedential nature, that issue cannot be re-litigated in further proceedings.

  • Kamil Zawicki, Paweł Sikora

    Share purchase agreement forms for share transfers concluded in another state

    International Law Office

    Under Article 180 of the Commercial Companies Code, the effective transfer of share ownership requires a transfer ownership agreement to be concluded in writing with a signature certified by a notary. This is an absolute requirement and does not depend on the agreement’s value or the percentage of a company’s share capital that is subject to the transaction (eg, as is the case in Lithuanian law). However, not all legal regulations in force in EU member states require adherence to a special form – namely, a written form with signatures certified by a notary. The question that therefore arises is whether – in the event that the agreement is concluded under the legislation of a state that sets less restrictive requirements regarding the agreement form for the purchase of shares in a limited liability company with a registered office in Poland – adhering to a less restrictive form will suffice for the effective transfer of the legal title in the shares being disposed of.

  • Maciej Durbas, Rafał Kos

    Unfair arbitration clause declared invalid

    International Law Office

    Mass contracts are usually drafted favourably only for the stronger party in the contractual relationship. This particularly pertains to dispute resolution (eg, its method or place). In its October 27 2016 judgment, the Supreme Court ruled strongly in favour of the weaker parties in a contract and found that an arbitration clause in the contract between a Polish franchisee and a Dutch franchisor that opted for New York (where the seat of the Dutch company’s parent company was located) as the place of arbitration was invalid, as it was grossly unfair to the Polish party.

  • Paweł Sikora, Wojciech Wandzel

    Litigation & Dispute Resolution 2017 – Poland

    The International Comparative Legal Guide

    The legal system in Poland is a continental law system (statutory law) whereas the source of legal standards is legal acts enacted by legislative bodies. One of such acts is the Code of Civil Procedure (Polish abbreviation: ‘k.p.c.’; English abbreviation ‘CCP’) which contains provisions regulating the civil procedure. The civil courts system in Poland consist of three tiers: the first level comprises District Courts, which, in principle, are courts of first instance; the second level comprises Regional Courts, which are courts of second instance in cases heard in first instance by the District Courts, and courts of first instance in cases enumerated in the provisions of the law; the third level consists of Courts of Appeal, which are courts of second instance in cases heard in first instance by Regional Courts. Judgments of courts of second instance may sometimes be challenged with cassation complaints before the Supreme Court. Some categories of cases are, however, reserved for the competence of specific courts, e.g. the Regional Court in Warsaw is the court competent for competition and consumer protection.

  • Maciej Truszkiewicz, Wojciech Wandzel

    Anticipating Crisis: Preventing Information Leaks

    American Bar Association

    “Better safe than sorry!” Despite the fact that this proverb is well known, lawyers often fail to apply this rule with respect to data protection. They seem to forget that information is the most valuable asset and that their law firms are susceptible to cyberattacks. Therefore, lawyers should be adequately prepared to secure data and address information leakage incidents. The first step of this preparation is crisis anticipation, which helps avoid the crisis in the first place and also gives necessary confidence to react effectively.

  • Kuba Gąsiorowski, Maciej Durbas

    Important changes regarding consumer arbitration introduced

    International Law Office

    Significant changes to the regulation of arbitration in Poland were introduced on January 10 2017 through the Act on Out of Court Resolution of Consumer Disputes, in line with the EU Alternative Dispute Resolution Directive (2013/11/EU). The changes will have a profound effect on business practice and lawyers nationwide, modifying a wide range of rules – from the form of an arbitration agreement to the preconditions for the enforcement of awards. However, the act aims not only to support consumers in arbitration, but also to provide a new impetus for the development and expansion of arbitration in Poland.

  • Magdalena Krawczyk

    Nowe technologie w służbie Temidy (New Technologies In Service of Themis )

    Młoda Palestra dated 25.01.2017

    Assuming that the principal goal of people involved in creating the law regulating the functioning of the judiciary is to facilitate citizens’ access to justice and expedite the proceedings, one should expect that any systemic reforms will lead to streamlining the system of the administration of justice. A neutral observer, however, has had many an opportunity to see that each amendment aimed at introducing progressive innovations into the court room results in a frontal confrontation between advocates and opponents of innovative solutions. Are these fears substantiated? Or perhaps all the reservations are rather rooted in individual barriers stemming from the fear of abandoning one’s habits?

  • Kamil Zawicki, Rafał Kos

    The European Arbitration Review 2017 – Poland

    Global Arbitration Review

    Arbitration is becoming an increasingly popular method of dispute resolution in Poland as shown by recent research in that field. According to a study prepared by the European Commission entitled ‘Business-to-Business Alternative Dispute Resolution in The EU’, based on 500 interviews with Polish businesspeople, 15 per cent of them have already used arbitration, which ranked Poland second place in the whole of the European Union. According to the latest research from 2015, 75 per cent of businesses that were already engaged in arbitration expressed their willingness to use this method of dispute resolution in the future.

  • Agnieszka Trzaska, Rafał Kos

    Class & Group Actions 2017 – Poland

    The International Comparative Legal Guide

    The Act of 17 December 2009 on Pursuing Claims in Group Proceedings (Journal of Laws 2010, No. 7, item 44, hereinafter referred to as: the “Act”), in force as of 19 July 2010, introduced a new mechanism for the collective pursuit of claims/group proceedings in the Polish legal system. In principle, the Act is of a purely procedural nature – it introduces no changes to the substantive legal basis for claims or to the principles of a defendant’s liability.

  • 2016

  • Kamil Zawicki, Kuba Gąsiorowski, Magdalena Krzemińska

    Poland – the Supreme Court Judgments

    Czech (&Central European) Yearbook of Arbitration 2016

    Parties may agree for a multi-tier dispute resolution process to be administered by a Contract Administrator. However, when the contract is fully performed, in result of which the Contract Administrator is relieved of his duties, there is no competent (contractually selected by the parties) person through which parties may start the dispute resolution process. This also concerns the initiation of arbitration as the final stage of the multi-tier dispute resolution procedure.

  • Andrzej Kubas, Maciej Durbas

    Conditional Effectiveness of the Arbitration Agreement

    Czech (&Central European) Yearbook of Arbitration 2016

    This paper concerns two frequent situations in international commercial arbitration, i.e. concluding a conditional arbitration agreement and implementing an arbitration agreement in the conditional mail contract. The first part concerns the possibility of making the arbitration agreement conditional (from the procedural and substantive point of view) and also includes practical examples of such conditional arbitration clauses. The second part concerns the effect that a conditional main agreement has on the arbitration clause contained therein. The third part discusses the effects of conditional arbitration agreements, also from the procedural and substantive perspective.

  • Maciej Durbas, Rafał Kos

    Court says no to anti-arbitration injunctions in Poland

    International Law Office - Arbitration & ADR – Poland

    Anti-suit and anti-arbitration injunctions are useful instruments for enabling efficient dispute resolution and preventing forum shopping. However, these instruments – not free from criticism – are not favoured in some legal systems. Poland is one of the jurisdictions that was said to exclude the use of anti-suit and anti-arbitration injunctions. On November 22 2016 the Krakow Court of Appeals (I ACz 1997/16) confirmed that Polish courts cannot prohibit a party from initiating or continuing arbitration.

  • Maciej Durbas, Rafał Kos

    Supreme Court sets high formal requirements for motion to recognise foreign award

    International Law Office - Arbitration & ADR – Poland

    Parties sometimes believe that the recognition and enforcement of an arbitral award is a mere formality, as the substantive proceedings are already over. However, the enforcement stage can prove to be very formal and parties should be careful not to overlook certain requirements of a motion. A May 25 2016 Supreme Court decision (V CSK 257/15) demonstrates the serious consequences that can stem from parties’ errors in this regard. It also shows that Polish courts sometimes require a party to present more than just original or certified copies of the arbitration agreement and the award, as prescribed in Article IV of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958.

  • Maciej Durbas, Rafał Kos

    No declaratory judgment on validity of arbitration agreement

    International Law Office - Arbitration & ADR – Poland

    Legal uncertainty is highly undesirable in business. However, uncertainty is likely in dispute resolution, at least to some extent and especially regarding the outcome. Other factors, such as the forum, costs and conduct of proceedings can and should be determined at the start of a dispute. This also pertains to the issue of whether a case should be heard in arbitration or before a state court.

  • Kuba Gąsiorowski, Maciej Durbas

    Supreme Court decides on res judicata of arbitral awards

    International Law Office - Arbitration & ADR – Poland

    A recent Supreme Court judgment contributed to the debate on the res judicata (binding power) of arbitral awards on other cases. In its January 20 2016 judgment, the Supreme Court clarified to what extent findings made in a previous arbitral award (and not only an operative part of the award deciding on claims) should be taken into account when deciding on subsequent disputes between the same parties. This judgment may constitute an important guide for arbitration practitioners who want to make use of arbitral awards that have already been issued to support their position in future litigation or arbitration in Poland.

  • Rafał Kos

    Konstytucyjny model „prawa do sądu” a deficyt formalizmu w wielopodmiotowym postępowaniu arbitrażowym ze stosunku spółki handlowej (Constitutional Model of ‘Access to Justice’ and the Deficit of Formalism in Multi-entity Arbitration Proceedings from the Commercial Company Relationship)

    Usus Magister Est Optimus. Rozprawy prawnicze ofiarowane Profesorowi Andrzejowi Kubasowi

    Under Article 45 of the Constitution of the Republic of Poland everyone shall have the right to have their case heard without undue delay by a competent, impartial, and independent court. The positively defined right of access to justice is supplemented in Article 77 of the Constitution of the Republic of Poland which establishes a ban on a narrowing interpretation of provisions guaranteeing individuals access to justice – a statute may not block anyone’s access to seek justice for infringement rights or freedoms. Interestingly, both these key provisions of the Constitution of the Republic of Poland enacting ‘access to justice’ do not directly articulate which court is meant – a state court, but perhaps also a private court, which a court of arbitration is.

  • Katarzyna Kostępska

    Pozbawienie prawa prowadzenia działalności gospodarczej w razie niezłożenia w terminie wniosku o ogłoszenie upadłości w świetle znowelizowanego prawa upadłościowego (Depriving of the Right to Engage in Economic Activity in the Event of a Failure to File a Motion for the Declaration of Bankruptcy within the Time limit in Light of the Amended Insolvency Law)

    Usus Magister Est Optimus. Rozprawy prawnicze ofiarowane Profesorowi Andrzejowi Kubasowi

    The security of economic transactions and their participants requires the elimination of entities failing to adhere to fundamental rules and principles and, as such, constituting a threat to the correct functioning of the market. One of the means for accomplishing this goal comes as the possibility, provided by Article 373 et seq. of the Insolvency Law, depriving, by virtue of the ruling of an insolvency court, a specific entity, of the right to conduct their own economic activity or engage in such activity in the frames of a civil partnership and ban them from discharging functions of a member of a supervisory board, member of audit committee, representative or agent of a natural person conducting an economic activity in the scope pertaining to this activity, but also as an agent of a commercial company, a state-owned enterprise, a cooperative, foundation, or association (hereinafter referred jointly as to: “depriving of the right to engage in economic activity”) for ten years.

  • Julita Zawadzka

    Uwagi o czynnościach prawnych mortis causa (Comments on Mortis Causa Acts in Law)

    Usus Magister Est Optimus. Rozprawy prawnicze ofiarowane Profesorowi Andrzejowi Kubasowi

    For many years after the introduction of the Civil Code, the set of issues pertaining to mortis causa acts in law has remained on the margin of interest of civil law practitioners. One of the few who engaged in an analysis of this subject was Professor Andrzej Kubas, who was the first author in Polish legal literature to have embarked on an attempt at presenting a broader characteristics of these acts. In recent years, this situation has undergone a significant change, whereas mortis causa have provided a matter for an interesting debate.

  • Grzegorz Pobożniak

    Problematyka wyłączania wielości ocen i zdeterminowania właściwej do zastosowania normy (art. 527 § 1 i art. 58 § 1 i 2 KC) w przypadku dokonania czynności prawnej naruszającej interes wierzyciela (The Set of Issues of Excluding Multiplicity of Assessments and Determining the Applicable Standard (Article 527 § 1 and Article 58 § 1 and 2 CC) in the Event of Performing an Act in Law Infringing on Creditor Rights)

    Usus Magister Est Optimus. Rozprawy prawnicze ofiarowane Profesorowi Andrzejowi Kubasowi

    The problem of relations between the scope of application of Article 58 § 1 and 2 and Article 527 CC is the subject of multiple and frequently divergent opinions of the case law, issued on the grounds of different factual statuses. This Article constitutes an attempt at determining when an act in law performed to creditors’ detriment is only ‘ineffective’ and when (under which circumstances) it may be found invalid.

  • Barbara Jelonek-Jarco

    Artykuł 5 KC a pewność prawa (Article 5 CC and Legal Certainty)

    Usus Magister Est Optimus. Rozprawy prawnicze ofiarowane Profesorowi Andrzejowi Kubasowi

    The role of general clauses in civil law is of utmost significance. They the legal system to be adjusted to the changing realities – no legislator has ever been able to realise the postulate of completeness of the legal system that would be resistant to the changing socio-economic conditions and, at the same time, in each case adjudicated upon allowing the universal values comprised within the notion of substantive justice to be taken into account.

  • Agnieszka Trzaska

    Powództwo o ustalenie odpowiedzialności w postępowaniu grupowym (Action for the Establishment of Liability in a Class Action)

    Usus Magister Est Optimus. Rozprawy prawnicze ofiarowane Profesorowi Andrzejowi Kubasowi

    In the frames of the class action mechanism, newly introduced into the Polish procedural law system, the Act of 17 December 2010 on Pursuing Claims in Group Proceedings, in force since 19 July 2010, provides for the shaping of a demand of the statement of claims (verba legis: ‘limitation’ of the demand) as a demand for the establishment of liability of the defendant (defendants).

  • Arkadiusz Radwan

    Powództwo o rozwiązanie spółki z o.o. (art. 271 pkt 1 KSH) – skuteczny instrument rozwiązywania konfliktów korporacyjnych czy „słabe ogniwo” w systemie ochrony mniejszości? (An Action for the Dissolution of a Limited Liability Company (Article 271.1 CCC) – an Effective Instrument for Solving Corporate Disputes or a “Weak Link” in the Minority Protection System?)

    Usus Magister Est Optimus. Rozprawy prawnicze ofiarowane Profesorowi Andrzejowi Kubasowi

    The Jubilarian is a Professor Emeritus at the Chair of Civil Law of the Jagiellonian University and an attorney-at-law of established reputation as a consummate and effective litigation expert. In turn, the author of these words focuses on company law in his work. Since the publication is designed as a jubilee contribution, in attempting to define an area that, on the one hand, would emphasise the Jubilarian’s interests while on the other indicate the professional capacity of this paper’s author, the article should naturally focus on several issues revolving around corporate disputes and the way they are settled by state and arbitration courts.

  • Patrycja Wysocka

    Jurysdykcja krajowa w przypadku powództwa pośrednio poszkodowanego akcjonariusza (National Jurisdiction in the Case of an Action Brought Forth by an Indirectly Injured Shareholder)

    Usus Magister Est Optimus. Rozprawy prawnicze ofiarowane Profesorowi Andrzejowi Kubasowi

    The subject of this article is procedural issues related to establishing national jurisdiction in a situation where an action is brought forth by a company shareholder who suffered so-called indirect damages. Assuming the active capacity of such a shareholder (discussed in greater detail below), in the case containing a cross-border element, a problem having both theoretical and practical significance may arise, i.e.: according to what principles and which understanding of prerequisites the national jurisdiction should be established.

  • Grzegorz Pokrzywka, Mirosław Cejmer

    Zarząd spółki z o.o. wobec zaskarżenia uchwały wspólników przez udziałowca (The Management Board of a Limited Liability Company and Challenging Shareholders’ Resolutions by a Shareholder)

    Usus Magister Est Optimus. Rozprawy prawnicze ofiarowane Profesorowi Andrzejowi Kubasowi

    From among a host of problems within the set of issues concerning the operation of capital companies, recently the issue of defectiveness of resolutions of collegiate corporate bodies have begun to feature prominently in the doctrinal debate and in judicature rulings. This discussion focuses first and foremost on attempts at establishing the nature of a civil law sanction affecting the resolutions of shareholders or general meetings which remain in contradiction with the act.

  • Magdalena Jabczuga-Kurek

    Legitymacja czynna członka zbiorowości w nietypowych sprawach o ochronę czci i dobrego imienia (Active Capacity of a Community Member in Atypical Cases for the Protection of Dignity and Good Name)

    Usus Magister Est Optimus. Rozprawy prawnicze ofiarowane Profesorowi Andrzejowi Kubasowi

    Under the disposition of Article 23 CC, the personal interests of a human being, including dignity and good name shall be protected by civil law independent of protection envisaged in other provisions. Claims on the grounds of infringement of personal interests set forth in Article 24 CC materialise only when a charge of infringement of personal rights is raised by a person guaranteed protection under the above-indicated provision. Complications, however, arise in a situation where the incriminated statement does not pertain to a specific single person, but an entire group, collectively defined by the person who committed the infringement.

  • Maciej Durbas

    Przekazanie sprawy sądowi polubownemu przez sąd powszechny (postępowanie remisyjne) – art. 1209 KPC (Remitting a Case to the Court of Arbitration by a Common Court [of Law] (remitting proceedings) – Article 1209 CCP)

    Usus Magister Est Optimus. Rozprawy prawnicze ofiarowane Profesorowi Andrzejowi Kubasowi

    I dedicate this study to Professor Andrzej Kubas, my Mentor during my attorney apprenticeship in Krakow, in recognition of his scholarly work and legal practice. My cooperation with Professor Kubas constituted a continuous opportunity to study law, but also much more. Professor Kubas’ charisma, but first and foremost his personality, make him, in my belief, a paragon of both an attorney and arbitrator. Since the Professor’s practice also extends to arbitral proceedings, selecting a subject related to broadly understood arbitration was a natural choice.

  • Maciej Durbas

    Favourable award does not guarantee successful execution of claims

    International Law Office - Arbitration & ADR – Poland

    The Warsaw Court of Appeals judgment of October 9 2015 is a recent and important contribution to the development of arbitral law in Poland. The court made a clear distinction between the jurisdictions of state courts and arbitral tribunals regarding the enforcement of claims. It also discussed the defence of set-off raised after an award has been made. Finally, and perhaps most importantly for foreign parties arbitrating in Poland, the court clarified when a claim covered by a valid and enforceable arbitration agreement can be examined only by a state court.

  • Maciej Durbas, Rafał Kos

    Interruption of limitation period of claim covered by arbitration agreement

    International Law Office - Arbitration & ADR – Poland

    The limitation of claims under Polish law is a matter of substantive law, not procedure. However, procedural acts (ie, the start of litigation or arbitration) are important in this regard, as they can interrupt the limitation period. The effective interruption of the limitation period of a claim can be crucial to the final success of litigation or arbitration. However, parties are often unsure whether a case is more suited to arbitration or whether it should be heard by a state court. If they make the wrong choice, there is a chance that the limitation period will run uninterrupted and the claim may become time barred. his issue is problematic in Poland and remains unresolved. It is unclear whether a party can interrupt a limitation period by bringing a case before an improper forum or by initiating onciliatory proceedings before a state.

  • Agnieszka Trzaska, Rafał Kos

    Class & Group Actions 2016 – Poland

    The International Comparative Legal Guide

    The Act of 17 December 2009 on Pursuing Claims in Group Proceedings (Journal of Laws 2010, No. 7, item 44, hereinafter referred to as: the “Act”), in force as of 19 July 2010, introduced a new mechanism for the collective pursuit of claims/group proceedings in the Polish legal system. In principle, the Act is of a purely procedural nature – it introduces no changes to the substantive legal basis for claims or to the principles of a defendant’s liability.

     

  • Maciej Durbas, Rafał Kos

    The European, Middle Eastern and African Arbitration Review 2016 – Poland

    Global Arbitration Review

    The year 2015 brought about two very important amendments to Polish arbitration law: amendments introduced by the Act of 15 May 2015, the Restructuring Law (the Restructuring Law), in general in force as of 1 January 2016; and amendments introduced by the Act of 24 July 2015 on Amendments of Certain Acts Due to Support of Alternative Dispute Resolution (the ADR Law), the legislative process of which is still pending. The aim of these amendments was to adapt Polish rules on arbitration (and ADR in general) to the needs of modern business and create a friendly environment for arbitration.

  • 2015

  • Maciej Durbas, Rafał Kos

    Time limits in arbitration agreements

    International Law Office - Arbitration & ADR - Poland

    High thresholds for proceedings set in arbitration agreements, such as short time limits, can have serious consequences, including the loss of an agreement’s legal effect. Further, parties must choose their arguments carefully, as they may be used against them at a later point. The role of arbitrators in overcoming procedural problems with the parties is also crucial to render an enforceable award. These issues arose in a recent judgment issued in post-arbitral proceedings. The Warsaw Court of Appeal’s June 18 2015 judgment dealt with the interpretation of arbitration agreements.

  • Andrzej Kubas, Kamil Zawicki, Rafał Kos

    International Arbitration – Poland Law & Practice

    Chambers Practice Guides

    Generally speaking, in Poland arbitration is becoming an increasingly popular method of dispute resolution as evidenced by recent research in that field. According to a study prepared by the European Commission entitled ‘Business-to-Business Alternative Dispute Resolution in the EU’, based on 500 interviews with Polish businesspeople, 15% of them have already used arbitration, which gave Poland second place, tied with Italy, in the whole of the European Union.

  • Maciej Durbas, Rafał Kos

    Amendments to arbitral law – more efficient postarbitral preceedings

    International Law Office - Arbitration & ADR - Poland

    Arbitration is often described as a quick means of dispute resolution in comparison to state court proceedings. Whether this argument is still valid regarding the length of arbitral proceedings themselves is debatable. However, arbitration does not operate in a vacuum and state court proceedings are also needed to preserve or enforce the rights of the parties. If a winning party wants to enforce a favourable award, it seeks the state court’s assistance in recognition or enforcement proceedings. If a party is not content with the outcome of the arbitral proceedings, it can motion the state court to set aside the award. Consequently, post-arbitral proceedings are a necessary complement of the arbitral proceedings. Thus, the length of the former should be added to that of the latter to determine the overall length of enforcing claims in arbitration. When arbitral and post-arbitral proceedings are examined together, it is clear that the efficiency of post-arbitral proceedings is crucial in maintaining a quick resolution of disputes. This remains a challenge in many jurisdictions, including Poland.

  • Maciej Durbas, Rafał Kos

    Amendments to arbitral law – more efficient postarbitral proceedings

    International Law Office - Arbitration & ADR - Poland

    Arbitration is often described as a quick means of dispute resolution in comparison to state court proceedings. Whether this argument is still valid regarding the length of arbitral proceedings themselves is debatable. However, arbitration does not operate in a vacuum and state court proceedings are also needed to preserve or enforce the rights of the parties. If a winning party wants to enforce a favourable award, it seeks the state court’s assistance in recognition or enforcement proceedings. If a party is not content with the outcome of the arbitral proceedings, it can motion the state court to set aside the award. Consequently, post-arbitral proceedings are a necessary complement of the arbitral proceedings. Thus, the length of the former should be added to that of the latter to determine the overall length of enforcing claims in arbitration. When arbitral and post-arbitral proceedings are examined together, it is clear that the efficiency of post-arbitral proceedings is crucial in maintaining a quick resolution of disputes. This remains a challenge in many jurisdictions, including Poland.

  • Agnieszka Trzaska, Barbara Jelonek-Jarco

    Litigation and Dispute Resolution – Poland (Postępowania sądowe i pozasądowe – Polska)

    Global Legal Insights 2015

    When compared to other European countries, effectiveness of court proceedings in Poland should be assessed positively and further improvements in this field can be expected in the coming years. All recent amendments to the civil procedure have been oriented towards guaranteeing an improved and more effective course of the proceedings. Changes to the provisions which introduced the principle of concentration of procedural material, supplemented with the principle of judge’s discretional authority, have “equipped” courts with instruments ensuring efficient and fast conduct of proceedings – not only must the judge act as an arbitrator in the dispute between the parties, but also he must be a manager of the proceedings who should counteract any attempts to prolong the proceedings and aim for the quickest possible settlement of the dispute, obviously without detriment to resolution of the case.

  • Maciej Durbas, Rafał Kos

    International Arbitration 2015

    Global Legal Group

    Polish law prescribes both the formal and material requirements for arbitration agreements. As to the form, an arbitration agreement, under Article 1162.1 of the Polish Code of Civil Procedure of 17 November 1964 (hereinafter: “CCP”), has to be made in writing. This requirement is also fulfilled when this agreement is included in letters or recordable communications exchanged between the parties or if the parties refer in their agreement to a document containing a decision to resolve their dispute in arbitration, and if such an agreement is made in writing and the reference incorporates that clause into the agreement (Article 1162.2 CCP).

  • Kuba Gąsiorowski, Rafał Kos

    Elektrim case era comes to an end

    International Law Office - Arbitration & ADR - Poland

    On June 9 2015 the president signed the new Law on Restructuring. This new statute (which will fully come into force on January 1 2016) will reshape the Polish bankruptcy, insolvency and restructuring rules to make it easier for companies to get back on their feet after a period of financial difficulty. From the perspective of arbitration, the new law derogates from the controversial provisions – well known to the arbitration world from the Elektrim case – under which a declaration of bankruptcy rendered arbitration agreements concluded by an insolvent company ineffective. In principle, in future a declaration of bankruptcy will not impede ongoing arbitration. The new provisions deserve a closer look by any foreign party that has entered into an arbitration agreement with a Polish company.

  • Rafał Kos

    The «Arbitrability II » Decision of the German Supreme Court (BGH ) – the German Benchmark for Arbitrating Corporate Disputes in Poland?

    The Challenges And The Future Of Commercial And Investment Arbitration

    A comparison of the German and Polish regulation of company law and procedural law, including arbitration law, has an obvious theoretical foundation. In relation to company law, the Polish regulations most often copy the solutions adopted by the German legislator. Procedural law in both systems is based on the same principles of proceeding and shares a similar understanding of procedural institutions.

  • Agnieszka Raczkowska, Rafał Kos

    Loss of effect of arbitration clause

    International Law Office - Arbitration & ADR - Poland

    On February 5 2015 the Supreme Court issued a judgment (V CSK 231/14) related to a provision of the law regarding the expiration of an arbitration clause (ie, Article 1168 of the Code of Civil Procedure). Pursuant to this provision, if a person identified in an arbitration clause as an arbitrator or presiding arbitrator refuses to perform that function – or if it is otherwise impossible for him or her to perform that function – the arbitration clause will lose its effect, unless the parties decide otherwise. According to the same provision, unless the parties have agreed otherwise, the arbitration clause will lose its effect if the arbitration court defined therein refuses to hear the case or if it is otherwise impossible for the court to hear the case.

  • Grzegorz Pobożniak

    Wokół problematyki zaskarżania uchwał połączeniowych (About the issues of appealing against merger resolutions )

    Glosa

    The commented judgement of the Supreme Court (SC) raises three issues instrumental to the process of appealing merger resolutions in limited companies: 1) what exactly is the meaning of the prohibition on basing legal actions seeking to declare invalidity or repeal a merger resolution upon claims concerning the exchange parity (Article 509 § 3 of the Commercial Companies Code)?; 2) whether a Commercial Companies Code provisions’ breach in the course of a merger procedure, preceding the passing of a merger resolution, may constitute the basis for questioning the legality of the merger resolution?; and 3) whether the time limitation set forth in Article 497 § 2 of the Commercial Companies Code, prohibiting a merger’s repeal after six months of the date of the merger’s registration, should be applied only to the competences of a registry court acting ex officio, or whether it should be construed as also comprising a prohibition to declare invalidity or repeal a merger resolution after that time limit?

  • Rafał Kos

    Public order – compensatory function of penalty clause

    International Law Office - Arbitration & ADR – Poland

    On February 13 2014 the Supreme Court (V CSK 45/13) confirmed that the principle of the compensatory function of penalty clauses is a basic rule of public order. The key issue from a commercial arbitration viewpoint relates to the requirements for enforcing a foreign award in Poland and the limits of the public order clause. The judgment has prompted debate on the criteria that should be followed when assessing whether an award complies with the fundamental principles of the Polish legal system. It also provides a basis for examining other legal standards that are covered by the public order clause.

  • Rafał Kos

    Charakter prawny interwencji zgłoszonej przez wspólnika spółki kapitałowej w sporze o unieważnienie uchwały (The legal nature of the intervention lodged by a shareholder of a company in a dispute for the annulment of the resolution)

    Glosa 2/2015

    The Polish Supreme Court’s (SC) finding that the shareholder’s intervention in a dispute for the annulment or cancellation of a company’s resolution is of a non-autonomous nature if lodged on the side of the defendant company, whereas it is autonomous when a shareholder lodges it on the side of the member challenging the resolution, constitutes a dangerous precedent. The gloss presents a critical analysis of arguments which motivated the SC into adopting this thesis.

  • Kamil Zawicki, Kuba Gąsiorowski, Maciej Durbas

    Poland – The Supreme Court Judgements and Decisions of Appellate Courts

    Czech (&Central European) Yearbook of Arbitration 2015

    An arbitration agreement encompasses not only the disputes explicitly mentioned in its substantive scope but also cases relating to these disputes. Consequently, the prohibition of hearing the case by the state court is applicable also if the determination of the case presented before the state court and not explicitly covered by an arbitration agreement is impossible without examining a dispute being the subject of such an agreement.

  • Agnieszka Trzaska, Andrzej Kubas

    Two Examples of Interaction between State Courts and Arbitration: Ruling on the Competence of an Arbitral Tribunal to Adjudicate and Injunctive Relief in Arbitral Proceedings

    Czech (&Central European) Yearbook of Arbitration 2015

    Although international arbitration has achieved a substantial level of independence from state courts, the role of such courts is still important for effectiveness of arbitral proceedings. Interactions between state courts and arbitral tribunals may be particularly intensive in those areas in which tribunals and state courts have parallel or concurrent competence in the course of arbitration. State courts play an important part in the examination of the jurisdiction of the arbitral tribunal in a given case.

  • 2014

  • Rafał Kos

    The arbitrability and arbitration clause in corporate disputes. Commentary to the arbitral award.

    Arbitration e-Review 2014, No. 3-4

    One of the Polish arbitral tribunals expressed the view that the arbitrability of disputes involving claims for declaring a resolution of a company invalid is conditional on circumstances which invariably require to be assessed in concreto. This opinion is clearly incorrect and the commentary explains why the arbitrability of corporate disputes should not raise any concerns whatsoever.

  • Kuba Gąsiorowski

    Dlaczego ziemia, kapitał i praca nie wystarczą, czyli jak instytucje prawno – polityczne wyznaczają granice rozwoju gospodarczego? (Why is land, capital and labour not enough? How legal – political institutions designate the limits of economic development? )

    Koło Naukowe Historii Doktryn WPiA UJ 2014

    In his most important work entitled “An Inquiry into the Nature and Causes of the Wealth of Nations” Adam Smith, the father of economics, differentiated three production factors: soil, labour and capital. The effective combination of these three factors was to decide on the economic success of a given nation. The mentioned “effective combination” – is nothing more than, in the words of Adam Smith – the “laws and institutions” of a given nation, which decide the level in which the production factors will be exploited.

  • Maciej Durbas

    Dowód z nagrania prywatnego i inne podobne środki dowodowe w postępowaniu arbitrażowym (Private recording as evidence and other similar evidence materials in arbitration proceedings)

    Naczelna Rada Adwokacka, Materiały pokonferencyjne

    Arbitration is characterized by a series of advantages, which make it a good alternative for state court proceedings. One of the advantages is more freedom for arbiters in creating rules for evidence proceedings, including the acceptability of certain pieces of evidence. The aim of the paper is to answer the question about the possibility to proceed evidence from private recordings in Polish arbitration court proceedings, in compliance with the international practice in this matter.

  • Maciej Durbas, Rafał Kos

    The Arbitrators’ (Perceived) Power to Revise a Contract vs. the Power of the Public Policy Clause

    The Austrian Yearbook on International Arbitration 2014

    Arbitration is a creature that owes its existence to the will of the parties alone. This phrase is often used as the leitmotif of arbitration. It draws attention to two of its prominent features, namely its contractual nature and the decisive role of the parties in shaping its procedural scheme.

  • Barbara Jelonek-Jarco, Julita Zawadzka

    The Influence of Violation of the Independence and Impartiality Rules on the Enforceability and Effectiveness of the Arbitral Award

    Czech (& Central European) Yearbook of Arbitration 2014

    The rules of independence and impartiality of arbitrators are guaranteed by various mechanisms. These include the duty imposed upon an arbitrator to disclose any circumstances likely to give rise to doubts as to their impartiality or independence or the parties’ right to challenge an arbitrator.

  • Agnieszka Trzaska, Barbara Jelonek-Jarco

    Litigation and Dispute Resolution – Poland

    Global Legal Insights 2014

    When compared to other European countries, the effectiveness of court proceedings in Poland should be assessed positively and further improvements in this field can be expected in the coming years. Recent amendments to the civil procedure (particularly the amendment which entered into force on 2 May 2012) have been oriented towards guaranteeing an improved and more effective course of the proceedings.

  • Maciej Durbas, Rafał Kos

    International Arbitration 2014 – Poland

    The International Comparative Legal Guide 2014

    The Polish law prescribes both the formal and material requirements for the arbitration agreement. As to the form, an arbitration agreement, under Article 1162.1 of the Polish Code of Civil Procedure of 17 November 1964 (hereinafter: “CCP”), has to be made in writing. This requirement is also fulfilled when this agreement is included in letters or recordable communications exchanged between the parties, provided they refer in their agreement to a document containing a decision to resolve their dispute in arbitration, and if such an agreement is made in writing and the reference incorporates that clause into the agreement (Article 1162.2 CCP).

  • Maciej Durbas

    Przewidywalność szkody jako przesłanka odpowiedzialności odszkodowawczej na gruncie Konwencji wiedeńskiej – glosa – V CSK 91/11 (Predictability of damage as a premise for liability in reference to Vienna convention – glosa – V CSK 91/11)

    Monitor Prawniczy 5/2014

    Damage predictability, which is referred to in par. 74 sentence 2 of the United Nations Convention on Contracts for the International Sale of Goods (Journal of Laws 1997 No. 45 pos. 286), does not exclude liability of the party violating the contract, but restricts the amount of the due damage. Verdict of the Supreme Court of 8 February 2012, V CSK 91/11, OSNC No. 7-8/2012, item 100.

  • Maciej Durbas

    Przewidywalność szkody jako przesłanka odpowiedzialności odszkodowawczej na gruncie Konwencji wiedeńskiej – glosa – V CSK 91/11 (The foreseeability of damages as a premise of compensatory liability on the grounds of the Vienna Convention – gloss – V CSK 91/11

    Monitor Prawniczy 05/2014

    The examination by the Polish Supreme Court of a case which arose on the grounds of the United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11 April 1980 is a true rarity. In any event very few of these rulings spark the interest of the doctrine. Greater attention should be paid to the case in which the Supreme Court made three separate statements. The glossed verdict of the Supreme Court of 8 February 2012 regards the issue of contractual liability on the grounds of the CISG for the non-performance of the sales contract for goods, and specifically the issue of the foreseeability of the caused damage. What sparks concern is the fact that the Supreme Court identified the rules of liability on the grounds of Article 471 et seq. of the Civil Code and Article 45 and 61 om conjunction with Article 74 of the Convetion.

  • Rafał Kos

    Zdatność arbitrażowa sporów o ważność uchwał spółek kapitałowych (Arbitrability of Disputes on Validity of Resolutions of Capital Companies)

    Przegląd Prawa Handlowego 03/2014

    Arbitrability of disputes on validity of resolutions of capital companies constitutes one of the most disputed issues of the arbitration law doctrine. The dominating view holds that in the present legal status such disputes are not arbitrable and de lege ferenda proposals aimed at changing this status quo are put forth.

  • 2013

  • Rafał Kos

    O związaniu cesjonariusza zapisem na sąd polubowny (On binding the assignee with the arbitration covenant)

    Glosa 4/2013

    Recognition by the Supreme Court (hereinafter the SC) that the assignee of liabilities is bound by the arbitration covenant from a basic relationship from which the liability arises, was decisive for establishing- uniform both in the case law, as well as in the doctrine that each legal successor of a specific title of a party from the basic agreement is bound by the arbitration covenant included in this agreement.

  • Paweł Sikora

    Mergers & Acquisitions

    Financier Worldwide Magazine

    When it comes to M&A in Central & Eastern Europe (CEE), last year was definitely less interesting than 2011, which was considered to be a record-breaking year for M&A deals. In 2012, the total deal value of transactions in Poland was €9bn from 331 transactions completed – compared to 2011 where the total value was €18bn from 516 transactions completed. However, Poland remained among the region’s leading countries for M&A.

  • Marek Porzycki, Rafał Kos

    Sytuacja prawna majątku pozostałego po wykreśleniu spółki kapitałowej (The legal situation of the estate remaining after the deletion of the capital company)

    Monitor Prawa Handlowego 3/2013

    The aim of the present article is to outline the opinions appearing in the Polish doctrine on the topic of the introduction of the compulsory liquidation of insolvent companies, towards which bankruptcy proceedings have not been instigated due to the lack of a sufficient estate to cover the costs as well as the formulation of a stance which, in the opinion of the authors, would allow for the settlement of this issue on the basis of solutions proposed in the Recommendations of the Team of the Minister of Justice on the amendment of the Bankruptcy and Rehabilitation law.

  • Andrzej Kubas, Kamil Zawicki

    The Scope of Mandatory Provisions of Procedural and Substantive Law Binding upon a Court of Arbitration

    Czech (& Central European) Yearbook of Arbitration 2013

    The scope of binding mandatory provisions of procedural and substantive law seems to be one of the most important problems of arbitration, especially international arbitration. It is connected to various other concerns, e.g. the law applicable to various elements of arbitration, mainly the arbitration agreement, but also arbitrability.

  • Andrzej Kubas, Kamil Zawicki, Magdalena Selwa

    Charge of the Non-Existence or the Invalidity of the Arbitration Clause in the Proceedings on the Recognition and Enforcement of an Arbitration Award (…)

    Czech (& Central European) Yearbook of Arbitration 2013

    With the arbitration award of the Arbitration Court at the Waren-Verein der Hamburger Bőrse e. V. Association in Hamburg (Germany)of 3 November 2010 (hereinafter respectively as: “Arbitration Court” and “Arbitration Award”) G-N. Ltd, with its registered seat in Old Tbilisi (Georgia) was awarded from “R.-H.” S.A. with its registered seat in W. (Poland) the amount of USD 101,600 with interest and fees on account of the remaining sale price of hazelnuts.

  • 2012

  • Andrzej Świderski

    Nowe regulacje nie zlikwidują shadow bankingu (New regulations will not get rid of shadow banking)

    obserwatorfinansowy.pl

    The history of economic policy confirms that the idea that detailed top-down “decreeing” of the spheres of business activity, through norms ordering the taking of certain actions or forbidding the taking of others (often in separation from the rules of economics) have brought about inconveniences, and only sporadically solved the problems lying at their bases.

  • Andrzej Kubas, Kamil Zawicki

    Polish supreme court determines stricter rules in establishing due compensation in vehicle holders insurance market

    Guy Carpenter 09/2012

    According to many insured car holders in Poland, insurers have been underestimating compensation for losses, and the majority of auto insurance cases in Poland have been settled for amounts far below the actual costs of restitution. The most frequent reason is that the value of a loss has been determined based on the prices of used spare parts rather than new ones. A recent resolution by the Supreme Court of Poland may put an end to these activities committed by insurers and may be another indication that the courts are favoring insurance holders in recent car insurance cases.

  • Dominik Gałkowski, Kamil Zawicki, Olga Horwath

    Multiple Parties in the Construction – Litigation and Arbitration Proceedings – Comparative Case Study

    e-Przegląd Arbitrażowy no. 1(8)/2012

    Dispute resolution in the case of construction contracts may prove to be a challenging and complex process. When an investor enters into a construction contract with a general contractor, there are, as a rule, several other parties involved in the process, such as: the architectural design studio and the sub-contractors. These parties are, as a rule, bound by several contracts. The existence of multiple parties and multiple contracts is a key characteristic of the construction proces.

  • Andrzej Kubas, Kamil Zawicki

    Insurance market for public servants in light of new act on financial liability of public servants for the grave violation of the law in Poland

    Guy Carpenter 04/2012

    A new regulation, the act on the Financial Liability of Public Servants for the Grave Violation of the Law (FLPS), may impact the Polish insurance market in the next few years. FLPS concerns the financial liability of public servants towards the State Treasury, the territorial government unit or other legal persons that bear liability for damages inflicted while exercising public authority. The Polish Parliament passed the act on January 20, 2011, and it became effective on May 17, 2011.

  • 2011

  • Andrzej Kubas, Kamil Zawicki

    Recent legislative and judicial developments in continental Europe affecting the casualty insurance industry

    Guy Carpenter 09/2011

    Directors and officers (D&O) insurance has grown steadily in popularity since it was introduced in Poland 15 years ago. Accompanied by a rise in risk-aware corporate leadership, D &O insurance has evolved from an unknown product in the mid-1990s to a near necessity during periods of economic instability. Liability for damages caused by the decisions of professionals has become apparent. Although the market for D&O insurance is still developing, insurance premiums for 2010 were between PLN30 million and PLN50 million (approximately USD10.2 million and USD17.1 million). Current predictions indicate the market size will double in the coming years.

  • Dominik Gałkowski

    Polish provisions on company mergers

    Financier Worldwide 04/2011

    Polish regulation on the process of merging companies does not differ from solutions, applied in other European states. Furthermore, these laws are influenced by changes to similar European regulation. However, in analysing the company merger control process in Poland, it is important to differentiate two significant issues: first, the control of the registry court and second, competition law.

  • Kamil Zawicki, Olga Horwath

    Confidentiality in International Arbitration and the Need for International Ethical Standards For Lawyers

    Lewiatan, Arbitration e-review 2(05)2011

    Although the profession of a lawyer so far has not required a change of the location of practice too often, in the globalised world of today, lawyers more and more often represent clients also outside of the jurisdiction within which they practice on a daily basis. As a consequence, in diverse legal cultures they come across ethical standards different than their own. This pertains, among others, to the confidentiality principle in international commercial arbitration.

  • Wojciech Wandzel

    Legal risks for managers carrying out a corporate restructuring process

    Financier Worldwide 02/2011

    Often, investors have to restructure the companies they own, and Poland is by no means an exception in this regard. The process entails taking action on the part of previous or new managers. However, Polish law presents legal risks to members of the management board and each manager participating in the administration of a company ought to be familiar with these risks. This article will present the most pertinent legal risks in terms of criminal, fiscal and civil liability faced by members of management boards of companies subject to restructuring.

  • 2010

  • Barbara Jelonek-Jarco

    New possibilities in joint-venture financing in Polish law

    WCR 12/2010

    The role of the mortgage in Poland is on a constant increase. One can see that the difficult period in financing investments, especially in the real estate sector caused by the crisis, is slowly drawing to an end. The revival occurring after many months is manifested in the increasing number of commenced investments and entails, obviously, both investors as well as of financial institutions’ interest in new forms of securing the financing of projects. Hence, the question on the role of the mortgage in commercial transactions returns.

  • Barbara Jelonek-Jarco

    The granting of a temporary injunction in the course of proceeding before a Polish state court or a court of arbitration

    Litigation, Arbitration & Dispute Resolution Digital Guide 2010

    The granting of a temporary injunction is an important method for the protection of the rights of an entity willing to pursue its claims before a court. Proceedings concerning the granting of a temporary injunction are a procedural form of interim legal protection and its function in the examination proceedings is ancillary.

  • Mirosław Cejmer

    Capability of settlement by arbitration

    Litigation, Arbitration & Dispute Resolution Digital Guide 2010

    By virtue of the Act dated 28 July 2005 (Code of Civil Procedure, Journal of Laws no. 178, item 1478) a new Part Five (Articles 1154 – 1217) containing extensive regulations of arbitration jurisdiction was introduced to the Code of Civil Procedure (“CCP”). This regulation is based vastly of the UNCITRAL Model Law on International Arbitration of 21 June 1985. However, as regards one of the major elements of the arbitration system, i.e. the so-called capability of settlement by arbitration, the solution suggested in the model act was not taken into account…

  • Julita Zawadzka

    The conclusion of an agreement and ex culpae in contrahendo liability in the Polish law

    Litigation, Arbitration & Dispute Resolution Digital 2010

    Agreements are a basic source of creation of obligational relationships in the Polish law. The provisions of the Polish Civil Code dated 23 April 1964 provide for three manners in which the conclusion of an agreement may occur as well as the liability for the non-performance of an agreement and the so-called pre-contractual liability…

  • Rafał Kos

    The multitude of the entities in Polish civil proceedings and the institution of class action suits

    Litigation, Arbitration & Dispute Resolution Digital 2010

    The Polish civil procedure differentiates between two types of proceedings at the case examination stage:
    a) so-called litigious proceedings (disputable) and
    b) non-litigious proceedings (non-disputable).
    In the case of non-litigious proceedings, the number of parties that may participate in the proceedings is theoretically unlimited – apart from the applicant, the status of a party in the proceedings (i.e. a participant) may be obtained by any person interested in the case who proves that the outcome of the proceedings affects the scope of their rights or obligations.

  • Iwona Karasek

    Bankruptcy in Polish Law – The Premises of Instigation and the Course of Proceedings

    Corporate Bankruptcy & Restructuring 2010

    Bankruptcy is declared in relation to a debtor which has become insolvent. A debtor is insolvent when it fails to perform the required pecuniary obligations. If the debtor is a legal entity or organisational unit not possessing a legal personality, but a separate act grants its legal capacity, it is also deemed as insolvent when its obligations exceed the value of its estate, even if the obligations are met on a standing basis.

  • Arkadiusz Radwan

    Intellectual Property Rights in M&A Transactions in Poland

    Mergers, Acquisitions & Joint Venture Digital Guide 2010

    Intellectual property rights can sometimes be underestimated or even overlooked in a due diligence progress preceding a corporate transaction. This occurs because intellectual property is not a physical asset. Its very existence and scope, and thus its value heavily depends on contractual rights and other legal issues. Yet, intellectual property may be the most valuable asset of the company and acquirer should attach utmost attention to their proper investigation and evaluation. This article discusses vital issues in corporate transactions through the lens of an IPR lawyer and provides a practical checklist of what needs to be done and cared for.

  • Arkadiusz Radwan

    Going-Private: Delisting of the Acquire Company in Polish law

    Mergers, Acquisitions & Joint Venture Digital Guide 2010

    The Paper reviews the legal requirements and processes associated with the going-private transaction. Since delisting dramatically changes the investors’ position, the law imposes certain mechanisms aimed at minority investor protection, which – correspondingly – the controlling majority needs to observe. These legal mechanisms equip the minority with an exit option so as to mitigate the liquidity loss of their original investment. Correspondingly, this trade-off imposes on the acquirer additional transaction cost that needs to been taken into account.

  • Paweł Sikora

    Squeeze-out Mechanisms Applicable to Non-listed Companies

    Mergers, Acquisitions & Joint Venture Digital Guide 2010

    Not only are listed companies exposed to takeovers, control change may occur in non-listed companies as well, although for obvious reasons the latter are less vulnerable to unsolicited takeover. An important puzzle of the entire legal framework facilitating takeovers is the squeeze-out mechanism. Squeeze-out is understood as a means of the residual shares of the target. In many jurisdictions squeeze-out only exists for listed companies. This is not the case in Poland, where there is a separate set of rules applicable to non-listed companies. This article discusses practical problems associated with the compulsory acquisition of non-listed companies under Polish Law.

  • Marcin Chruściński

    Dissenting Shareholders and Creditor Right in Corporate Mergers

    Mergers, Acquisitions & Joint Venture Digital Guide 2010

    A corporate merger is capable of significantly amending the position of shareholders in the two or more companies embraced by such a transformation. Additionally, creditors as third parties, might also be affected by their debtor’s transformation. This article discusses the position of dissenting shareholders and corporate creditors and explains what legal rights and remedies they enjoy. On the other hand, the existence of a certain level of minority and creditor protection imposes a legal risk on the transaction which also needs to be taken into account as a cost factor.

  • Patrycja Wysocka

    Target Board’s Duties and Available Defence Strategies under Polish Takeover Law

    Mergers, Acquisitions & Joint Venture Digital Guide 2010

    Takeover law has been subject to European harmonization for many decades. The finally adopted 13th Directive of 2004 is widely perceived as a modest compromise. Hence, substantial differences remain among national laws and legal practice. For a successful tender bid or – taking the opposite perspective – for an effective takeover defence, it is crucial to comprehend the legal framework governing takeovers and to understand specificities the target board’s duties and available defence mechanisms.

  • Rafał Kos

    The influence of the declaration of bankruptcy on court proceedings

    Financier Worldwide 11/2010

    In the event of a declaration of liquidation bankruptcy or arrangement bankruptcy, which removes the bankrupt’s rights to manage the assets comprising the bankruptcy estate, the court, pursuant to Article 174.1.4 of the CCP, is obligated ex officio, to suspend the pending proceedings as well as inform the receiver in bankruptcy or the court administrator on the pending proceedings, setting a relevant time period for him to accede to the said proceedings.

  • Marlena Pecyna

    Contemporary trends in the regulation of the control scope of covenants in European proposals and in Polish Civil Code project

    WCR 09/2010

    The issue of control over unfair terms is one of the basic issues of European harmonization of private law, mainly due to Directive 93/13 of 13 April 1993 on unfair terms in consumer contracts, which was adopted and is being implemented into legal systems of member states of the European Union. However, the subject has not yet been exhausted, and the process of regulating the issue has not yet been terminated.

  • Kamil Zawicki

    Effective Dispute Resolution

    Financier Worldwide Magazine

    In the current financial climate, corporate disputes are inevitable. Such conflicts often result from a combination of factors, and developing a comprehensive dispute resolution strategy has never been more important. A company needs to manage risks and deal with conflicts as soon as they arise. A company needs to manage risks and deal with conflicts as soon as they arise. There will be questions about whether a conflict should be resolved in court, via arbitration or through other forms of alternative dispute resolution. Since there is no ‘one size fits all’ approach, each solution has its pros and cons.

  • Kamil Zawicki

    The influence of declaring bankruptcy of a Polish business on the arbitration clause

    Chambers Magazine

    The Polish Ministry of Justice has prepared draft amendments to the Bankruptcy and Rehabilitation Law (“BRL”), proposing the repeal of two controversial provisions of this Act. Under the current law, on the declaration of a business’ bankruptcy (bankruptcy with the possibility of entering into a reorganization agreement – Article 142 BRL, as well as bankruptcy covering the liquidation of the bankrupt party’s estate – Article 147 BRL), any arbitration covenants made by the bankrupt party lose their force of law, and any already pending proceedings are subject to discontinuance.

  • Arkadiusz Radwan

    Limitation in Polish commercial proceedings – the risks for foreign entities

    Financier Worldwide 05/2010

    Unless otherwise agreed by virtue of the jurisdictional choice or arbitration clause, the disputes between entrepreneurs in Poland are examined within special commercial proceedings by the commercial divisions of state courts. In these proceedings, the parties face many formal requirements. Failing to observe those requirements may result in losing the case, irrespective of the legal evaluation of the merits of the case.

  • Dominik Gałkowski

    Trans-European insolvency proceedings

    Financier Worldwide 01/2010

    Amid the economic crisis, entrepreneurs should carefully consider European provisions regulating bankruptcy issues, i.e. Council Regulation (EC) No. 1346/2000 of 29th May 2000. Under these provisions, the declaration of insolvency of a company in one member state may be carried out by the court of another member state.

  • 2009

  • Dominik Gałkowski

    Buying a business in bankruptcy

    Financier Worldwide 07/2009

    The current economic crisis has affected the world’s markets in a number of different ways. Some countries are struggling to cope with a rapid economic slowdown, while others are emerging virtually unscathed in comparison. An example of the latter is Poland, a country buoyed by export growth, industrial production and increasing levels of foreign direct investment (FDI). Ruth Saunders spoke to the partners of Kubas Kos Gaertner, one of Poland’s leading law firms to find out more.

  • Dominik Gałkowski

    Currency options – the Polish aspect of the global financial crisis

    Financier Worldwide 07/2009

    The global financial crisis that began last year, so far has been relatively gentle on the Polish economy. According to the current data published by Eurostat, only Poland and Cyprus have recorded positive GDP growth out of the EU member states that have communicated their results. However, despite the relatively good shape of Polish businesses, a significant weakening of the Polish currency in relation to the Euro has taken place since August 2008.

  • Andrzej Kubas

    Streitsachen im internationalen Wirtschaftsschiedsverfahren in Polen und Deutschland (Court disputes in international commercial arbitration in Poland and Germany)

    DPJZ Volume 2 - Special Edition 2009

    Professor Andrzej Kubas PhD. The introduction of the free market economy principles, and soon after of the market economy principles in Poland at the turn of the 1980’s and 1990’s has fundamentally changed both the substantive law links between enterprises as well as the manner of dispute resolution and mediation in commercial cases.

  • Rafał Kos

    Prawne aspekty restrukturyzacji i upadłości firm (Legal aspects of restructuring and the bankruptcy of companies)

    Harvard Business Review Polska 02/2009

    Polish law contains provisions due to which declaring the bankruptcy of an enterprise, an entrepreneur not only may continue his operations, but may also obtain extra protection against creditors. Such a “deal” may also prove useful for creditors whose claims will be satisfied to a higher degree than through the regular sale of assets.