Editorial Board - sadarbitrazowy.org.pl · Jacek Kaczmarek, Jerzy Rajski, Beata Gessel-Kalinowska vel Kalisz, Małgorzata Surdek 45 SUMMARY Andrzej Kidyba, Beata Gessel-Kalinowska

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Paweł Pietkiewicz, Dr. Rafał Morek, Tomasz Zbiegień

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Issue No. 3(6)/2011:

DEBATE OPENING

Debate Commercial Arbitration in the 21st Century in Poland and Europe: decline or development?

Beata Gessel-Kalinowska vel Kalisz, Marek Michal-ski, Maciej Szpunar, Maciej Bobrowicz

4

PART I IDEOLOGICAL ORIGINS OF ARBITRATION

– WHAT VIRTUES SHOULD BE PROMOTED AND PROMULGATED?

Introduction Beata Gessel-Kalinowska vel Kalisz 8

Discussion

Jerzy Rajski, Marcin Dziurda, Jolanta Nowakowska-Zimoch, Ewa Nowińska, Małgorzata Podrecka, Krzysztof Stefanowicz, Ireneusz Matusiak, Aleksand-er Chłopecki, Zbigniew Banaszczyk, Tomasz Wardyński

12

PART II ARBITRATION AND THE NEED FOR LEGISLATIVE CHANGES

HAS THE TIME COME FOR A CHANGE IN THE MODEL OF THE APPLICATION FOR SETTING ASIDE AN ARBITRAL AWARD?

Introduction Bartosz Krużewski 25

Discussion Karol Weitz, Tadeusz Ereciński, Aleksander Chłopecki, Ireneusz Matusiak, Beata Gessel-Kalinowska vel Ka-lisz, Jerzy Rajski, Rafał Morek, Barbara Grabowska, Paweł Pietkiewicz

31

PART III CAN POLAND BECOME A EUROPEAN ARBITRATION CENTRE?

Introduction Maciej Jamka 41

Discussion Tomasz Wardyński, Paweł Pniewski, Karol Weitz, Jacek Kaczmarek, Jerzy Rajski, Beata Gessel-Kalinowska vel Kalisz, Małgorzata Surdek

45

SUMMARY

Andrzej Kidyba, Beata Gessel-Kalinowska vel Kalisz, Marek Michalski

53

Debate: Commercial Arbitration in the 21st century

in Poland and in Europe: decline or development?

15th April 2011, Hotel Bristol, Warsaw

p. 4 | Arbitration e-Review, No 3 (Summer) 2011

DEBATE OPENING

Dr. Beata Gessel-Kalinowska vel Kalisz: Let

me welcome you all to our debate. I must admit

that this debate is a dream come true for me

and I hope that this is how a constructive dis-

cussion on Polish arbitration will begin.

Once in a while the issue of arbitration sur-

faces, although discussions about it are rare.

The programme for the current debate, which I

prepared, tackles issues which are related to

both the practical aspects of arbitration and the

more doctrinal ones.

First of all I would like to thank Mr. Radosław

Sikorski, the Minister of Foreign Affairs, for

agreeing to this discussion taking place under

his auspices. I am convinced that one of the

themes of today’s debate is crucial, i.e. the

question of our place on the map of European

and international arbitration. I would also like

to thank Mr. Krzysztof Kwiatkowski, the Minis-

ter of Justice, who also agreed to give this de-

bate his endorsement. Unfortunately, he could

not be here with us today. I believe that the

patronage we have been granted is of para-

mount importance to the development of, and

changes to, arbitration. I would like to cordially

thank Professor Rajski and Professor Sołtysiń-

ski, who provided us with substantive and or-

ganizational assistance. Unfortunately, Profes-

sor Sołtysiński could not be here with us but

sends his regards.

Let me now introduce the participants in the

debate. Please note that the seating order is not

accidental. First of all, there are the representa-

tives of state institutions who agreed to take

part in our debate. I would like to welcome Mr.

Maciej Szpunar, the Minister from the Ministry

of Justice. Please also welcome Ms. Joanna

Kiełkowska, who is the Head of the Business

Affairs Division of the Department of Common

Courts in the Ministry of Justice, as well as Jus-

tice Michał Dąbrowski, a representative of the

Ministry of Justice. I would also like to extend

my warm welcome do Dr. Marcin Dziurd,

President of the State Treasury’s Solicitors’

Office, who is very often involved in arbitration

proceedings, and Mr. Maciej Bobrowicz, the

President of the National Board of Legal Advi-

sors.

The second group of professionals who are par-

ticipating in today’s debate consists of repre-

sentatives of arbitration institutions. We have

in our group Prof. Aleksander Chłopecki, who

chairs the Arbitration Court at the Polish Fi-

nancial Supervision Authority. We welcome

Prof. Bernadeta Fuchs, the head of the Arbitra-

tion Court at the Chamber of Commerce and

Industry in Katowice, and Ms. Elżbieta Kor-

natka, the Court Secretary at PKPP Lewiatan,

who is known to many of you as a legendary

figure in the field of arbitration; and Mr.

Andrzej Jankowski, Vice President of the Arbi-

tration Court at the Association of Polish Banks.

Let me welcome Mr. Jacek Kaczmarek, Vice

Arbitration e-Review No. 3 (Summer) 2011 | p. 5

DEBATE OPENING

President of the Arbitration Court at the Cham-

ber of Commerce and Industry in Nowy To-

myśl, for which today is a big day due to an in-

ternational conference taking place there - to

which we shall, most likely, refer in the third

part of our discussion. We also have with us Mr.

Ireneusz Matusiak, President of the Arbitration

Court concerning internet domains, and Mr.

Paweł Pniewski, General Secretary of the ICC

Polish National Committee.

Our group also consists of academics - whom I

have not yet enumerated - distinguished due to

the positions they hold in arbitration institu-

tions. I would also like to welcome, this time in

an alphabetical order, the following people: Dr.

Zbigniew Banaszczyk from Warsaw University,

Prof. Adam Brzozowski from Warsaw Univer-

sity, Prof. Tadeusz Ereciński from Warsaw Uni-

versity, the President of the Supreme Court and

also, especially important for us today, the head

of the Codification Committee. Let me also wel-

come Prof. Andrzej Kidyba from the Maria Cu-

rie-Skłodowska University, Prof. Marek Michal-

ski from the Cardinal Stefan Wyszyński Univer-

sity, Prof. Ewa Nowińska from the Jagiellonian

University, Prof. Karol Weitz from Warsaw

University, Dr. Rafał Morek from Warsaw Uni-

versity and also the editor of „E-Przegląd Arbi-

trażowy” (Arbitration electronic newsletter).

I would also like to welcome some people

highly regarded in the field of arbitration: Mr.

Maciej Jamk, a lawyer from K&L Gates, Mr. Bar-

tosz Krużewski, a lawyer from Clifford Chance,

Ms. Jolanta Nowakowska-Zimoch, a lawyer

from Hogan Lovells, Mr. Paweł Pietkiewicz, a

lawyer from White & Case, Dr. Małgorzata Po-

drecka, Head of the Legal Department in Can-

Pack S.A., Dr. Krzysztof Stefanowicz and Ms.

Małgorzata Surdek from CMS Cameron

McKenna, Mr. Tomasz Wardyński, a lawyer

from Wardyński i Wspólnicy and Prof. Andrzej

Wierciński from Wierciński Kwieciński Baehr.

We also have with us a representative of the

Helsinki Foundation for Human Rights, Ms.

Barbara Grabowska. I also extend a warm wel-

come to the representatives of the media. Mr.

Krzysztof Sobczak will listen to our debate and

Mr. Marek Domagalski will join us shortly.

Let me also welcome our online audience.

There is live coverage of the debate via the

website of the Court of Arbitration at PKPP

Lewiatan. All internet users are encouraged to

voice their opinions and comments. You can

either do it through the website or via elec-

tronic mail.

Let me now give the floor to Prof. Marek

Michalski, who will conduct the debate and

whom I wish to thank cordially for accepting

our invitation.

Prof. Marek Michalski: Thank you very much.

Let me welcome you all. Following what was

said by the preceding speaker, I hope that

maybe in the future, not necessarily in a couple

of years but rather in a dozen or so, debates

such as this will have audiences of millions.

This is certainly what we wish for. We are al-

ready using new technologies to our advantage

and, as far as I understand, we are being

watched the whole time.

Let me ask Mr. Maciej Szpunar, Undersecretary

of State responsible for legal and treaty issues

at the Ministry of Foreign Affairs, to take the

floor.

Maciej Szpunar, Undersecretary of State re-

sponsible for legal and treaty issues at the

Ministry of Foreign Affairs: Thank you. Ladies

and gentlemen, first of all I would like to thank

you for the opportunity for the Ministry of For-

eign Affairs to give its patronage to this event,

and I also wish to congratulate you on such a


DEBATE OPENING

wonderful initiative. The Ministry of Foreign

Affairs is not involved in arbitration, but the

functioning of arbitration, and in particular

international arbitration is, in my opinion, of

paramount importance to the tasks that face

the Ministry of Foreign Affairs.

I wish to tackle the following two issues.

This conference should really be the focus of

attention because it tackles general aspects of

arbitration. One can even say that it is about

the axiology of arbitration, about what arbitra-

tion is, what model should be applied, and

whether Poland could become an arbitration

centre. There are no doubts that the answers

to such questions depend upon whether arbi-

tration in Poland will be strong, whether en-

trepreneurs in Poland will refer to arbitration

proceedings in disputes between themselves,

and to what extent Poland can become a place

for international arbitration.

I would like to share a general thought with

you. Irrespective of what provisions of law we

apply in Poland and what solutions we reach

with respect to complaints and the challenging

of arbitration awards, the popularity of arbitra-

tion and the importance of Poland as a place for

arbitration will depend most of all on the qual-

ity, strength and stability of the Polish State.

Let me put it this way, if Poland is a popular

place for arbitration, it will mean that Poland is

perceived as a stable country in all meanings of

this word, i.e. that Poland is a state in which

state jurisdiction functions properly.

The fact that arbitration constitutes an alterna-

tive to the jurisdiction of the state does not

mean that the worse the state jurisdiction func-

tions, the better arbitration functions. On the

contrary. Both have to function properly. If Po-

land were a popular place for arbitration, it

would mean that Poland plays an important

role in the international economy, at least on a

regional scale. It would also mean that Poland

has good relations with its neighbours, maybe

not excellent, but at least transparent. Poland is

perceived as a country which can overcome

differences between states. If Poland were an

arbitration hub, it would also mean that Polish

legal ideas are highly recognized and can influ-

ence international law and other legal systems.

It would also mean that Poland has played its

card well as the biggest country in this part of

Europe. It would be perceived as a country

which successfully carried out the transforma-

tion of its economy and which significantly con-

tributes to the policy of the European Union

towards its Eastern neighbours.

I hope you can see that the success of arbitra-

tion is linked with the goals of the Ministry of

Foreign Affairs; therefore, Mr. Sikorski had no

doubts with respect to the Ministry’s patronage

concerning today’s debate.

I also have to apologize for leaving the debate

earlier but, unfortunately, I have some previous

commitments to attend to. I wish you a suc-

cessful debate and I look forward to hearing

about its results. Thank you once again for hav-

ing me here.

Maciej Bobrowicz, lawyer, President of the

National Board of Legal Advisers: Minister,

President of the Supreme Court, Ms. Gessel, I

would like to thank you very much for inviting

me to such an important debate. It is important

not only for entrepreneurs - our clients - but it

is also important for us, the lawyers, both theo-

reticians and practitioners. When I familiarized

myself with the results of research on arbitra-

tion in Poland, which you can find in your de-

bate materials, I realized that arbitration is not

very popular: 410 cases before the Arbitration

Court at the Polish Chamber of Commerce and


DEBATE OPENING

25 cases before the Arbitration Court at PKPP

Lewiatan. We could ask ourselves what the

reason is for such a state of affairs. It is a crucial

question. If we find the cause we will also be

able to find the solution. Why, for so many

years, could arbitration as a concept not get its

message heard by entrepreneurs and practic-

ing lawyers?

In my opinion, one of the reasons lies in the low

level of legal awareness of Poles. If 67% of en-

trepreneurs are of the opinion that they do not

need a lawyer because their type of enterprise

does not need the support of lawyers, the OBOP

research speaks for itself. If 66% of citizens

share this view, and 87% of micro entrepre-

neurs have never hired a lawyer, the chance, in

such circumstances, of a lawyer appearing and

suggesting arbitration as the most effective

way of resolving a dispute, is zero.

There is also another question. Namely, in en-

terprises which actually employ lawyers, why

do those lawyers not recommend arbitration as

the best solution? This is an important ques-

tion. PriceWaterhouseCoopers together with

Viadrina University carried out some extremely

interesting research - not on arbitration but on

mediation, which is another method of resolv-

ing disputes. The research was based on big

corporations. The questions asked were the

following: Do you know all the advantages of

mediation? – Yes, I do. Do you know what me-

diation is? – Yes, I do. Do you use mediation? –

No. I don't. The researchers failed to clarify the

reasons for this situation. Perhaps it would be

important to carry out such research in Poland.

Maybe we should ask the practitioners about it,

those who are the key keepers, as the English

put it, and who open or close the doors to arbi-

tration or mediation.

As far as mediation is concerned, the situation

is simple. The majority of practitioners are of

the opinion that mediation is not financially

profitable for them. This argument does not

work in the case of arbitration. The important

question is, why we, legal advisors or attor-

neys-at-law, do not perceive arbitration pro-

ceedings as an effective method of dispute

resolution. Maybe some research would enrich

our knowledge on the subject and enable us to

look for some effective solutions.

I wish you a successful discussion and interest-

ing results. Thank you very much.

Ideological origins of arbitration – what virtues should be promoted and promulgated?

Panel Moderator: Prof. Jerzy Rajski

Introduction by: Dr. Beata Gessel-Kalinowska a.k.a. Kalisz Panel Participants: Prof. Jerzy Rajski; Dr. Marcin Dziurda; Jolanta Nowakowska-Zimoch;

Prof. Ewa Nowińska; Dr. Małgorzata Podrecka; Dr. Krzysztof Stefanowicz; Ireneusz Matusiak; Prof. Aleksander Chłopecki; Dr. Zbigniew Banaszczyk; and Tomasz Wardyński


PART I

Prof. Marek Michalski: Let us move to the

first part of our debate. We have given it the

following title: „The ideological sources of arbi-

tration: what values should be supported and

propagated?” Prof. Jerzy Rajski has been kindly

asked to chair the first discussion.

Prof. Jerzy Rajski: Thank you. Let me ask Dr.

Gessel to take the floor and speak about the

axiology of arbitration and the necessity of its

presence in the world economy.

Dr. Beata Gessel-Kalinowska vel Kalisz:

Thank you professor. It could take me a very

long time to speak of the importance of arbitra-

tion to entrepreneurs. I will, however, restrict

myself to 10 minutes. I have selected 5 rea-

sons, for the purpose of this debate, to justify

why entrepreneurs should be encouraged to

include arbitration clauses in agreements.

Arbitration is liberal, fast, friendly, predict-

able and confidential. Let’s say that the last

issue is the least controversial. The first reason:

Why is arbitration liberal? I also use the word

“flexible” in this context. Arbitration is liberal

for two reasons. First of all the most important

principle of arbitration is the freedom to ap-

point an arbitrator. I can choose a judge in my

own case, i.e. a person whom I trust.

I can make a choice concerning an arbitrator

taking into account a variety of criteria: e.g. I

think that such a person will run the case

smoothly, or that he or she has the appropriate

knowledge and experience with respect to the

issues which are to be adjudged. The right to

choose an arbitrator is the beginning and the

end of the arbitration, and the core of arbitra-

tion stems from this very principle. In particu-

lar, I must surrender voluntarily to the award

of an arbitrator since I chose him or her per-

sonally, and nobody imposed him or her on me.

There are several consequences that stem from

such an assumption, and in fact the whole pro-

cedural side of arbitration arises from this very

principle. First of all, arbitration is, in general, a

single-instance court. If nobody imposes an

arbitrator on me, I do not have to subject the

award to control before a court of the second

instance. This is how I understand the arbitra-

tion court as the court of single instance. The

other issue which concerns the liberal aspect of

arbitration is the fact that I can personally, as

an entrepreneur, or a lawyer, select the rules

according to which my case is to be examined. I

can define the time-frame of particular actions,

I can choose whether a case is to be tried in an

institutional court or on an ad hoc basis. If the

ad hoc method is selected, I can choose the pro-

cedure according to which the case is to be

tried. It appears then that in arbitration the


PART I

principle of freedom of contract is truly re-

flected.

The second wonderful feature of arbitration is

the fact that it is fast. In December last year

there was a discussion in the “Gazeta Prawna”

daily, in which Professor Sołtysiński - by the

way, I regret he cannot be with us today -

voiced the opinion that arbitration proceedings

were long and costly. I ventured to disagree

with Professor Sołtysiński in the subsequently

published polemic. I calculated how long arbi-

tration proceedings last before the Lewiatan

Arbitration Court as I have access to such data.

It turned out that last year each case was set-

tled within 6 months on average. If we take into

account five years and approximately 50 set-

tled cases, the average length per case was 6.5

months. We do not hear a great many cases, but

50 cases could constitute a sample on the basis

of which the length of the arbitration proceed-

ings may be reviewed. At the preparation stage

of this debate, I asked several arbitration insti-

tutions to share their data and it turned out

that Lewiatan Arbitration Court was not an

exception. The Court of Arbitration for Internet

domains which deals with single-issue cases

settles disputes in 1.5 to 3 months. It is a truly

efficient institution. We have also received data

from the Arbitration Court in Nowy Tomyśl.

Their time frame for settling disputes is 7

months. In this light, the opinion that arbitra-

tion proceedings are lengthy is slightly far

fetched. There is a general opinion after the

Vivendi case that arbitration proceedings take

years, are very complicated, and are beset by

legal loopholes. We have to bear in mind that in

this case, even the registration of the manage-

ment board took a couple of years, so it is not a

good example for disqualifying arbitration pro-

ceedings due to their pace.

The next feature of arbitration is its friendli-

ness. Judging from my experience as an arbi-

trator, and I am sure that at least half of you

can share my opinion, I am sure that a situation

differs, from the psychological point of view,

when a case is adjudicated by a judge in a court

room and when people meet in a conference

room. In the case of arbitration, the disputes

are, in fact, solved in a conference room in an

atmosphere conducive to reaching agreement.

It is very important in business that there is

always sunshine after rain and that after a con-

flict people can still do business with one an-

other provided that a certain unfortunate ele-

ment in their cooperation has been resolved. It

is not a rule but, in my opinion, such a situation

is more probable in arbitration proceedings.

This is also due to the fact that the majority of

issues are agreed with the parties, such as a

timetable for the proceedings, which I shall

refer to later. Not every party to arbitration is

aware of the fact that it can actually request the

arbitrators to establish the timetable of the

arbitration at the very beginning of the pro-

ceedings and that such timetable should be

agreed with the parties. Agreeing on the man-

ner of settling disputes is not only a concilia-

tory element, but it is crucial from the perspec-

tive of the pace of the proceedings.

Arbitration is also predictable. The timetable

is the crucial issue here. I shall refer to this is-

sue from my own perspective as a practitioner.

When a client approaches us, he usually has

two questions. The first obvious one is whether

the client will win or not, and what the chances

are in percentage terms. It is a very difficult

question but is always asked.

The second question, notwithstanding winning

or losing, is when? Let me go back to the time-

table as an instrument. Even if there are delays

in a given timetable, we are still able to tell the

client when we can expect the award, and out-

line the course of the proceedings for him, e.g.

when the statement of claim is going to filed,


PART I

when the answer to it is going to be submitted,

when the submissions will be filed and whether

the award can be expected in September or in

October. The planning of activities is important

to entrepreneurs and the timetable is a part of

such planning.

The fifth feature of arbitration is the most ob-

vious one, yet the one which is most often dis-

cussed. It is the question of confidentiality. I

think that it is particularly important to public

companies. I do not wish to concentrate on the

interpretation of legal provisions right now

because there have been many publications on

this subject. Suffice to say that the rules of all

arbitration courts contain confidentiality

clauses.

For the purpose of this debate, you have in

your materials a report which includes an es-

timate comparison of data. We have counted

the number of cases examined in institutional

courts and, on the basis of Dr. Stefanowicz’s

assumptions, we estimated the number of ad

hoc cases; we referenced it to the number of

commercial cases examined (such data are

available on the website of the Ministry of Jus-

tice) and it turned out that one-thousandth of

all the cases are tried under arbitration pro-

ceedings. Even if I got it wrong by 100%, that is

still only two-thousandths. The numbers are

shockingly small.

Therefore, I would like to pose a question.

What is the reason for this situation? If we take

into account the five features of arbitration, i.e.

that arbitration is liberal, fast, friendly, predict-

able and confidential, which I have already

mentioned, it would be a perfect tool for entre-

preneurs. Why are only one-thousandth of all

cases examined by arbitration courts? I think

that there are three issues we need to take into

account. First of all, there is no knowledge

about arbitration among lawyers and entre-

preneurs. The lack of knowledge on the part of

entrepreneurs is, in a way, more obvious. En-

trepreneurs are not obliged to know what arbi-

tration is all about and how to use it. The lack

of knowledge, however, on the part of lawyers

is an issue which is much more painful. We

have discussed with Mr. Bobrowicz the issue of

the lack of arbitration classes in the core cur-

riculum of the internship. Let’s ignore the issue

of universities because at the time of my stud-

ies, arbitration classes were optional. For a

practitioner, however, who is trying to prepare

himself to practice the profession, i.e. who par-

ticipates in an internship for legal advisors or

attorneys-at-law, it is crucial to have arbitra-

tion included in the core curriculum. I do not

have in mind very extensive classes. I think that

6 hours of classes in which the core and phi-

losophy of arbitration is explained would suf-

fice.

The second issue is the lack of procedural stan-

dards for the whole industry. Is the lack of

competence on the part of arbitrators a dis-

couraging issue? I mean the lack of competence

with respect to the technical side related to the

preparation of the arbitration proceedings. Ar-

bitration proceedings are carried out in cam-

era, and due to confidentiality issues, we can-

not really tell how the proceedings are carried

out by the arbitrators. The only circumstances

in which we can talk about such issues are con-

ferences or debates. I think that in our circles -

and by saying “our” I mean arbitrators - a feel-

ing that arbitrators play god in the proceedings

still lingers. I often come across the attitude of

arbitrators showing that they do not have to

make any effort to make the proceedings effi-

cient or to agree on timetables. They do not feel

this obligation. Yet, in fact, it is a service - very

well paid but still a service. I would like us to

discuss these issues today.


PART I

The third problem is the barriers arising from

the legal environment. I’m thinking here about

the relations between arbitration and public

courts in areas in which they come into contact.

The basic issue is a complaint to have an arbi-

tration award overruled. This will be the sub-

ject of the subsequent panel so I will not go into

details. Apart from the complaint as such, there

are some other issues which could be discussed

and properly regulated, such as the question of

corporate disputes. But this could, just as well,

be the subject of a different conference.

At the end I wish to touch upon the issue of

whether arbitration proceedings are cheap or

expensive. The issue of arbitration costs is very

often raised. I have drawn up a comparison of

court fees and fees collected at Lewiatan. I do

not think that such fees differ much in other

arbitration courts. Let us compare court fees

for the values 10,000.00, 100,000.00, 1,000,000

and 10,000,000.00. Please look at the bottom

line which shows in which areas arbitration

proceedings are more expensive and in which

they are cheaper. I have taken into account fees

from the beginning of the proceedings until the

obtaining of a final and absolute judgement,

which in the case of a common court is two in-

stances, and in the case of Lewiatan just one.

If we approach the issue from this perspective,

it will be seen that arbitration proceedings are

not significantly more expensive, and the

higher the value in dispute, the lower are the

costs of arbitration (see table). It is, however,

only one side of the story. We will arrive at a

different result if we add post-arbitration pro-

ceedings. Just a small digression here. On the

one hand, in a normative sense, an arbitration

award is equal to a decision of a common court.

On the other hand, an arbitration award may be

subject to appeal proceedings which are more

costly and time consuming. Obtaining a com-

mon court decision in the case of a claim with

the value of PLN 1,000,000 “costs” PLN

100,000.00, and obtaining an arbitration award

with respect to a claim of the same value costs

PLN 54,000.00. This could be the end of the

story. But often, as life teaches us, parties are

unhappy with a decision or an award and con-

tinue the dispute. We should then add the costs

of appeal proceedings pertaining to the final

decision, i.e. PLN 50,000. Finally, we would ar-

rive at the amount of PLN 150,000.00 with re-

Value in dispute (in PLN) 10,000.00 100,000.00 1,000,000.00 10,000,000.00

Court fee on the claim (propor-tionate fee: 5% of the value in dispute)

PLN 500.00 PLN 5,000.00 PLN 50,000.00 PLN 100,000.00

Court fee on appeal PLN 500.00 PLN 5,000.00 PLN 50,000.00 PLN 100,000.00

Court fees in total PLN 1,000.00 PLN 10,000.00 PLN 100,000.00 PLN 200,000.00

Arbitration fee - Lewiatan

(inclusive of administration fee)

PLN 1,500.00

(administration fee together with the arbi-trator’s remuneration)

PLN 9,100.00 PLN 54,100.00 PLN 126,100.00

Difference (court fee – arbitra-tion fee)

- PLN 500.00 PLN 900.00 PLN 45,900.00 PLN 73,900.00


PART I

spect to common courts and PLN 204,000.00 as

far as arbitration courts are concerned. Under

such circumstances, the arbitration proceed-

ings turn out to be more expensive, although

we have been very economical at the first stage

of examining the dispute.

To sum up, the issues discussed are very im-

portant when we analyze why arbitration

should be more popular and when we look into

the obstacles to such popularity.

Prof. Jerzy Rajski: Thank you Dr. Gessel. We

begin a discussion with the participation al-

ready declared by Dr. Marcin Dziurda, Mrs. Jo-

lanta Nowakowska-Zimoch, Prof. Ewa

Nowińska, Dr. Małgorzata Podrecka, and Dr.

Krzysztof Stefanowicz, so please take the floor

in that order and, subsequently, I will wait for

further volunteers to take part in our discus-

sion. Mr. Dziurda, the floor is yours.

Dr. Marcin Dziurda: Ladies and Gentlemen, to

begin with, I would like to make two reserva-

tions. First, despite Mrs. Gessel’s encourage-

ments, I will not discuss investment arbitration,

as I think it is rather commercial arbitration

that is the topic of our discussion. If we were to

talk about investment arbitration, my opinions

would be probably a bit different and, I do not

conceal it, more critical.

The other reservation is that I am here as a

member of a small group of people who might

be called clients. And it is from this point of

view that I will try to present some comments

in the timespan we have.

However, regardless of the foregoing, I do ap-

preciate that Mrs. Gessel has not specified the

sixth reason why economic arbitration is es-

sential, namely, that it is inexpensive. This

would be hypocrisy of a type. Arbitration is not

cheap. We can argue when it is expensive and

when very expensive, but one cannot say that it

is inexpensive, and especially when also takes

into account attorneys’ fees. We have to re-

member that, as we all know, attorneys’ fees

are actually at the level charged in developed

EU member states, which is out of proportion

both to the average remuneration, the gross

domestic product and other economic indica-

tors. This, in addition, makes arbitration rela-

tively more expensive for Polish entities than

for German, French or British ones.

As regards other opinions presented by Mrs.

Gessel, I share a substantial portion of the

same. However, I will begin with the issues

that raise my doubts. The time-efficiency of

arbitration is occasionally overrated. The spe-

cification drawn up by Lewiatan indicates that

arbitration proceedings are not so time-

efficient, and the long disputes referred to in

that specification are frequently over quite

simple matters. What poses a problem is the

fact that the duration of a particular arbitration

proceeding sometimes happens to be a matter

of chance. It cannot be concealed that this de-

pends, to a considerable extent, on arbitrators’

calendars, and on whether or not they manage

to agree on reasonable dates.

However, it is also clear that no generalizations

can be made in this respect, as there are both

methods of resolving disputes referred to arbi-

tration in a much cheaper and less time-

consuming manner and methods generally

more expensive and slower. Certainly, the role

of permanent courts of arbitration should be

appreciated. In my opinion, the predictability

of arbitration proceedings conducted by ad hoc

arbitrators is in itself highly questionable.

Moving on to the opinions I share, flexibility of

arbitration proceedings with their concurrent

predictability are absolutely a virtue. I appre-

ciate this more and more when comparing


PART I

court proceedings with arbitration proceed-

ings. Arbitration offers more discretionary

power of arbitrators over the course of pro-

ceedings, which, if used reasonably, that is, in

consultation with the attorneys and parties,

produces very good results. The so-called

terms of reference or other similar methods of

establishing the course of a proceeding are

most valuable. However, it should be also

borne in mind that, perhaps, we will live to see

the necessary changes taking place at common

courts. Prof. Ereciński and Prof. Weitz could

certainly elaborate on this. Draft amendments

to the Code of Civil Procedure have been drawn

up, which, if enacted, would partly make up for

certain deficiencies of court proceedings, such

as the filing of huge numbers of pleadings with

courts. If those projects were successfully

completed, common courts could draw upon

the achievements of arbitration. Undoubtedly,

such achievements are valuable. In the case of

major disputes, and in particular those con-

cerning infrastructure investments, arbitration

is more efficient. I will not talk about proceed-

ings in business matters and the two weeks

available to draw up a statement of defense in

response to a statement of claim drafted by the

plaintiff during an incomparably longer period

of time. Arbitration proves its value in such a

case, obviously provided that the arbitrators

act reasonably. Unfortunately, sometimes even

arbitrators seem to disregard the need to offer

to the parties equal treatment before the law,

and if the plaintiff had a number of months to

draw up its statement of claim, the defendant

might not be offered a month or two to address

the same.

The last issue is the confidentiality of proceed-

ings. This is a certain virtue, although it occa-

sionally poses a problem to the State Treasury.

It is worth bearing in mind that all public enti-

ties are governed by special regulations which,

usually, are much more stringent than those

applicable to private entities. For instance, the

relation between the Act on Public Information

Availability and the principle of arbitration

confidentiality is a continuous problem.

Summing up and to cut a long story short, I cer-

tainly agree that arbitration is almost always

friendly and quite often predictable. This is

something I am pleased to admit. Arbitration is

a good instrument to resolve major and com-

plex disputes requiring extensive proceedings

to take evidence, although I have an impression

that if the drafted amendments to the Code of

Civil Procedure were enacted, much could be

improved at the level of common courts. Arbi-

tration is quick on some occasions but it is by

no means cheap. There is one more point I

agree with, namely, that arbitration makes a

case more likely to end in a settlement, but this

is not a question of fees or attorneys but, in the

first place, of the understanding of the econom-

ic consequences to be borne by the parties. It is

a well-known fact that, sometimes, a prompt

case resolution is better, although not ideal,

than a lengthy dispute taking years. Thank you

very much for your attention.

Jolanta Nowakowska-Zimoch: Thank you. As

far as I am concerned, one issue was passed

over which is, in my opinion, the most impor-

tant one if we talk about arbitration. What I

mean is professionalism. What is essential to

the parties to an arbitration proceeding is their

right to appoint arbitrators. Selection and ap-

pointment of arbitrators should consist (and I

do hope that this is the case in practice) in con-

sideration by the parties of whom to appoint as

an arbitrator, while taking into account the ar-

bitrator’s knowledge and, in the first place,

his/her expertise in a given field. At present,

there is such a huge variety of problems, and

not only legal ones but also those in terms of


PART I

facts, that every reasonable attorney and party

who is to get involved in court or arbitration

proceedings have to consider which of those

institutions will guarantee a more professional

resolution of the case. I think that, given the

fact that courts are overburdened and judges

handle various civil or business law cases, such

judges can hardly be expected to have the ex-

pertise needed in a specific case. Therefore, it

is a standard practice for judges to use the as-

sistance of court experts.

In my opinion, we should strive to have a situa-

tion in which arbitrators appointed in specific

types of cases use the assistance of experts but

themselves have broad expertise in a given

field. I think that this is what guarantees a cor-

rect dispute resolution to the parties. There-

fore, I would not ponder over whether arbitra-

tion is liberal or flexible because this is a minor

issue. Arbitration should be, in the first place,

professional and this is the major virtue that

arbitration offers, or should offer, and that we

should propagate.

Another issue certainly relating to the liberal

nature of arbitration is the fact that parties may

choose to submit to arbitrators’ award issued

in equity. This institution seems to be still very

rarely used. We are all aware of its existence

but it is not actually known how it works and

how parties can make use of it. I think that,

given the enormous complexity of cases and

the complicated situation where business and

investment processes run fast and parties fre-

quently do not focus on gathering documenta-

tion, as a result of which they subsequently find

it difficult to attribute specific legal conse-

quences to specific facts, submission to arbitra-

tion in equity has a future.

I will not address the issues mentioned by the

preceding speaker, namely, the duration of ar-

bitration proceedings and whether such pro-

ceedings are expensive or inexpensive because,

I think, there is no controversy in this respect

and we all have a similar, if not identical, opi-

nion on this issue.

However, I would like to briefly address the

question why arbitration is actually hardly

popular. I think this is quite a simplified ex-

pression and, while law may be amended in a

relatively short period of time and compliance

with law enforced, mentality takes generations

to change. And it is both clients and lawyers

who are not used to the fact that arbitration

can be the first choice. The first choice is the

common court. This also originates in how

students are educated. Please note that when

we were students, and perhaps to this date,

lectures on and classes in arbitration had/have

been optional. It is already at this stage that

the focus of student education is on the fact

that there are court proceedings and some-

where in the background there is arbitration

which is merely mentioned. The same holds

true of the syllabus covered during advocate

and legal advisor training.

I think it will not be iconoclastic in any way if I

tell by experience that we devote a lot of time

to negotiating contractual provisions but when

it comes to the dispute resolution clause, which

is one of the last clauses to be drafted and

which is often drafted pretty automatically, we

sometimes do not have the time needed to dis-

cuss with the client the pros and cons of sub-

mission of disputes to common courts and

courts of arbitration. If we go for a court of

arbitration, then what court and why? I think

all of us here can beat our breast and say: we

devote too little time and thus we exercise

some educational influence over our clients

and colleagues.

The third issue is arbitrators. It is only recently

that we have been offered the opportunity of


PART I

participating in workshops and have been able

to learn by exchanging experience. For a long

time we have been learning by our own mis-

takes and experience, by exchange of expe-

rience among persons who acted or act as arbi-

trators. In my opinion, this, too, is one of the

reasons why arbitration is not so popular.

Thank you.

Prof. Ewa Nowińska: Thank you very much

for the invitation and an opportunity to take

the floor. A majority of the guests invited are,

according to my knowledge, academics that are

concurrently practitioners and, therefore,

please let my comments be of such a dual na-

ture. In the first place, the course of arbitration

is friendly to the parties. At least this follows

from my experience and stands in opposition to

common courts which either have too little

time or are unwilling to create the right atmos-

phere. When we enter the courtroom where a

common court is holding its session, our atti-

tudes become much more rigid than when we

enter the courtroom in which a court of arbi-

tration is examining a case. The atmosphere at

the latter court is also conducive to considering

the possibility of entering into a settlement.

Prior to litigation commencement the judge

asks a routine question whether the parties do

not see any chance of settling the dispute ami-

cably, and does not actually give the parties a

chance to say anything because it is pre-

assumed that they will fight each other, em-

ploying to that end various means, not always

acceptable from the ethical point of view, in-

stead of endeavoring to find room for an ami-

cable settlement of the dispute. However, ac-

cording to my experience gained at the cour-

troom in which a court of arbitration holds its

sessions, the parties are really encouraged

there to sit at a table and talk with or without

the assistance of the arbitrators they ap-

pointed, and either way, just try to negotiate.

And this is not a purely verbal encouragement

but, as already suggested by the preceding

speakers, an encouragement to resolve a dis-

pute in such a manner that, after a settlement is

executed, the parties are able to shake hands

and, possibly, continue their cooperation on the

market. And this is rarely the case after a dis-

pute is decided by a common court.

I represent a very narrow field of law, namely,

intellectual property law, which offers excep-

tionally ample room for international dispute

resolution in Poland. In this field, we have two

fundamental pieces of EU legislation equivalent

to regulation that provide for dispute resolu-

tion by Polish courts, namely the regulations

relating to EC trademarks and designs, the lat-

ter being called in Poland “industrial designs.”

In this respect, we have one court in Warsaw to

decide such cases, which, accidentally, does

that in a very professional manner. But this is

the only court having the relevant authoriza-

tion to do that. Perhaps, in this respect, there is

room for international arbitration.

Mrs. Gessel has brought up an issue that is ab-

solutely crucial, namely, the possibility of refer-

ring to the equitable principle before courts of

arbitration, which principle is so fundamental

for the practice of the administration of justice

in general, and which could be very useful for

courts of arbitration to resolve disputes or

reinforce something a little forgotten in Poland,

that is, the sense of justice. And this could sa-

tisfy the need to go to court not for “adminis-

tration of justice” but for justice itself, which is

not always the case with justice administered

by common courts. This is not a criticism of

common courts but a sad conclusion. This con-

clusion is drawn based on the following obser-

vation: common courts are indeed overbur-

dened with cases involving various fields of

law. If you read the court calendar in cases


PART I

heard, for instance, by the Supreme Adminis-

trative Court, you find both a case concerning a

resolution adopted by a housing cooperative

society and then a dispute involving legitimacy

of a decision issued by the Patent Office in a

case concerning protection of a pharmaceutical

invention. Really, the decision-making panel

has no chance to mentally “switch” from one

field of law to another, both of which are usual-

ly quite complex and require expertise.

Why are courts of arbitration not popular?

I think, at this point, we return to the issue

raised by both the preceding speakers, as stu-

dents are actually little taught about the possi-

bility of settling disputes in an amicable man-

ner, as well as, and this has to be borne in mind,

about the centuries-old tradition of – excuse

me the word – litigiousness. If we quarrel, we

go to court, unless “the court is what it is but

justice must be on our side,” as Pawlak’s moth-

er used to say in the movie Sami swoi (“Our

Folks”). The thought that comes first to the

mind of a Pole entering into a dispute is that it

is the court that will solve the problem for him,

and, normally, he himself does not even con-

sider a method of solving the dispute amicably.

And, once again, the problem of lawyers’ educa-

tion should be referred to: at present, there is

very little focus on persuading clients that they

had better mend fences as they live in a single

world and sometimes need to coexist despite

the dispute. Therefore, they had better leave

the courtroom reconciled, and reconciliation is

usually achieved through an amicable settle-

ment of the dispute. Even the word itself

sounds friendly, as in: I am settling the dispute

amicably, I am not quarreling, I do not unrea-

sonably insist on my arguments, although I cer-

tainly defend them. Perhaps if we, academic

teachers, focused more attention on causing

the common court not to be the first thought

that comes to mind when we enter into a dis-

pute, the subsequent generations of lawyers

would see the advantages offered by amicable

dispute resolution.

So far we have gained great experience as far as

the operations of the court of arbitration han-

dling Internet domain disputes are concerned,

which court actually examines a large number

of cases and, somehow, those who submit

themselves to it accept its awards even if they

lose the case. Certainly, this is not an uncom-

promising statement, holding true in each and

every case, but the time-efficiency of proceed-

ings before that court and the reasons to

awards that are formulated so that they are

comprehensible not only to a lawyer, show, and

sometimes even convince the losing party, that

it was the latter who failed to see to something

and this was the reason for the award issued.

And so we come to the last issue which, again,

has already been raised, that is, the statement

that arbitration allows the parties to appoint a

specialist or a person whom they trust. And

this, too, has a bearing on the courtroom at-

mosphere, as it is clear that the decision-

making panel is not composed of arbitrators

selected totally at random and bored with or

weary of the number of cases heard on a given

day. The decision-making panel gives their

attention to this specific case rather than to a

number of cases in turn. And the case is the

case of the day.

Summing up: the time has come to undertake

large-scale steps, and do so even through the

mass media, to make an attempt at presenting

our courts of arbitration as the procedural op-

tion which is, firstly, available and, secondly,

has a chance of being friendly to both parties.

Thank you very much.


PART I

Dr. Małgorzata Podrecka: If we talk about the

origins of arbitration, it should be noted that

the idea of arbitration is based on autonomous

will that allows the parties to select the venue

and the rules governing future resolution of a

dispute, if any. When making such a choice, the

parties expect that a dispute will be resolved in

a short period of time and by persons holding

the required qualifications, which are frequent-

ly of specialist nature, and, therefore, the ex-

penses incurred in order to resolve the dispute

will be reduced.

In the event that a dispute arises, the parties

frequently forget about those expectations;

dilatory practices are employed, legitimacy of

arbitration awards is challenged. This may

render arbitration proceedings ineffective and

thus lead to negation of all the principles and

virtues discussed by Mrs. Gessel. Efficiency of

such proceedings is impossible to be guaran-

teed by the institution called a court of arbitra-

tion, if the parties forget that the arbitration

clause was a result of their autonomous deci-

sion that should be respected. There is a link

between the “party’s expectations of the court

of arbitration” to whose jurisdiction the party

submits, of the arbitrators, and of the arbitra-

tion proceeding on the one hand, and the ex-

pectations of that party concerning its reason-

able conduct in the course of the proceeding

and voluntary performance of the award to be

issued by the court of arbitration (“expecta-

tions of the party”). Without the understanding

that those expectations represent two aspects

of a single phenomenon one can hardly talk of

any efficiency of arbitration. Development of

arbitration is conditional upon proper legal

culture required of all participants in such pro-

ceedings. Without this condition being satis-

fied, we can still talk about arbitration clauses

and they will operate, but at the moment an

actual dispute arises, arbitration may fail to

bring out the virtues that lie at the heart of ar-

bitration and to live up to the original expecta-

tions formulated by the parties.

If we talk about the practical advantage of arbi-

tration, I would like to say, as an in-house law-

yer for many years, that Polish companies be-

come more and more often parties to multila-

teral contracts incorporating commercial terms

and conditions, general terms and conditions of

cooperation, and principles of liability that are

established at the level of a corporation (parent

company) for a term of one year or even sever-

al years and binding upon a greater number of

subsidiaries having registered offices in vari-

ous countries, all of which are performing the

contract. In consequence, a number of legal

systems get involved, resulting in uncertainty

as to at which point a dispute may occur, by

whom and based on what rules it will be re-

solved. This uncertainty should serve as an

argument weighing in favor of arbitration.

When executing a contract and incorporating

an arbitration clause into it, the parties choose

all the virtues discussed by the preceding

speakers, namely, the predictability of venue

and rules governing resolution of a potential

dispute rather than the unpredictability, as

well as the professionalism of persons deciding

the dispute rather than the randomness which

may turn out to be the case.

It seems to me that, if we talk about the condi-

tions for further development of arbitration, it

is advisable to introduce courses in arbitration

or, in general, in alternative methods of dispute

resolution, into the syllabi covered during ad-

vocate and legal advisor training. Some institu-

tions conducting such training offer trainees an

opportunity to participate in such classes, nev-

ertheless, it would be advisable to introduce

those problems into the obligatory syllabus

covered as part of specific inn-of-court educa-

tion programs.


PART I

Furthermore, it should be pointed out that the

incorporation of the arbitration clause is not

the exclusive responsibility of an in-house law-

yer or a lawyer having a private legal practice.

It is the entrepreneur who assumes the risk of

choosing this method of dispute resolution. A

small or medium-sized entrepreneur is usually

aware of the fact that disputes are resolved by

common courts, the decisions of which may be

appealed against. A decision on selection of an

alternative dispute resolution method is fre-

quently something of a novelty and entails oth-

er risks, hence the entrepreneur needs to be

convinced that arbitration is efficient, indepen-

dent and thus benefits the entrepreneur.

Thank you.

Dr. Krzysztof Stefanowicz: I would like to

share with you my remarks on four issues,

namely, the two polemic comments made by

Dr. Dziurda, and the two more affirmative ones.

As regards the polemic issues, I would like to

say why I consider myself competent to ad-

dress the same in terms of the cost and time-

efficiency of arbitration proceedings. I had a

chance of becoming more familiar with a few of

the prominent cases given as examples of leng-

thy and exceptionally costly arbitration pro-

ceedings. If we examine those cases in more

detail, we will find that the decisive factor in-

creasing the cost and extending the duration of

those proceedings was the involvement of the

state. It was not the arbitration proceedings

themselves that were lengthy and it was not

the specific acts undertaken as part of the arbi-

tration proceedings that were delayed, but the

necessity of, and sometimes, unfortunately, the

provisions of law resulting in, state courts in-

terfering in all those cases, that caused the pro-

ceedings to be lengthy. In the “Vivendi” case

referred to as an example, the majority of the

lengthy procedures and most of the time taken

up by the proceeding was the consequence of

the inefficiency of Polish courts not only in

terms of time-efficiency but also in terms of

their inability to decide on simple, it could

seem, registration issues. Thus, in connection

with that proceeding, it turned out that mun-

dane, it would seem, registration problems

continued to have unresolved elements, but

this was an issue outside arbitration. As was

the case with the proceeding in which both of

us were involved, as Dr. Dziurda probably re-

members, where it was the inefficiency of

common courts, fortunately not Polish but for-

eign ones, not to mention the state authorities,

that made the arbitration proceeding lengthy.

If we consider the beginning of each arbitration

proceeding, that is, the question when we can

expect the first hearing to be scheduled, being

the fundamental issue in any discussions with

the client, every permanent court of arbitra-

tion, not to mention ad hoc courts, offers com-

plete predictability, and we do not talk about

months or even years of waiting for the first

scheduled hearing, as is the case with state

courts. And the sequence of the events that

follow certainly speaks in favor of the “reason-

able,” from the point of view of parties’ expec-

tations, duration of arbitration proceedings.

As regards costs, let us refer once again to the

table presenting the mode of proceeding and a

comparison of the arbitration court at Lewiatan

with state courts. The majority of expenses

result from the involvement of the state; we all

know what, unfortunately, became a measure

sometimes abused by parties’ attorneys, that is,

the petition to vacate award or the challenge to

appointment of arbitrators which is a measure

imported from common courts and which sub-

stantially increases the cost of arbitration pro-

ceedings. Not to mention the fact that, al-

though we can argue, though this is a separate

issue, to what extent this interference is rea-

sonable or unreasonable, all control or supervi-


PART I

sion procedures exercised by state courts over

courts of arbitration are a material cost-

generating factor. If we talk about the need to

request court assistance in undertaking specific

procedures either in Poland or abroad, it is

such procedures that generate a major portion

of the expenses.

Certainly, it is undoubtedly very easy to raise a

mediagenic charge, pointing out the fact that

the remuneration of state court judges is in-

comparably lower than that of arbitrators.

However, at this point, we probably encounter

the second issue which I would like to discuss

in a more affirmative manner and which has

already been raised by the preceding speakers,

that is, an equally fundamental benefit, an ad-

vantage of arbitration over state courts – and I

hope I will be correctly understood – an advan-

tage, in terms of quality, that arbitrators have

over common court judges. This advantage re-

sults from numerous reasons, or various ele-

ments combine to form it.

Certainly, the first element is the scale of busi-

ness transaction complexity. It is only natural

that we find it easier, if we have a very broad

spectrum of arbitrators to choose from, to se-

lect a person being a competent expert to re-

solve a specific dispute from among arbitrators

than from among state court judges. Thus, this

is an objective element.

The subjective element is associated with the

career path in legal professions. The situation

in this respect has been actually discussed and

contested for many years now but remains an

unresolved issue. If we compare, for instance,

the average age of judges employed by regional

courts, which are already intended to handle

more complex cases, and thus try to determine

the scope of their life experience, not to men-

tion their experience in the field of business,

with that of prospective arbitrators, the result

of such comparison will be unambiguous.

Judges will prove to be less qualified and will

have less ability to competently resolve a dis-

pute. That is, in terms of the quality of the hu-

man resources intended to handle disputes,

arbitration offers an opportunity of having a

dispute resolved and not just decided or, to use

boxing terminology, decided by the referee

raising the winner’s hand. Due to a number of

reasons we often learn about from research

findings, a state court limits itself to deciding,

and not solving, a case. But arbitration, thanks

to the quality of the human resources available,

provides an opportunity of having a dispute

actually resolved and offers the parties to the

dispute a chance of continuing their business

activities on the market. As a rule, arbitration

makes it more likely for the parties that they

will not get destroyed as a result of the dispute

between them but will stand a chance of con-

tinuing their business activity. In my opinion,

this is the major advantage that will continue to

be in place for many years. Undoubtedly, it

should be eliminated in the sense of improving

the quality of state court human resources, for

which probably still there is room, however, no

change in the proportions is, in principle, poss-

ible due to obvious reasons. To bring about a

situation comparable to that in the United

States, where the office of judge is the capstone

of a legal career, is a long way to go. For now,

arbitration and arbitrators appointed to re-

solve disputes undoubtedly offer a greater

chance of competent dispute resolution than

state courts.

The last issue referring to the title of this part

of our panel discussion is the ideological ori-

gins. And it is this problem that relates to the

polemic issues. This is my very subjective opi-

nion. It seems to me that arbitration should be

viewed also from the perspective of the over-

simplified and probably many times criticized


PART I

opinion that the less the state is involved, the

better for the economy. If we talk about eco-

nomic disputes and allow for resolution of such

disputes without involvement of the state but

with a substantial and active involvement of

the parties, then, I think, the ideological origins

and the virtues found in this aspect of arbitra-

tion undoubtedly deserve more attention. At

this point, I admit that, as far as amendments, if

any, to the Code of Civil Procedure or rules of

permanent courts of arbitration are concerned,

they should be conducive to such develop-

ments. I would be very wary of regulations

that would permit a broader scope of interfe-

rence by or a broader scope of powers to su-

pervise arbitration vested in state authorities

or courts, so that this material virtue of arbitra-

tion could be preserved. And, as practice

shows, restriction of economic freedom or at-

tempts to influence the free market, even if fa-

vorable, usually bring about adverse conse-

quences. Therefore, I think that if we take this

axiological component of arbitration into con-

sideration each time an amendment to the law

is intended, all the virtues discussed before can

be retained.

Prof. Jerzy Rajski: Thank you very much. We

could hold this interesting discussion all day

long but, unfortunately, the event organizers

gave us only half an hour, so I invite several

speakers, giving five minutes to each, and

would appreciate it if you could give me also

five minutes for a brief summary, though I

would not despair if those five minutes are not

left for me in the discussion.

Ireneusz Matusiak: I would like to address

the issues raised by Dr. Gessel, that is, the rea-

sons why arbitration is indispensable. Arbitra-

tion is by no means homogenous and, perhaps,

this is an asset. Why is it not homogenous?

There are here, in this room, a number of per-

sons representing small courts of arbitration,

that is, small in terms of the number and scope

of the cases they handle. I dare to say the

statements alleging that arbitration is unpopu-

lar are controversial. In a small court, and I am

talking here about the arbitration court han-

dling disputes over Internet domains, arbitra-

tion is popular. Why?

Firstly, I would provide reasons to complete

those enumerated by Dr. Gessel. Arbitration

addresses a dispute on its merits. Parties are

interested in resolution of Internet domain dis-

putes because they know that other courts -

that is, I mean common courts here – do not

have specialists in this field. Hence, when re-

ferring a dispute for resolution to a court spe-

cializing in this field, they know that the dis-

pute will be best examined. Thus, it seems to

me that such arbitration addresses the sub-

stance of a dispute, which is the first reason

why entrepreneurs choose it.

I would also point out reasons 7 and 8. In the

first place, if we talk about time-efficiency, I

would like to mention that arbitration makes

use of new technologies. In the court referred

to above, proceedings are conducted with the

use of e-mail, and a hearing is not always held.

The parties are medium-sized entrepreneurs

without substantial financial resources to con-

duct long proceedings and participate in hear-

ings. A solution of this type is impossible to be

implemented in the case of any other dispute;

in this case, however, it is favorable to entre-

preneurs, arouses more interest and results in

the dispute being resolved within a short pe-

riod of time.

And, finally, the last issue which is also of signi-

ficance: arbitration shapes legal awareness of

the society. At this point, I mean the informa-

tion society. Selected awards issued by the ar-

bitration court handling Internet domain dis-

putes are made available on websites. Thanks


PART I

to that, entrepreneurs intending to enter into a

dispute learn beforehand what the rules are,

whether they can protect their rights and what

the consequences of an issued award are.

Those three elements contribute to the popu-

larity of arbitration. The fact that there are

small courts of arbitration is a good feature of

the entire arbitration system, though while

talking about arbitration, we usually mean cas-

es of great importance. I would like to emphas-

ize that these are the elements that prove their

usefulness at the micro level. Thank you.

Dr. Marcin Dziurda: I would not like in the

least to argue with Mr. Stefanowicz, as we do

not have enough time for that. Besides, I am

very glad that Mr. Stefanowicz made a com-

ment on what I had said and he would probably

be surprised if he knew that our opinions on

many issues were even alike.

However, I would like to repeat the reservation

I made at the beginning: I was not talking at all

about investment arbitration, as this was quite

a separate issue. But, to give an example, if we

have a simple dispute over a relatively small

amount of money and the most prominent arbi-

trators in the world are appointed to resolve it,

we should not be surprised that the first date of

hearing they are able to schedule falls in a year

time. Or if we have an arbitration proceeding

conducted pursuant to the ICC rules, held in

Paris, in English, and the case is handled by

Polish attorneys and Polish arbitrators, then I

am pleased to hear that some entrepreneurs

are reasonable enough to suggest, for instance,

that the venue be changed to Poland and the

language to Polish. And, at this point, I agree

with Mrs. Nowakowska that when it comes to

negotiating the arbitration clause, it is often the

case that no time is left for consideration, and

the result is frequently absurd and inconsistent

with the idea of time-efficient arbitration.

Prof. Aleksander Chłopecki: I would like to

point out yet another reason why arbitration is

not so popular, a reason affecting the relations

between a financial institution and its client,

and being a notorious one. The majority of fi-

nancial institutions make the following as-

sumption: we have a legal department, we have

lawyers and our adverse party is our client

whose financial resources, time availability, etc.

are limited. We will be better off just dragging

him through common courts and all their in-

stances with all the formal restrictions this en-

tails. Perhaps we will scare him off before he

puts up resistance. That would be much more

convenient for us than to consent to arbitra-

tion. And, to make it clear, this is not part of my

idea of the real life but part of my analysis of

the actual situation.

As regards the cost of arbitration, to make the

matter not so nice, we have to address the fol-

lowing issues: if we talk about ideological prin-

ciples, then should arbitration be a business

and if so, to what extent? Please note that a

major portion of arbitration procedures are

business activities. In the case of the court I

have the pleasure to represent, special regula-

tions are in place, providing for asymmetry of

expenses. Expenses borne by the institution

correspond more or less to those borne in

common court procedures. However, in rela-

tion to the institution’s clients, these expenses

are totally disproportional, as their amount is

limited to several hundred Polish zlotys.

Therefore, we should perhaps consider a cer-

tain modification to and stratification of the

costs of arbitration, depending on the entity, its

financial condition, etc. This is something that

is missing from many arbitration institutions.

And two more minor issues: as regards the first

one, I will talk about myself not to offend any-

one – while acting as an arbitrator, I sometimes

feel the need for some kind of introspection.


PART I

This need is manifested, more or less, in the

following question: I shall decide as my know-

ledge best allows me, according to the dictates

of my conscience, etc., and the introspection is

intended to determine whether and to what

extent I feel any obligation towards the party

who appointed me as an arbitrator. I am mak-

ing money acting in this capacity. This is a psy-

chological burden of which an arbitrator

should be constantly aware, even if he/she is

totally independent.

Dr. Zbigniew Banaszczyk: I would like to

note that I will present my opinions from three

points of view simultaneously because I am a

theorist, a practitioner, and an arbitrator at the

same time. Therefore, I view the matter from

three different angles. I would like to address

some of the preceding statements. To begin

with, Mrs. Gessel pointed out five properties of

arbitration. Subsequently, it turned out that

there were more such properties. Mr. Dziurda

perhaps correctly started with a statement that

arbitration was not cheap. Let us say: from the

point of view of the office represented by Mr.

Dziurda, every court which is not a common

court is “expensive.” This is beyond doubt, ac-

tually. And, indeed, I agree that arbitration is

not cheap but it is not cheap because the par-

ties so decided. In exchange for the high cost,

the expenses that need to be borne, arbitration

offers what was called here dispute considera-

tion on its merits or professionalism. And this

is not professionalism juxtaposed with a lack of

professionalism found with common courts.

That is not the point. The professionalism is

actually the one chosen by the parties. They

incorporated into the contract they executed an

arbitration clause providing for dispute resolu-

tion by an ad hoc or permanent court of arbi-

tration, and specified that they would be per-

mitted to appoint persons being the best arbi-

trators from their respective points of view.

And those points of view can differ substantial-

ly. In the first place, the appointed arbitrators

should be specialists in a given field and not

necessarily in any field of law. Even a perma-

nent court of arbitration allows for appoint-

ment of a person from outside a list of arbitra-

tors. Such a person will not even be a lawyer

but will have the capacity to correctly examine

a dispute. This is a virtue that should be sought

by entrepreneurs but of which they are fre-

quently not aware. And here there is room for

lawyers to bring it to their attention that there

are such options. And, perhaps, this is the price

that has to be paid in order not to have an

award issued by a randomly selected judge of a

common court, by saying which I do not mean

to offend any such person, and what I mean by

“selected at random” is that such a judge is ex-

amining a case just because he/she was blindly

appointed to do so. This is an ineptness of the

common court, manifested in the fact that a

judge is sometimes forced to decide a case

which is somehow beyond his/her skills. Al-

though, thanks to their qualifications, judges

can quickly acquire such skills when a need

arises, and I saw many times common court

judges remarkably well prepared to handle

cases requiring expertise, this is by no means a

rule.

Another issue that I would like to discuss is the

fact that a common court usually does not offer

time for lawyers to have a debate. A court of

arbitration offers such an opportunity. Some-

times I am surprised that attorneys of the par-

ties do not attempt to discuss before the court

the disputed issue purely in terms of its sub-

stance, as part of a direct debate held in a very

friendly atmosphere.

Tomasz Wardyński: I think too much time is

devoted here to discussing the technicalities of

arbitration. At its onset, a dispute is a psycho-

logical phenomenon. Arbitration is, by its very


PART I

nature, a solution intended not for litigious

people but for people actually seeking a rea-

sonable solution to a problem they encoun-

tered while carrying out business activity. Na-

turally, we assume that a businessman makes

reasonable decisions.

I do not know whether arbitration is expensive.

It can be expensive but if the parties manage to

quickly reach an agreement and recognize the

arbitration award as correct, it can also be in-

expensive.

Unfortunately, a lot depends on the legal cul-

ture, as well as on compliance with the prin-

ciples of deontological ethics that form a basis

for attorney’s acts. Arbitration becomes ex-

pensive when abused in order to act in a liti-

gious manner. And it is very often the case that

such a litigious attitude is shared by parties’

attorneys. What is more, it seems to me that

attorneys of the parties frequently consider the

arbitrators to see only one half of the facts.

Nevertheless, I think that if an arbitration pro-

ceeding is correctly handled both by the attor-

neys of the parties and the arbitrators, there is

a real chance of making arbitration inexpen-

sive. However, one should bear in mind that

the expenses we are talking about here, the

noticeable ones, represent only a small portion

of the overall dispute cost. The true cost of a

dispute is the mental energy and the time de-

voted by the parties to resolve the same and

handle it correctly, so that their rights could be

effectively protected.

The fundamental question to be asked is as

follows: is it easier to abuse litigation proce-

dures before common courts or before courts

of arbitration? In my opinion, a relatively rea-

sonable handling of a dispute by arbitrators

can prevent abuse of arbitration procedures by

people who think that, as Prof. Nowińska said,

“the court is what it is but justice must be on

our side.”

I also think that the psychological phenomenon

in the form of a dispute makes us realize that

the decision we take as attorneys, participants

in a dispute, whether being natural persons

carrying out business activity or a company, in

the end needs to be a decision which is, in the

first place, reasonable. In the end, everything

boils down to simple arithmetic and the parties

need only to be shown how to reduce the frac-

tions which initially posed such a complex

problem.

Prof. Jerzy Rajski: Thank you. Instead of

summing up the discussion, I will only say a

few words because many conclusions should

be drawn from this interesting discussion but,

unfortunately, we do not have time enough to

do so. Thus, first of all, I would like to point out

a feature not enumerated so far among those

that can represent fundamental properties of

arbitration, that is, I would like to emphasize

the perfect harmony between the contractual

nature of a dispute and the contractual method

of solving the same in arbitration proceedings.

That symmetry contributes to the creation of

the atmosphere, also the psychological one,

mentioned by Mr. Wardyński.

Substantive law allows the parties to shape

their contracts as they wish, to the extent per-

mitted under law. It is an indisputable advan-

tage that the legal system also gives the parties

the freedom to answer the fundamental ques-

tion as to what procedures should be employed

to resolve disputes that may arise as a result of

the contractual relation they established. The

contractual nature of dispute resolution under

arbitration proceedings is of considerable im-

portance here. It is of importance, inter alia,

due to the fact that it is the parties who make a


PART I

decision as to who and how will resolve a dis-

pute.

Thus, the parties remain deeply convinced that

the course of the proceeding depends on the

choice they make, as it is a generally recognized

principle that the quality of arbitration is de-

pendent upon the arbitrators. And by whom

the arbitrators are appointed? By the parties.

One could quote Molière here: “vous avez vou-

lus.....” – you have arbitration of the quality you

wished for yourselves. And this is also a virtue

of arbitration, in addition to those referred to

by the preceding speakers. Undoubtedly, pro-

fessionalism is a praiseworthy property among

the other virtues. In today’s very complex

business world and the corresponding complex

juridical structures, a lawyer is required to

have ever broader knowledge, which some-

times entails the necessity to acquire expertise

that common courts are unable to offer, since,

as their name itself indicates, they have to en-

sure administration of justice of a generally

acceptable quality, whereas arbitration allows

for higher requirements to be set in this re-

spect and permits their satisfaction through

selecting and appointing arbitrators having the

required expertise.

And, finally, as far as the other properties re-

ferred to are concerned, that is, time-efficiency

and cost-effectiveness, the latter is not always

the case, but this is somewhat similar to the

idea of a cheap state. If we want to have a

proper arbitration proceeding of a superior

quality, comprising the relevant components

that make it possible to examine a case tho-

roughly and devote to it the required effort

within a compacted period of time, that is,

without interruptions resulting from reasons

other than those related to the case, which is

time-efficient and which addresses the sub-

stance of the case and ends in an effective reso-

lution of the same, such proceeding does not

necessarily have to be inexpensive.

The question of axiology, the virtues on which

the concept of arbitration is built, was also

raised but, as you noticed, those virtues were

instantly reduced to the financial aspect of ar-

bitration and much attention was paid to the

cost of arbitration proceedings. But, returning

to the virtues displayed by arbitration, the idea

that was discussed, namely, the admissibility,

the option of dispute resolution based on the

equitable principle, is worth pointing out. The

fact that, unlike the state court, the court of

arbitration is not strictly bound to abide by the

letter of the law but has some freedom of deci-

sion when construing provisions of law and

applying the same, of course within the limits

permissible under the public order clause, is a

great virtue. If only for this reason, it is easier

to seek justice at a court of arbitration. Thank

you.

Arbitration and the need for legislative changes Has the time come for a change in the model of the

application for setting aside an arbitral award?

Panel Moderator: Prof. UW Dr hab. Karol Weitz

Introduction by: Bartosz Krużewski Panel Participants: Prof. Tadeusz Ereciński, Prof. Aleksander Chłopecki, Ireneusz Matusiak,

Dr Beata Gessel-Kalinowska vel Kalisz, Prof. Jerzy Rajski, Dr Rafał Morek, Barbara Grabowska, Paweł Pietkiewicz


PART II

Prof. Karol Weitz: Welcome ladies and gen-

tlemen. Theme II of the panel is the issue of

an evaluation of whether normative changes

are necessary. The focus for the discussion

in this respect is the issue of an application

for setting aside an award of a court of arbi-

tration and its normative model. As the topic

is very interesting and may lead to a very

lively discussion, I will stop speaking now

and give the floor to counsellor Krużewski,

who will lead us into the discussion.

Counsellor Bartosz Krużewski: Thank you

very much, Professor. Ladies and gentlemen,

a word by way of introduction: the topic of

the presentation is perhaps somewhat ambi-

tious. I will not be speaking about the appli-

cation model as such, first of all because

such model – in the form it has taken today –

is good and does not require change. On the

other hand, I will be speaking only about an

aspect which is undoubtedly difficult to clas-

sify, even as an application model, namely

the issue of instances in proceedings. I sub-

mit my thesis straightaway: I believe that the

time for change has arrived.

It seems to me that at this stage of the de-

bate we can make a certain assumption that

it would be good if arbitration were more

attractive. If I may sum up this morning’s

statements in three sentences. Firstly, it

would be good if it were more attractive as it

has advantages for the parties to the pro-

ceedings, in any event for some of the parties

to the proceedings.

Secondly, it would be good because it would

also relieve commercial courts as an alterna-

tive means of resolving disputes. Dr. Gessel

gave the figures. For the moment these are

very modest figures. On the other hand, we

know just how burdened the commercial

courts are. It would be good if more cases

went to arbitration.

Thirdly – and Dr. Szpunar in turn spoke

about this – there exists a certain link be-

tween well functioning arbitration and the

general well-being of the State and society.

Studies have appeared which point, for ex-

ample, to the link between well functioning

arbitration centres and an increase in GDP

(Gross Domestic Product) of States. Of

course, let us be realistic: we will not in-

crease Polish GDP by 1% or 2% just because

a good international arbitration system is in

operation. Nonetheless, whilst retaining a


PART II

certain sense of proportion, this connection

does exist on some level. I think that the

third panel will be also devoted to this. I

would merely point out to you that, for ex-

ample, not long ago in the ICC a battle took

place behind the scenes as it were about

whether the ICC will move out of Paris or

not. Its chairman, John Beechey, played it

like a poker player: he said that it would

move out of Paris if it does not receive a bet-

ter head office and a couple of other things.

It is an open secret that it received very good

offers from Vienna and a city in Switzerland.

Ultimately, Paris made an effort for the ICC

to stay in Paris, which is empirical proof that

there is a connection between well-being,

prestige for the State and society, and a well

prospering arbitration centre.

Of course, one can make arbitral proceed-

ings more attractive by looking at the two

sides of those proceedings: from start to fin-

ish arbitration is a hybrid proceeding: on the

one hand, we have proceedings before a

court of arbitration, on the other hand - pro-

ceedings before a common court. To be per-

fectly clear, I am one of those who believe

that there is a lot to be done as regards the

first side (the side of proceedings before a

court of arbitration). Despite the fact that I

am a great supporter and user of the court of

arbitration, I believe there is much to do and

this morning’s discussion was very lively.

However, I have been asked to take a look at

the other side of the coin, that is proceedings

before a common court. What has an influ-

ence on attractiveness in proceedings? Of

course, it seems that first of all the quality of

the court decisions, secondly the waiting

time for a decision to be handed down,

thirdly - costs. It is also obvious that a cer-

tain tension appears between quality on the

one hand, and speed on the other. Speed can

also be understood to be a factor which in-

fluences the attractiveness of proceedings.

Quality is guaranteed by the State by way of

judicial supervision over the awards of

courts of arbitration, and it is very good that

it is like that. Traditionally the State has a

certain mistrust with regard to the private

manner of resolving disputes which arbitra-

tion is, hence other applications and other

means of challenging awards, though of

course their grounds are very limited.

Bearing these tensions in mind, I would like

to put forward the thesis that the exercise by

the State of judicial supervision over the

awards of courts of arbitration should be

shortened as regards the various instances.

To use a popular, though not very elegant

word, they should be ‘compressed’ so as to

increase the attractiveness of arbitration,

but without detriment to the quality of that

supervision.

To justify this thesis I would like to very

briefly look at two issues. First of all, I would

like to go through the models of instances

which appear in other European jurisdic-

tions. Secondly, I would like to very briefly

summarize a debate which has been going

on for some time now about whether in Po-

land it is possible to shorten – for constitu-

tional reasons or other reasons – the num-

ber of instances of arbitral proceedings. Of

course, as you know, in Europe and else-

where there are various means of challeng-

ing arbitral awards; these are not only appli-

cations but also various types of actions for a

declaration of the invalidity of an award, or

the existence and non-existence of an award.

For the purposes of brevity, I will be using

the word ‘application’. The common feature

of the majority of these European proceed-


PART II

ings is that the court rather does not exam-

ine an award on the merits, but can merely

set it aside for the reasons listed it the statu-

tory act.

Let us begin with those States where the

proceedings are the shortest. At the moment

there are two such States: Bulgaria, and

above all Switzerland. If we are speaking

about the ‘giants’ of arbitral proceedings,

then Switzerland is undoubtedly one of

them. The Swiss model is that of single-

instance proceedings, with a character simi-

lar rather to an appeal, challenge measure or

indeed an extraordinary challenge measure.

Switzerland is very interesting because it

makes this single-instance judicial supervi-

sion its great virtue and boasts about it, uses

it to advertise itself, uses it to attract arbitral

disputes to Switzerland. According to statis-

tics for 2007 of the ASA (Swiss Arbitration

Association), the average duration of pro-

ceedings from the moment of filing an appli-

cation to its being examined by the Federal

Supreme Court of Switzerland is 5 months.

We also have one jurisdiction where pro-

ceedings are also single-instance but con-

fined to the court of second instance; we also

have one jurisdiction (Hungary) where pro-

ceedings are confined to two instances with-

out an extraordinary cassation measure.

Country

Proceedings

before court

of first in-

stance

Proceedings before court of

second instance Proceedings before the Supreme Court

France - Court of Appeal (Cour d'Appel) application to Court of Cassation (Cour de

Cassation)

Greece - Court of Appeal application to Supreme Court

Lithuania - Court of Appeal application to Supreme Court

Germany - Higher National Court

(Oberlandesgericht)

application (Rechtsbeschwerde) to the Fed-

eral Court (Bundesgerichtshof)

Romania - A court of higher instance than

the court which would have had

jurisdiction for resolving the

dispute had the parties not con-

cluded an agreement for adjudi-

cation by a court of arbitration

application to Supreme Court

Sweden - Court of Appeal application to Supreme Court (admissible

upon the consent of the Court of Appeal only

in matters of a precedential nature)

Italy - Court of Appeal Court of Cassation


PART II

We have a further large group of States which

are particularly interesting, where judicial su-

pervision is confined to proceedings before the

court of second instance, i.e. the measure - or

application (however we call it) - is sent di-

rectly to the court of second instance, the

equivalent of our court of appeal, with an ex-

traordinary measure of appeal to the Supreme

Court.

It is worth noting that these States include

France, Germany and Sweden - giants of arbi-

tral proceedings. In Sweden in particular you

are undoubtedly familiar with the Svea court of

appeal, which very often appears in publica-

tions. This may create the impression that in

Sweden there is one court of appeal

designated for receiving all applications. But

that is not the case. As I understand it, an appli-

cation is sent to the court of appeal which has

geographical jurisdiction but in view of the fact

that a clear majority of arbitration cases are

located in Stockholm, it is precisely the court of

appeal that examines those applications.

We have another group of States which have

the same model as in Poland, as adopted in our

system, that is full two-instance proceedings

with an extraordinary measure of appeal to the

Supreme Court. One should take note here of

England which does not entirely fit this model.

As you know, already at the level of appeal one

could engage in a discussion as to whether this

is an ordinary or extraordinary measure of ap-

peal in view of the fact that there is a need for a

Country Proceedings before court of

first instance

Proceedings before court of

second instance

Proceedings before the Supreme

Court

England High Court appeal to the Court of Appeal

admissible only upon the con-

sent of the court (leave for ap-

peal)

appeal to the Supreme Court admissible

only upon the consent of the court

(leave for appeal)

Austria National Court (Landesgericht) Higher National Court (Oberlan-

desgericht)

Supreme Court (Oberster Gerichtshof)

Belgium court of first instance which

would have had jurisdiction

for resolving the dispute had

the parties not concluded an

agreement for adjudication by

a court of arbitration (Recht-

bank van eerste aanleg)

Court of Appeal (Hof van

beroep)

Supreme Court (Hof van Cassatie)

Czech

Republic

court of first instance which

would have had jurisdiction

for resolving the dispute had

the parties not concluded an

agreement for adjudication by

a court of arbitration

relevant court of second in-

stance

Supreme Court

Finland court of first instance with jurisdiction as regards the place of issue of the award

relevant court of second in-stance

Supreme Court

Holland court of first instance with jurisdiction as regards the seat

of arbitration

relevant court of second in-stance

Supreme Court


PART II

leave for appeal and certain elements which

must be shown for extraordinary measures. Of

the States which are also giants in arbitral pro-

ceedings, Belgium and Holland have such a

model.

That would be all as regards the various in-

stances. A few words now about other ele-

ments which also have an impact on the dura-

tion of proceedings, and thus on the attractive-

ness of proceedings. Firstly, in certain jurisdic-

tions parties may exclude an application. This

is the case in Switzerland. That is also how it is

in Belgium and Sweden, with the difference

that there is the condition that the parties be

not ‘local’, i.e. they do not have their seats re-

spectively in Belgium or Sweden.

A further element which has an impact on the

duration of proceedings is the deadline for fil-

ing an application. Here a clear majority (we

are by no means an exception here) of jurisdic-

tions provide for a deadline of 3 months, which

seems to be quite a long deadline, but it is pro-

vided by the model law. England provides for

28 days, Switzerland 38 days, in France in cer-

tain cases it is 30 days, and in Spain – 2 months.

Finally, the last element which has an impact

on the length of proceedings are the links be-

tween the application and proceedings aimed

at declaring enforceability. I would merely

point out here that in certain States an award

of a court of arbitration, at the moment it is

handed down, has a force equal to decisions of

common courts, i.e. there is no need to go

through the proceedings for a declaration of

recognition of enforceability. This is the case,

for example, in Austria. If we compare it to the

Polish regulation, then a quite obvious conclu-

sion emerges that in the Polish system we have

a full range of ‘judicial’ safeguards. We also

have all the elements which have an impact on

the length of proceedings, on prolonging those

proceedings: two-instance proceedings, cass-

ation, three months to file an application, the

institution itself of the application cannot be

excluded by contract, and then there are the

two-instance proceedings for a declaration of

enforceability or on recognition.

That would be as much by way of legal com-

parison. Now, some brief remarks about the

arguments for and against limiting the variety

of instances in Poland. As you know, a debate

has been underway for some time now as to

whether such a ‘compressing’ is possible. The

debate revolves around constitutional prob-

lems, in particular art. 176 of the Constitution,

which states that court proceedings are at least

two-instance proceedings. Sometimes this de-

bate also involves art. 78 of the Constitution,

which in turn states that each of the parties has

the right to challenge judgments and decisions

handed down in first instance. It seems that

one should confine oneself to art. 176; art. 78

concerns more the issue of appealing capacity

than the issue of instances.

The level on which these arguments clash is the

dispute about the character of applications. Of

course, here in this room there are outstanding

representatives of the doctrine. I am not a con-

stitutionalist and I am not going to extensively

summarize all the arguments – rather I will say

just for your information and to prepare the

debate (and I think this is the dominant voice

of the doctrine) that an application has ele-

ments of both an extraordinary measure of ap-

peal and elements of an action aimed at shap-

ing changes in the legal state caused by a arbi-

tral award, i.e. a legal action with a litigation

character. In that situation, an application is

not a measure of appeal.

Why is this important? As I understand it, it is

important because with this approach it is said

(and this is an argument against compressing


PART II

proceedings) that instance-structured proceed-

ings being with an action or a type of action

which the application is, in view of which the

two-instance structure must be retained: court

of first instance and court of second instance.

On the other hand, there are voices in the doc-

trine which say that this is not so. An applica-

tion is, all the same, a measure of appeal, and

not an action. The arguments which are cited

are more or less as follows: the purpose of this

measure is to exercise supervision over an act

of a litigation nature, which the legislator - not

without reason -defines as an ‘award’. The pur-

pose of this proceeding is to set aside an award.

It is not a matter in this proceeding to directly

decide on the legal situation – an award in itself

without a declaration of its enforceability does

not shape the legal situation of the parties, but

the court is merely to decide about the fate of

the appealed award. Thus, the subject of those

proceedings is not a resolution of the arbitra-

tors as to the merits but merely a proceeding

on the award. An additional argument cited by

the supporters of this concept is the argument

derived from art. 1209 of the Code of Civil Pro-

cedure, namely the institution of remission,

that is the possibility for a common court to

remand an award of a court of arbitration for

renewed consideration. It is said that it is in

essence a mechanism adapted to arbitration,

typical for measures of appeal, remanding a

case for renewed consideration.

Apart from constitutional arguments, also cited

are arguments of a practical nature. It is said

that at this stage of development the quality of

arbitral decisions in Poland is mixed. There are

institutions which are very renowned, arbitral

institutions, but many permanent courts of ar-

bitration still function which are of doubtful

reputation. But also awards are issued ad hoc

which require special judicial supervision.

Finally there is the argument against concen-

trating the application in the first instance in

one court of appeal on the assumption that a

shortening of instances would take place. It is

said that in that case a limitation of the rights

to court could occur if it were territorially one

court and the parties would have to travel from

different parts of Poland.

To conclude: in my opinion, in order for arbi-

tration to represent a genuine alternative to

court proceedings, regardless of the work on

that first part about which I spoke (i.e. arbitral

proceedings themselves), one should remove at

least one instance in judicial proceedings. I am

in favour of the option that an application be

sent directly to the court of appeal and that

cassation be retained. I am not a constitutional-

ist but as a practitioner I have doubts as to

whether there really exist constitutional obsta-

cles. In support of that thesis I would cite the

decisions of the Constitutional Tribunal, con-

troversial and not in these cases, concerning

disciplinary matters concerning cases involving

unfair competition where the Constitutional

Tribunal gave certain guidelines nonetheless.

First of all, it stated that the constitutional

principle of two instances is not directly an

element of a guarantee of the right to court.

Secondly, it pointed out that the obligation of

the legislator to respect the principle of in-

stances relates to those cases which from start

to finish are examined by courts. This is a

phrase which we could undoubtedly debate

about all day. Nonetheless, the Tribunal

pointed out that the principle of two instances

does not concern cases which are only sub-

jected to final supervision on the part of courts,

where they belong to the competence of other

bodies. To be honest, it should be added that

the Constitutional Tribunal made – it would

seem – a proviso, namely insofar as proceed-

ings before a court do not have the features of


PART II

one-instance proceedings. In my opinion, pro-

ceedings from an application decidedly do not

have such features.

Thus, in reply to the question put by the organ-

izers as to whether the time has arrived for a

change in the application model, I say: yes, the

time has arrived, though in a very limited

scope. In my opinion, in the remaining scope

the application works well, which of course

does not close the debate regarding other fea-

tures of that model. But in the scope of the va-

riety of instances of proceedings, there is time

for a change. Thank you very much.

Prof. Karol Weitz: Thank you very much

Counsellor for a very detailed and interesting

presentation of certain aspects concerning an

application for setting aside an award of a court

of arbitration in the context of a legal compari-

son. Thank you also for the clearly presented

thesis. I think that this will be the starting point

for the discussion. Of course, I now invite you

to take part in the discussion. I will now give

the floor to Prof. Tadeusz Ereciński. Please go

ahead.

Prof. Tadeusz Ereciński: The previous

speaker’s talk was excellent – in a short talk

you presented very objectively the problems

surrounding the application. Indeed it took

away my arguments as I expected that you

would be more committed to presenting evi-

dence to the effect that this application should

be liquidated altogether. Such voices could be

heard at the time when provisions were being

introduced which amended the arbitration

regulation in 2005 – why do we need an appli-

cation for setting aside at all - arbitration

should itself function without supervision from

the judicial decisions of State courts. Thus, I am

pleased that I can decidedly subscribe to such

approach, i.e. that arbitration should not be

competition for State courts. It has its place,

which I see above all in those specialist areas

about which there was mention on the one

hand, while, on the other hand, in large interna-

tional disputes where above all one avoids

State courts in view of the courts’ natural ten-

dency to prefer the party coming from the

same State as the court. I would like, however,

to return to what Prof. Rajski said, to a certain

ideological character to which one should re-

turn in arbitration.

This feature of an ideological character to

which I would like to refer is that when decid-

ing on arbitration, the parties to a large extent

should be aware that they consent to a volun-

tary enforcement of the award. This is the first,

original feature of arbitration. Arbitration has

its virtues: a choice of arbitrator in whom we

have confidence, thus we should consent to

voluntarily enforce the award. If one does not

do that and one begins to avail of all the possi-

bilities offered by legal measures related to

supervision by the State of arbitral awards,

then pathological situations begin to emerge.

And why must there be supervision of a State

court? This issue has been touched on deli-

cately but perhaps one should put it in strong

terms. A party which chooses its arbitrator be-

lieves that this arbitrator is to perform some

function as its quasi-attorney in fact or take a

liberal view at its claims. That is not what arbi-

tration is about. The right to choose ends the

right of the party. The arbitrator cannot be

linked to the party. Why is it that recently there

are so many applications for exclusion of an

arbitrator? Something not good is happening as

regards independence and impartiality of arbi-

trators. Let us be honest – it is not a good situa-

tion when a group of arbitrators is limited, and

at the same time is internally connected with

various dependencies. As a result we are deal-

ing with a situation where in one arbitration

someone is an arbitrator, and a moment later


PART II

appears before his fellow arbitrators in the role

of attorney in fact for a party. These situations

should be avoided. I know that at present at-

tempts are being made to avoid them. This is a

pathological situation which occurs not only in

Poland but worldwide, where functions per-

formed by lawyers often overlap.

If you encourage someone to choose arbitra-

tion, then it must be honestly said that the

party should take into account the right of the

arbitrator to err. An application for setting

aside has ultimately a limited scope. Apart from

serious breaches which cannot be included un-

der the public order clause, there are no possi-

bilities of challenging an arbitral award on the

merits. This should additionally support the

view that the award be voluntarily enforced. If I

have confidence in the arbitrator, then I will

enforce his award. Confidence should be built

up by the fact that arbitrators are independent

and impartial. In contrast, if the confidence is

not there, then one should not avail of arbitra-

tion.

Let us move on to the main problem. The pre-

vious speaker accurately linked the answer to

the question of whether one may limit the

number of instances when examining an appli-

cation for setting aside with the question as to

the character of the application. I do not under-

stand those authors who state that an applica-

tion for setting aside an arbitral award is a par-

ticular form of a statement of claim and at the

same time imagine that one can limit the

course of the instances. The action must be ex-

amined from the beginning, i.e. from the first

instance.

I do not see any constitutional arguments

which would be against the thesis that pro-

ceedings brought about by the filing of an ap-

plication would start from the court of second

instance. Supervision over the arbitral award

must exist. This follows irrefutably from cer-

tain decisions of the Constitutional Tribunal,

whereas in theory it is possible – assuming that

an application is a measure of appeal – for su-

pervision by the State of the award of arbitra-

tors were to take place from a stage closer to

appeal proceedings. On the other hand, if we

read that at present we have 440 courts of arbi-

tration and very often the number of cases

which they examine is not large, then the issue

of access to the court should count. Why is it

then that these simple cases cannot be exam-

ined in each court, but rather it must be some

limited number of courts of higher instance?

From the point of view of the State judiciary,

the problem is that at present if we speak of an

overburdening of the courts, of proceedings

lasting a long time, then all those interested see

the solution being in a specialization of courts

and cases being remanded to examination to

selected courts only, which is to guarantee

faster proceedings. In the opinion of some, the

best thing would be to write into the Code of

Civil Procedure that proceedings are to be

completed without delay. Moreover, we are

dealing with pressure to remand specific cases

to selected courts. Meanwhile, as it seems, the

policy of the justice department at present is

different, the specialization of divisions is lim-

ited, in smaller courts the labour and commer-

cial divisions are liquidated, leaving just the

two main divisions. Perhaps one could intro-

duce this type of specialization, though one

should answer the question of whether such a

need actually exists.

What then is the remedy at this point in time?

And why not reflect on availing of the second

arbitral instance? Everyone skips over this

question because arbitral proceedings are

quick thanks to the fact that they are single-

instance. However, there exists a right to a sec-

ond arbitral instance written into the Code of


PART II

Civil Procedure. What is the problem in offering

parties some type of supervision over an arbi-

tral award as part of a second arbitral instance?

Perhaps it would limit the filing of applications

with common courts for setting aside [awards].

The fact that there exists an application to the

court has the advantage that the court of ap-

peal may formulate a legal issue which it will

present to the Supreme Court to be resolved. In

turn, as part of cassation proceedings, the Su-

preme Court after 2005 clarified numerous

problems connected with application of the

provisions of part V of the Code of Civil Proce-

dure.

What therefore can be reformed? Of course, the

issue of the extent to which disputes are sub-

ject to arbitration is one of the problems to be

reformed. The Commission on Civil Law Codifi-

cation is open to a discussion with representa-

tives of the field of arbitration as to the extent

to which it is possible to determine a dispute as

to the possibility of setting aside resolutions of

general meetings of capital companies in arbi-

tral proceedings, whilst of course retaining the

rights of third parties.

We should note furthermore that the provi-

sions concerning courts of arbitration, which

have to a large extent been based on the UN-

CITRAL model law, have been in force for just 5

years now. Let us wait until their application

has become established, for the decisions of the

Supreme Court to set down the directions for

practice in the judicial decisions of courts, and

then it may turn out that a change in the provi-

sions is not indispensable. A habit has emerged

in Poland whereby as soon as we observe some

kind of pathological situation, the provisions

are immediately changed. Maybe it is better to

not change the provisions but rather better

prepare judges, better direct practice, so that

thanks to this court proceedings will move

more quickly.

Prof. Aleksander Chłopecki: Ladies and gen-

tlemen, I will perhaps disappoint you to a large

extent as you could have expected from the

presiding judge of a court of arbitration that he

would jump in the direction of a defence of an

autonomization of arbitration, but my con-

science will not allow me to do so. Apart from

the issue of specialized courts, with regard to

which I differ fundamentally with Prof. Ereciń-

ski, I must – I fear – agree as to the rest. I am

deeply attached to the idea of two instances.

We have here a mutually exclusive situation: on

the one hand, we would like it to be faster,

whilst on the other we see that the common

judiciary does not manage to cope with that

speed. Hence, we think like this: perhaps a

remedy will be to compress the instances. Of

course, but this compression – as Prof. Ereciń-

ski said – will unfortunately be done at the ex-

pense of the constitutional protection of the

interests of the parties. Nomina sunt odiosa,

though different types of cases occur.

As a side note one could reflect on why indeed

should a party appoint an arbitrator? Would it

not be better if arbitrators, especially in per-

manent courts, were appointed by either the

Presiding Judge or the panel. But that it would

not be like in the common court where a judge

receives a case about which he has no idea as to

specific material. The choice would be merits-

based.

Taking a look at the judicial decisions of the

Supreme Court, we see that - whether we like it

or not - we are dealing with a very general pub-

lic order principle. For example, a decision of 9

September 2010: “A lack of impartiality means

that the award of the court of arbitration is

contrary to the principles of public order.” A

decision of 2009: “Undoubtedly, however,


PART II

handing down decisions on the basis of a selec-

tive, dishonest evaluation of the evidence

breaches the principles of legal order.” Decision

of 2008: “If damage was not caused, adjudica-

tion of compensation should be considered to

be contrary to the basic principles of public

order of the Republic of Poland.”

On the one hand, we encounter very strong

expressions regarding the lack of possibility of

intervention of State courts in arbitral proceed-

ings, whilst on the other hand we see the need

to carry out an analysis which de facto amounts

in some sense to resolving the case on the mer-

its and entering quite deeply into details.

Thus, from my point of view, what should be

considered is decidedly not a compressing of

this supervision but rather a retention of the

current model, with even a consideration of

whether the pre-requisites of the application

should not be more precise or broadened. This

is perhaps not in the purely particularistic in-

terests of arbitral judiciary but is in the long-

term interests. However, assuming of course

that common judiciary starts to work in much

more efficient manner.

Moving on to the last issue which perhaps will

amuse you: it has happened to me several

times that I was a witness in various courts, e.g.

criminal courts. I did not meet criminals too

often. Rather the situation was as follows: in a

case pending in matters connected with the

capital market the judge would ring me and

say: someone said that you could perhaps clar-

ify certain things. I cannot question you as an

expert as the court is the highest expert on law

but would you consent to testify as a witness? –

I would say, OK. It ends with a discussion with

the court about specific mechanisms, also legal

ones. I know that the Ministry of Justice has a

specific view combating specialist judiciary. I

would not be too dogmatic in this respect. If

one were to succeed in distinguishing reason-

able (as regards scope) issues for a common

court - after all that is the case, for example, in

the Competition and Consumer Protection

Court - then why not? After all a judge cannot

be an expert on everything. A judge who has 10

cases on the court calendar and sets a hearing

every 3 or 4 months is not in a position to con-

duct the proceedings economically because

after these 3 months he will have already for-

gotten the 10 cases. I apologize for this some-

what secondary motif. Thank you for your at-

tention.

Counsellor Ireneusz Matusiak: I would like to

look at the level of specialist courts which han-

dle given cases. I would ask myself a question

here: is there a need for a change in the model

of the application for setting aside an arbitral

award? The argument was made that, yes,

amongst other reasons because the problem

today is the multi-instance aspect. Appearing as

the presiding judge of a court, I would say that

the needs of courts of arbitration may be de-

fined differently. In practice, courts in many

cases examine a case as to the merits. I know

such awards. Thus, we cannot speak here of a

certain equal status, independence of courts of

arbitration. In many cases an application to a

common court is treated as a second instance. I

believe that a court of arbitration is still infe-

rior and that there is no equal status here.

Another issue with regard to the second in-

stance : in my opinion, one could accept a solu-

tion that the application is examined by the

court of arbitration. Supervision of the common

court would still be ensured by way of exami-

nation of the applications for recognition and

granting an enforcement clause to an award.

Dr. Beata Gessel-Kalinowska vel Kalisz: I

would like to take the floor as president of a

court of arbitration and a person who, in view


PART II

of the position held, should care for the inter-

ests of all users of arbitration. In the opinion of

the majority in arbitration circles - and it is my

personal belief also - court supervision over

arbitration is necessary, especially when it is

question of the sensitive issues about which we

spoke earlier concerning certain standards of

conduct of arbitrators (and sometimes the lack

of such standards), as well as the internal pro-

cedures adopted by them. With regard to the

pre-requisites concerning setting aside an

award – I do not see any need for them to be

changed. It also seems to me that the public

order clause, in the form in which it is, should

be further worked on by a legal interpretation.

I believe that we are not in a position to make

the said clause more precise in our legal norms.

In its present form, the clause is acceptable also

in the context of international conventions.

Also, it is sufficiently flexible that it may cover

numerous irregularities, and I think that the

interpretation of the Supreme Court is going in

the direction whereby the interpretation of this

notion would not be broadened too much. The

point is for the content of the public order

clause to not make possible supervision of

awards of a court of arbitration as to merits.

As regards the second instance of arbitration –

I am thinking here of what Prof. Ereciński men-

tioned – I do not fully understand what this

concept is to look like. After all, both a second

and a third arbitral instance is possible. Indeed,

bearing in mind the autonomy of will of the

parties, they may establish their own mode of

proceedings, which may include a second and a

third instance. Also the Code of Civil Procedure

mentions a second instance. However, it should

noted that in the present model of post-

arbitration proceedings, it would be a fourth or

even fifth instance. This means that if the par-

ties wished to provide for a second instance, de

facto they would be adding yet more stages.

As regards compressing the application, I am a

supporter of this idea. I have many times dis-

cussed this with participants in today’s debate.

In my opinion, an ideal example which we

could apply also in Poland is the Swiss solution,

where it is the Supreme Court that is the in-

stance which decides on the fate of an arbitral

award. I do not understand why this solution is

difficult to accept. But also, if we move away

from the legal character of the award which is

decided in the arbitral proceedings, it is a final

award, thus it should – in my opinion – logically

be subject to the same rules of appeal as a deci-

sion of a common court. I would be very happy

if it were to turn out that there will exist the

possibility of a two-stage appeal of an applica-

tion, that is if we begin with courts of appeal,

which would considerably shorten the pro-

ceedings. Please note that we have prepared

estimate, incomplete data on the subject of how

long application proceedings last. It turns out

that these proceedings last on average at least

two years. One must wait a very long time for

the first hearing which decides on the applica-

tion. It seems to me that the application should

not last longer than the arbitral proceedings

themselves. I have shown the data of courts

which gave the average duration of their arbi-

tral proceedings – let us assume that it is 12

months.

It seems to me that we must do everything pos-

sible for application proceedings to be shorter

as otherwise it negates the whole sense of arbi-

tral proceedings, both as regards costs and

time. I would like if it were possible for pro-

ceedings to be shortened and for a case to be

examined first at the level of a court of appeal,

and then the Supreme Court. Perhaps we could

consider (I submit this to the attention of the

participants of today’s debate) the introduction

of a two-track procedure of proceedings: sepa-

rately for domestic cases and separately for


PART II

international cases. In the matter of interna-

tional cases it is also a question of how to en-

courage a greater participation of Poland in

these cases. Perhaps in international disputes

there could exist a possibility of introducing a

separate procedure only to the Supreme Court,

whereas retaining two stages of proceedings in

domestic cases?

Prof. Jerzy Rajski: The first issue which does

not give rise to any doubt: we cannot question

that which constitutes the greatest achieve-

ment of the international legislator, which is

that of making uniform on a worldwide scale

the provisions concerning recognition and en-

forcement of foreign arbitral awards. This is

the greatest achievement in the history of in-

ternational law and we are not questioning

that.

On the other hand, a second issue, very impor-

tant, is the lack of proper harmony between the

specific nature of recognition and enforcement

of foreign awards of courts of arbitration and

the procedure of the proceedings. This specific

nature must be taken into account when adopt-

ing a pertinent procedure for proceedings be-

fore a State court. The foregoing cases are ex-

amined in the common ‘mill’ of court proceed-

ings in which all civil cases are examined.

Thus, a demand appears here for a certain or-

ganization of matters; perhaps one should be-

gin with those matters which can most easily

be taken care of, and then move on to the more

complicated ones. The first matter with regard

to which in my opinion there is a consensus

amongst those here present is the need to cre-

ate a special jurisdictional procedure for exam-

ining cases related to awards handed down in

international commercial arbitration. The in-

ternational character of these awards creates a

need for a special procedure which, on the one

hand, would meet the requirements as to mer-

its (special knowledge), and on the other hand

would create an easier and more effective

route thanks to which – it being the topic of our

conference – Poland could become a more at-

tractive place for international arbitration.

In turn, as regards awards handed down in

domestic arbitration, I agree with Prof. Ereciń-

ski that the matter is more complicated, though

indeed it is linked to the overall issue of putting

our justice system in order. And now a ques-

tion: what direction should one go in? There is

no easy answer to that question. First of all, it

should be preceded by empirical research

which would give us stronger grounds for put-

ting forward certain theses but intuitively such

routes which could be foreseen here should

take into account two criteria: on the one hand,

effectiveness, the efficiency of those proceed-

ings, and on the other hand requirements con-

cerning professionalization, that is specializa-

tion. A suitable solution must be found of an

organizational nature; one could consider cre-

ating in certain courts divisions or other units;

in any event specialization is necessary here. At

present what is required is knowledge which

State judges sometimes do not have. I do not

want to go back to the discussion from the first

part of our session in which it was emphasized

that the average law graduate does not have

sufficient education in this area and does not

acquire it in the course of apprenticeship.

These are very complicated issues.

In my opinion, one should not begin with

changes of the current instance model until

such time as we have the results of empirical

research on how it functions, but rather at-

tempt to make more efficient that which can be

made more efficient, without radical changes.

This means making some internal organiza-

tional improvements thanks to which those

cases could be examined, first of all by compe-


PART II

tent judges, and secondly – in a procedure

which would be more efficient that at present.

Dr. Rafał Morek: I would like to speak just

briefly – a large number of interesting topics

have appeared in the discussion, but I will con-

fine my comments to just two of them.

It seems to me that our hands are tied as re-

gards the pre-requisites of an application for

setting aside an arbitral award. The standard

following from art. 34 of the UNCITRAL model

law is so common, adopted in all significant

arbitration jurisdictions, that a departure from

it – essentially in any direction – would be

treated as something unusual and controver-

sial. I would draw attention to the fact that art.

34 is closely linked to art. 36 of the law and

above all with art. 5 of the New York Conven-

tion of 1958. In the course of 50 years of appli-

cation, this regulation became the common in-

ternational standard. That would be all as re-

gards the issue of pre-requisites.

On the other hand, with regard to the issue of

how many instances there should be in super-

vision proceedings before State courts, I would

point out that the United Nations Commission

on International Trade Law (UNCITRAL) delib-

erately left this issue unregulated. The proce-

dure under which common courts supervise

arbitral awards depends above all on the judi-

ciary form in a given country. If in Austria State

courts operate quickly and efficiently, then the

three-instance proceedings adopted there may

work in practice. If in England an application

for setting aside an arbitral award has the na-

ture of an extraordinary appeal measure, then

also beginning proceedings from the High

Court has its own specific ‘local’ justification.

In general, to sum up, I subscribe to what

Counsellor Krużewski said: the dominant

model is to compress these proceedings into

two instances. Bearing in mind the lengthiness

of proceedings before common courts in Po-

land, it seems that this is a model which would

decidedly meet the needs of practice.

Ms. Barbara Grabowska: As can be easily

guessed, I am not a specialist in arbitration.

However, I would like to share some observa-

tions with you on arbitration in the context of

the European Convention on human rights, that

is arbitration treated as a possible ‘untypical’

access to justice. In the Code of Civil Procedure,

we read that an agreement to adjudication by a

court of arbitration leads to an automatic dis-

missal of a statement of claim before a domes-

tic court, which in my opinion means that a

potential application for setting aside an award

of a court of arbitration causes that it cannot be

treated as an action as then we would be deal-

ing with a situation where we would be adjudi-

cating twice in the same case.

On the other hand, bearing in mind the judicial

decisions of the European Court of Human

Rights, what Strasburg emphasizes is the effec-

tiveness of awards of courts of arbitration. In a

case where arbitration is obligatory, the re-

quirements following from art. 6 of the Conven-

tion are fully applicable to such proceedings.

The situation appears somewhat differently

when this arbitration is optional.

Over the last 3 years at least two quite impor-

tant decisions have been handed down (against

Serbia and against Ukraine), in which Strasburg

declared that a situation is in violation of the

Convention where despite the fact that arbitral

awards are handed down, because of the

lengthy appeal proceedings these awards can-

not be carried out. This, in turn, causes that the

State-Party to the Convention must pay com-

pensation in the full amount of the subject-

matter of dispute which was adjudicated by the

court of arbitration. I think that it would be


PART II

worthwhile to hold a discussion on the form of

an application for setting aside the award of a

court of arbitration and its effectiveness, taking

into consideration the judicial decisions of the

Tribunal in Strasburg. As it is, to date we have

no ‘Polish’ Strasburg decisions concerning arbi-

tration. Perhaps if the Polish model of the ap-

plication for setting aside and arbitration itself

are ineffective, then later it may turn out that

such cases will go to the Tribunal in Strasburg.

Counsellor Paweł Pietkiewicz: I would like to

refer to what Prof. Chłopecki said, namely that

decisions of common courts in the scope of an

application for setting aside an award of a court

of arbitration are unpredictable. They are in-

deed unpredictable. In particular, this is caused

by the public order clause. Of course, its pres-

ence amongst the pre-requisites is necessary

but, by applying it in a pathological manner,

courts arrive at various conclusions and some-

times indeed examine the case as to the merits

for a second time.

It seems to me that this compressing or short-

ening of the entire post-arbitral proceedings

could also cover the following issue. Namely, if

an application for setting aside an arbitral

award were to be indeed addressed to courts of

appeal as courts of first instance, then these

courts are so few that I suspect that in a short

time an accumulation would appear of the

knowledge of judges working in these courts.

All the more that these are judges with exten-

sive experience and knowledge. At present we

have a situation where a judge working in the

first instance which must examine an applica-

tion for setting aside an award of a court of ar-

bitration has little chance of encountering this

type of issue once again. I suspect that most

often it is the case that on one occasion a judge

receives such an application for setting aside

an award of a court of arbitration, examines it,

applies the mechanisms and thinking processes

which he has used to date, that is more often

what is applied to the plaint procedure, and

uses this mechanism to examine such applica-

tion.

Now, even if a judge had relevant knowledge

and experience, the chance that he will be able

to use it for this type of case is quite slight as

the diffusion of applications in the application

proceedings is enormous. The likelihood is

small that such a number of cases will go to one

judge that this accumulated knowledge could

be used. If it were the case that there were far

fewer of these courts (we are talking about

courts of appeal), then the likelihood of devel-

oping a coherent line of judicial decisions and

building up experience would be much greater.

At the same time, the supervision of the Su-

preme Court which potentially could correct a

certain type of deviation from the correct un-

derstanding of the pre-requisites for an appli-

cation of a court of arbitration would ensure

the proper uniformity of those judicial deci-

sions. Thus, it seems to me that a shortening of

these proceedings, as proposed by Counsellor

Krużewski, where the first instance would be

the court of appeal, would also ensure a pre-

dictability of decisions of common courts.

Thank you.

Dr. Beata Gessel-Kalinowska vel Kalisz: I

will only speak briefly as I would just like to

raise an issue which was touched on by Coun-

sellor Pietkiewicz. I would like to take advan-

tage of the presence of representatives of the

Ministry of Justice. What I mean is how arbitra-

tion is seen and experienced by professional

judges. It seems to me that it is not understood

that arbitral proceedings are not formalistic in

their nature, such as for instance, I would say,

court’s execution of “promissory notes” I am

thinking of a specific dispute: the Gdańsk

awards, which was extensively commented on

in arbitration circles when the arbitral award


PART II

was set aside in view of the fact that it was

signed (indeed in accordance with the tradition

adopted in courts of arbitration for many

years) under the justification. The award was

set aside because it had not been signed also

under the sentence of the award. I do not think

that this decision would have been upheld in

the next instance. Nonetheless, that case shows

that in a court of arbitration the same stan-

dards of proceedings are applied as are applied

in common judiciary. But that should not be the

case. It is a farther-reaching issue, a question of

education and understanding of what arbitra-

tion consists in. Thank you.

Prof. Karol Weitz: Thank you very much. Per-

haps first of all one issue with regard to the

application models which operate in Europe

and the model that we have. One thing has es-

caped us in the discussion: we have a model of

two instances, though there is no guarantee

that the Supreme Court will examine a cass-

ation as it may refuse to accept it for examina-

tion. Thus, in this respect we are somewhat

closer to England, for example.

Another thing: I agree that a potential com-

pressing of proceedings would absolutely not

be unconstitutional. Unfortunately, though, I

am almost certain that it would be considered

by the Constitutional Tribunal to be unconstitu-

tional. Why such a conclusion? If the CT be-

lieves that two instances are necessary in the

matter of costs of a trial, then it is highly prob-

able that – though probably not understanding

the problem of the application – it could go in

the same direction. I am speaking here of the

unpredictability of decisions of the Tribunal.

Another matter: in an earlier panel discussion

there was mention of the fact that proceedings

are lengthy; this is not the fault of arbitration,

but of State courts. I believe that it is above all

the fault of the parties which avail of this insti-

tution in a manner which is not entirely com-

pliant with the essence, objectives and func-

tions of the Act. It is a bit like this that on one

occasion someone is an arbitrator, hands down

a resolution, is convinced that it is right and

that this award should be upheld because he

did his best and arrived at the decision to his

best ability. On the other hand, a moment later

he is an attorney in fact and very often a little

time later he will be filing applications for set-

ting aside the award of a court of arbitration. Of

course, then the explanation is very simple: it is

in the interests of his client. But we must re-

member that since arbitrators are so good and

arbitration is so good, then there is a question

as to why the point of view changes as soon as

the function changes. After all, it is not the case

that in the case of Vivendi and Deutsche Tele-

kom the entire fault lay on the side of the State

courts. After all, it was not the State courts will

initiated such a large number of proceedings; it

was not the State courts which flooded them-

selves with hundreds of court submissions the

day before the hearing; it was not the State

courts which wrote 150-page court submis-

sions every day, transcribing almost the same

text every day. One must retain a sense of pro-

portion if one says that arbitration is ideal or

that something is wrong with it; if one says that

it is lengthy or that it is the fault of State courts.

It is not State courts which initiate proceedings

before themselves when it is a question of their

intervention in arbitration.

With regard to what Prof. Ereciński said, if the

parties submit to arbitration, then the assump-

tion should be this: since we choose the best

specialists, we should agree with their decision.

At that point the issue of the form of the appli-

cation becomes a much lesser problem.

Another matter: Prof. Rajski emphasized that a

compressing would lead to specialization but

we would not achieve even that. If it follows


PART II

from the data we have here that we have ap-

proximately 1000 arbitration cases annually,

and we would like as few of them as possible to

end up in the courts: several score, two hun-

dred, three hundred? How many judges could

specialize in examining these applications? Af-

ter all, a couple of judges handle as many cases

annually. It is not the case that one can create

specialized units in individual courts. The prob-

lem is more complex than that.

With regard to Prof. Chłopecki: well and good if

we create specialized courts for individual

cases, only that then a very crucial problem will

arise which will take up a huge amount of en-

ergy: namely, to determine whether it is to be

this court or that court or the other court. An

example of this are the commercial courts. A

large number of resolutions of the Supreme

Court concern the question of whether a case is

commercial or not, and not what the problems

are.

Another matter: as regards the problem of the

model of proceedings, we are speaking some-

what about mathematics – two, three, one in-

stance, or straightaway a court of appeal. But

perhaps there is an indirect solution, perhaps it

is the application proceedings which should be

simplified: only in writing, without a hearing.

The party submits an application – there is a

reply to the application – there is a decision of

the court. Perhaps the problem does not lie in

the number of instances but rather in the form

of those proceedings. Perhaps this could be a

certain solution.

With regard to what Ms. Gessel-Kalinowska

said: the Gdańsk decision, the famous refusal to

grant an enforcement clause because the award

of the court of arbitration was signed under the

justification, and not under the sentence. This

is an obvious error. All of us here knows that

that was a mistake but does that mean that we

must therefore absolutely deny the ability of

State courts to exercise supervision? Not en-

tirely. Moreover, that is one of the mistakes.

There is another problem here: it was not the

court that thought this up, but it was the attor-

ney in fact who suggested it to the court. There

can be no discussion about the fact that such a

decision was mistaken. But do we need to go as

far as the Supreme Court in order to ascertain

that? Is that the procedure for proceedings that

we must have? This is why we have the possi-

bility of appealing such decisions in order for

such problems to not exist.

One last remark: I do not know any legal sys-

tem where supervision over the awards of a

court of arbitration would be granted only to

the court of arbitration. The Constitutional Tri-

bunal would undoubtedly deem such a solution

to be unconstitutional. In one of its rulings, al-

lowing submission of a dispute to the judicial

decision of a private court, it stated that it is

possible only because the State retains supervi-

sion in the form, amongst others, of an applica-

tion for setting aside an award of a court of ar-

bitration. Please do not assume that an applica-

tion for recognition or declaration of enforce-

ability would be sufficient, as there the subject

of supervision is one thing, whilst it is a differ-

ent thing in the case of an application for set-

ting aside an award of a court of arbitration.

Thank you very much. We have ended Part II of

our discussion.

Can Poland become a European arbitration centre?

Panel Moderator: Tomasz Wardyński Introduction by: Maciej Jamka

Panel Participants: Paweł Pniewski, Prof. Karol Weitz, Jacek Kaczmarek, Paweł Pietkiewicz, Prof. Jerzy Rajski, Dr. Beata Gessel-Kalinowska vel Kalisz and Małgorzata Surdek.


PART III

Prof. Marek Michalski: Turning to the third

topic of the discussion, devoted to the issue

“Can Poland become a European arbitration

centre?” I invite Tomasz Wardyński to moder-

ate the discussion.

Tomasz Wardyński: Thank you. I turn over

the floor to Maciej Jamka, who will introduce

the topic.

Maciej Jamka: Thank you. I would like to start

by posing the question, What are the benefits of

being an arbitration centre? They are vast but

difficult to measure. One benefit, clearly, is

work for lawyers (which is why I was so eager

to take up this topic). The benefits extend to

the entire service sector, even hotels and other

such institutions. We tend to under-appreciate

this type of business and this sector of the

economy. I will give you an example. In a publi-

cation by the UK Treasury, entitled The Plan for

Growth, it was stated that the professional and

business services sector, including accountants,

lawyers and other professionals, was responsi-

ble for one-third of economic growth in the UK

in 2000–2007. This is the largest sector in the

British economy, generating £166 billion of the

gross domestic product. Of course we cannot

match that level, which Britain has been work-

ing towards for the past 600 years. But there is

still potential here for us, I believe.

Does competition exist between arbitration

centres? On the slide you may see two quotes

that demonstrate that such competition not

only exists, but has gotten stronger in recent

years. Markus Wirth is the head of the Swiss

Arbitration Association, and the ICC Task Force

on the Brussels II Regulation also discusses the

growth in competition. And who is in the run-

ning? The leader in Europe when it comes to

international arbitration is the ICC, followed by

London with the LCIA, Geneva, Stockholm and

Vienna. These are recognised arbitration cen-

tres which everyone has no doubt heard of, and

many of us have had the pleasure of making

use of their services. There are also other well-

known centres. The second league includes

Madrid, Milan, Germany (with DIS), and Mos-

cow. New centres are appearing: Dublin, Edin-

burgh, Kiev, Frankfurt.

I found statistics from 2007 saying that the

leaders, the ICC and LCIA, have more or less the

same levels of cases being filed. Meanwhile, the

new centres are observing significant growth.

There is probably some economic rationale for

this.

How do arbitration centres promote them-

selves? We will consider some examples of

countries in Europe:


PART III

Spain fosters an arbitration-friendly legal envi-

ronment. There is a new arbitration act based

on the UNCITRAL Model Law, with work cur-

rently underway on amendments. There is dis-

cussion of strengthening local arbitration insti-

tutions by merging them, and with new regula-

tions, as well as promotion of arbitration

through the activities of the Spanish Arbitra-

tion Club, founded for this purpose in 2005.

Spain hosted the International Bar Association

Annual Conference in 2009. Spain defines its

goal as serving as a bridge between Latin

America and Europe, for obvious reasons.

Ireland – A friendly legal environment (a topic

we will return to), with a new arbitration act in

2010 based on the UNCITRAL Model Law. Arbi-

tration-related cases are assigned to one, ex-

perienced judge, the president of the High

Court. There are no appeals from his decisions.

A new institution, the Dublin International Ar-

bitration Centre, has been opened. There is a

strong arbitration community, and a branch of

the Chartered Institute of Arbitrators with 600

members. Promotion of arbitration: creation of

the organization Arbitration Ireland, hosting of

the ICCA Conference, strong governmental

support, with the Prime Minister of Ireland at-

tending the conference. Goal: to become, as the

Irish put it, “the Switzerland of common-law

countries.”

Scotland provides a supportive legal environ-

ment, with a new arbitration act based on the

UNCITRAL Model Law and, most importantly,

the strong support of the Scottish government.

The Irish stress that they are numerous in in-

ternational business, particularly in the United

States, and for this reason alone some portion

of the caseload may go their way. The Scots, for

their part, point out that although golf is one of

their strengths, it is not the only one. They also

specialize, for example, in energy, e.g. mining in

the Norwegian Sea. Both of these countries are

striving to find their niche in arbitration, and

neither of them rests on its laurels.

France – In the latest news, a new arbitration

law has just been passed, in 2011. I have not

reviewed it yet in detail, but an interesting and

revolutionary feature is that it is possible in the

arbitration clause itself to waive a right to seek

recourse against an award. This does not apply

only to international arbitration, as in Switzer-

land, but also domestic arbitration. Further:

efforts to keep the ICC in Paris, as mentioned

already by Mr Krużewski. What incentives are

offered? A new building for the ICC Interna-

tional Court of Arbitration, and tax exemptions

for staff. The ICC has obtained a status similar

to that of tax-exempt international organiza-

tions.

Sweden – New arbitration rules at the Stock-

holm Chamber of Commerce in 2007, and an

invitation extended to six international experts

to join the SCC Board, occupied for the previous

75 years exclusively by Swedes.

England – First of all, financial support from

the state. We can still picture the recent rioting

by students in London over budget cuts. But

the same budget includes special provisions

with a pool set aside for growth of arbitration.

On the slide you see the new office building

that is the headquarters of arbitration in the

centre of London. London arbitration does not

have this building yet. Just yesterday I was in

London for a procedural hearing, and because

of the cramped quarters of the current arbitra-

tion headquarters in London, the parties and

the arbitrators decided that it would be better

to move the hearing to another location: The

Hague. This is eyewitness proof that there is

competition between arbitration centres.

Turning to our own backyard: Is there an eco-

nomic need to create an arbitration centre in


PART III

Poland? Could Warsaw become one of the

group of cities hosting major arbitration

courts? I think that our discussion will answer

this question, but I would first like to say only

that it appears that a business need for it does

exist. East of our own borders there are neither

effective courts nor well-established arbitra-

tion centres, and there probably will not be for

a long time. Thus the situation definitely pre-

sents potential. Jan Paulsson, a leading figure in

contemporary arbitration, has said that there

are two major factors here: First, will the na-

tional courts prevent the parties from obtain-

ing an award in a favourable time and at a rea-

sonable price? Second, after an award is issued,

will it be followed by costly proceedings before

the national courts?

When considering what should be done in or-

der to create an international arbitration cen-

tre here, I looked at the example of the Warsaw

Stock Exchange. Just 20 years ago, if anyone

said that Poland would one day have a strong

stock exchange, a centre for the region—which

I believe it now is—no one would have be-

lieved it. I think it is worth considering how

that happened and what were the conditions.

It seems to me, and this is just my subjective

view, that there are four essential elements:

the right legal environment, institutional

environment, state support, and human

capital.

Legal environment: In the case of the WSE,

the regulations have been shaped over the past

20 years and have undergone changes, but they

were always good or excellent regulations, and

no shortcuts were taken. Shall we consider

what we have in arbitration? A good law, but

not excellent. An example that has not been

mentioned yet is the effect of bankruptcy on an

arbitration proceeding, which is an incredibly

important issue but not understood at all by

most of the legal profession not involved in

arbitration. We have major problems with pro-

longed proceedings connected with arbitration.

Finally, we have unstable case law.

Institutional environment: The stock ex-

change is one central institution, a clear leader

organized by the state, equipped with every-

thing it needs, with financial incentives for

brokerages. What we have in arbitration is sev-

eral competing arbitration courts, the lack of a

truly impressive headquarters (even the offices

of the Polish Chamber of Commerce are merely

“not too shabby”), and no organizational unit

within the Ministry of Justice to stand watch

over arbitration or deal with the topic of arbi-

tration in general.

State support: The WSE was not built all by

itself. Other institutions were established, open

pension funds directed investment streams

toward the WSE, large privatizations by the

state were organized by the State Treasury,

there was pressure on investment banks to

encourage them to set up offices in Poland, and

the WSE was promoted by each successive

government.

What do we have in arbitration? Arbitration is

a private affairs of private individuals and or-

ganizations. This aspect has already been

raised: They earn money on it. There is no co-

ordinated state policy with respect to arbitra-

tion clauses in agreements affecting the inter-

ests of the State Treasury. We have heard from

Mr Dziurda, and I interpret his comments as at

best mixed feelings about arbitration. Mr Dzi-

urda only reaps the fruit of arbitration clauses,

however. Many prominent lawyers also have

negative opinions about arbitration. I daresay

that even in this room we have heard several

comments that give us pause to consider

whether arbitration is considered a desirable

element of the legal landscape in Poland.


PART III

Human capital: The staff at the Warsaw Stock

Exchange has grown over the years along with

growth of the exchange. Know-how was im-

ported into Poland by international institu-

tions, law firms, investment banks and broker-

ages.

In arbitration we have a large local community,

partially satisfied with the status quo, and a

new wave of the younger generation of people

who seek broader horizons for arbitration.

With a few exceptions, we as Poles do not have

a presence in international arbitration struc-

tures, we are not engaged in global debates

about arbitration, and we are not physically in

attendance at world arbitration events.

In 1902 Lenin published a brief work with the

brief title What Is to Be Done? I mention it not

just because it is a catchy title, but also because

it appeared at a time when the revolutionaries

were in disarray—and indeed the December

Revolution was soon to be put down, in 1905. It

appeared at the time that there really was

nothing to be done. Nonetheless, eventually the

Russian revolution prevailed. Even the longest

journey starts with but a single step. So the

question is: what is the that first step?

For me, the first step is to articulate the goal.

The question is whether we want to have such

a goal, to internalize it, to adopt it as our own,

to strive in that direction. If so, we need to pre-

pare a strategy, a conscious-raising campaign

for state institutions to show that it will pay off

for the state and the state should act toward

this end. But also for the city. Further: to pre-

pare a strategy for joint action by the main ar-

bitration courts. “First, do no harm,” I think it

should say.

Promotion of Poland in the global arbitration

community: writing for law journals, partici-

pating in worldwide events, hosting interna-

tional events, promotion in the countries that

may potentially be interested in our services,

participation by individual lawyers in foreign

arbitration institutions.

As I get older, it seems to me that nothing has

such a good effect on human relations as a little

self-serving flattery. That’s why I would like to

say now that the Lewiatan Court of Arbitration

is already on this path, and it is doing a lot to

reach out beyond the domestic environment. It

is enough to mention the successful confer-

ences last year and the Polish-Austrian coop-

eration initiative, which will be held for the

second time in June. Also important is the arbi-

tration quarterly published in English. The list

goes on.

But if we truly want to become a major interna-

tional centre, certainly not in just a year or two,

that depends on all of us, the arbitration com-

munity. Thank you.

Tomasz Wardyński: Thank you very much, Mr

Jamka. Before we begin the discussion, I would

like to draw your attention to a brief report on

the ICC International Court of Arbitration. Be-

cause we have with us today Paweł Pniewski,

who is the chairman of the national committee

ICC Poland, but Piotr Nowaczyk is not with us, I

would like to request a brief report on the role

played by the ICC International Court of Arbi-

tration in the Polish arbitration community.

Then we will turn to the discussion.

Paweł Pniewski: Thank you, Mr Chairman.

Good afternoon, ladies and gentlemen. First of

all I would like to convey the warmest regards

on behalf of Piotr Nowaczyk. Unfortunately he

could not be with us today, and he is truly a

person who would have much to say on the

subject of how we should promote Poland as an

arbitration centre.


PART III

With respect to the ICC, you have materials be-

fore you which I will not discuss in detail. I

would like to say a few words about the “war”

going on over the ICC’s staying in Paris. Indeed,

there was serious competition, and there was a

battle between France and Switzerland and

Austria. The parties brought heavier and heav-

ier artillery to the table. When you get right

down to it, the basic reason that the ICC stayed

in Paris was that no one wanted to leave that

beautiful city. Because the financial arguments

of the two other countries were serious, how-

ever, the French government had to give way

and offer the broad concessions to the ICC

which have already been mentioned.

If you look at the enclosure to the materials you

have, you will probably notice that it begins

from 2001. We began activity in 2000. Piotr

Nowaczyk became our ICC representative in

about 2003. More or less from the same time,

as you will see, the numbers of parties from

Poland began to grow significantly, and the

number of Polish arbitrators, as well as Poland

as the place of arbitration, not to mention Pol-

ish as the language of the arbitration.

I can only say, first, that promotion works, and

it is possible to promote Poland just as we to

some extent promoted the ICC on the Polish

market. How did we do it? At a certain time, we

consistently organized conferences to popular-

ize the ICC, travelling among the largest cities

in Poland and presenting the accomplishments

of the ICC, particular the achievements of the

International Court of Arbitration. Piotr

Nowaczyk became very actively involved in the

work of the court. At one point we even began

to think about foreign promotion. We did con-

duct two manoeuvres, as ICC Poland, in Minsk

and in the Czech Republic. Not that the ICC

needs to be promoted in the Czech Republic,

where they have their own national committee,

but it was promotion of Poland as a strong ar-

bitration centre. We are also happy that our

colleagues actively participate now in sessions

of the ICC Commission on Arbitration. It’s not

the way it used to be, when one person would

travel there every six months. I am pleased to

say that our representation on the ICC Com-

mission on Arbitration is very strong.

For my part, I would also like to add that ICC

Poland is always eager to cooperate and join in

on any project connected with promotion of

Poland as an arbitration centre, because I be-

lieve it is in our common interest. Thank you.

Prof. Karol Weitz: Thanks to Mr Jamka for his

introduction. My comments will not be as or-

ganized, but I would like to tie in to the infor-

mation about the contribution that the arbitra-

tion market makes to the gross domestic prod-

uct in the UK. I think that this is just a small

fragment of the whole picture, because in the

UK the legal services market as such is an im-

portant element in establishing the country’s

position. As an example, right now in Brussels

we are negotiating a new Brussels I Regulation.

One of the options is to replace national rules

with this EU regulation also when the defen-

dant is domiciled in a third country. The great-

est objection was raised by the UK, because it is

against its interest for Brussels, instead of a

court in London, to decide when the English

courts will be able to decide a dispute between

someone from India and someone from Can-

ada. If it is a good case or an interesting case,

the English court will hear it, and if not it will

find that it is not the proper forum.

The issue of arbitration as an element affecting

the position of the country and its welfare is

very important. Of course, we are starting from

a much worse position. London is not an arbi-

tration centre just because London is a nice

place to visit. It is not just several centuries of

development of arbitration, but also historical


PART III

events. To put it bluntly, Poland did not have

the good fortune to have colonies—or at any

rate we had only one, in the 17th century,

through the Duchy of Courland, which we lost

after 20 years. That is the unvarnished truth. In

a manner of speaking—again, bluntly—we had

colonies much closer, to the East, and this is

probably the arbitration market we should be

reaching for. We will not compete with London,

and we will not compete with Paris, Vienna or

Stockholm. If there is one thing we can do, it is

to return to the East. There is no such market

in Central & Eastern Europe either. Here we

may express amazement. Germany has no one

strong arbitration centre. There is only DIS, but

it is left somewhere back at the starting block.

If there is one direction we should look, it is to

the East.

At this point I would like to jump to the issues

related to the conditions for creation of an arbi-

tration centre. I agree that the regulations in

the Polish Civil Procedure Code are not perfect.

When we enact a set of regulations, it is only

after some time that their weaknesses become

visible. But I would always stress that a law

that is a little better or worse will not guaran-

tee that arbitration in fact works well. This is

because the arbitration regulations are flexible

enough to create the conditions enabling arbi-

tration to develop in Poland.

It is hard for me to accept such a superficial

view that we cannot be an international arbi-

tration centre because the state courts here are

too powerful and interfere too much. Certainly,

the regulations are developing in the direction

of limiting that interference. That will happen,

but it seems to me that first arbitration must

demonstrate that it needs less interference.

This is an area where it is necessary to con-

vince decision-makers that less interference is

needed. That is why I would also strongly em-

phasize that it is not just the fault of the state

courts that there are post-arbitration or arbi-

tration-related proceedings that last too long. It

is not just the fault of the courts, but also coun-

sel who appear before the arbitrators, and the

parties. This is extremely important. I do not

want to speak too harshly here, but sometimes

certain behaviours display hypocrisy. On one

hand we say we want to reach an award more

quickly, as soon as possible, and that it should

be effective and enforceable, but on the other

hand we say that to defend the client’s inter-

ests, I will use every opportunity available, to

the bitter end.

One more thing: I agree that our regulation

concerning the effect of bankruptcy on arbitra-

tion is bizarre. I see no ground on which this

regulation can be defended. That is my opinion.

I have always been opposed to it. This issue

should be addressed in a completely different

way.

Another issue, perhaps the biggest problem:

many competing arbitration courts. There is no

concerted will on the part of the broader arbi-

tration community to agree institutionally, as it

were, on one Polish arbitration court for ex-

port. It is not up to me to take action in this re-

spect. I can only say that perhaps an interim

form would be some joint institutions. Perhaps

a solution would be to create an arbitration

institute, in which all of the permanent arbitra-

tion courts, or at least the major ones, would be

involved as founders, without trying to decide

whether we are more important than the Pol-

ish Chamber of Commerce or vice versa. I offer

for consideration the creation of such an arbi-

tration institute. Perhaps it would be a solution.

With all due respect, I would not count on the

Ministry of Justice here, because it is probably

not institutionally prepared to act toward this

end. There is no such tradition in the ministry.

Please note that in the case of the Warsaw


PART III

Stock Exchange, it is much easier to justify its

public importance as a centre. Unfortunately,

arbitration is popularly labelled as an elitist

form of dispute resolution. This is a certain im-

age problem.

Another thing: The arbitration community is to

some extent a closed community, which is not

always willing to admit the new arbitration

generation into specific, ambitious arbitrations.

In a human sense this is somewhat under-

standable. We can’t hide the fact that this is the

business of the lawyers, thanks to whom the

disputes may be resolved.

Unfortunately, we are not heard in the overall

European discussion of arbitration. I am sorry

to say that when the draft Brussels I Regulation

was being prepared, not only where there no

publications on this topic in Poland, there were

also no reports that Polish experts were par-

ticipating in meetings with the European

Commission on whether or not Brussels I

should be extended to arbitration. I will stop

there. In the draft regulation presented by the

Commission, there were certain concepts for

extending aspects of the regulation to arbitra-

tion. At this time it appears that probably that

will not happen. It seems like a good thing to

me, but the largest arbitration centres are

blocking it. The UK and France said quite

bluntly that the provisions that are being pro-

posed should be thrown out. One British pro-

fessor admitted straight out, “This is about our

money.” We want to decide when and how ar-

bitration will function here. It seems that we

can gain from this, because the Brussels I Regu-

lation that was planned could have caused ossi-

fication of the status quo, as it assumed the

omnipotence of the courts of the state of the

place of arbitration, which in European terms

would mean the omnipotence of Paris and

London, perhaps Stockholm, sometimes Vi-

enna. As long as that ossification can be

avoided, there is always a chance that a slice of

the cake will be left for Warsaw. That is my

personal hope for the entire arbitration com-

munity. Thank you.

Jacek Kaczmarek: I am not in a position even

to begin to answer the question of whether Po-

land can become a European arbitration centre.

I would like to make a few comments to you,

however, on the initiatives and actions we are

undertaking in our own arbitration court. I

think that these actions in some way serve the

notion that in the future our country could be-

come such a centre, specifically by creating fa-

vourable conditions for development of alter-

native methods of resolving disputes in every

field, among businesses in particular, but also

among economic institutions, lawyers, and le-

gal scholars.

We are confident that concrete actions, the

number of cases, and the great experience and

level of the decisions that come with it, are a

method for development and an increase in the

interest in our country as an arbitration centre.

The efforts of each of our arbitration courts

concerning the number of cases and the level of

the decisions, the support of a “good law,” and

building a positive atmosphere of all of these

groups, are enough to head in the right direc-

tion. Not necessarily through creation of any

new central institutions, or if so only an organi-

zation supporting and coordinating the goal we

jointly set for ourselves.

I am the vice president of a small arbitration

court. From the perspective of Warsaw it is a

local court and a local community. We have

nonetheless adopted the guiding principle for

our activity that even though our capabilities

are local, we would like to think and act glob-

ally—or at least that is our aspiration.


PART III

Thus we try to establish cooperation with spe-

cific arbitration courts. In our actions on the

international side, we have decided to develop

this cooperation with countries and arbitration

institutions in Eastern Europe, where we see

potential and dynamics for growth in economic

relations, although we also perceive risks re-

lated to economic and cultural differences and

from differing visions and levels of the civil so-

ciety. Therefore, as I said, we try to form close

contacts directly with the arbitration courts

and chambers of commerce of these countries,

by signing various declarations and under-

standings, in which we try to have an impact on

local government and economic institutions in

our regions, to strengthen and reinforce the

economic cooperation between businesses

from our regions.

In these initiatives, we rely on opportunities for

effective use of alternative dispute resolution,

including the benefits of agreeing on an arbitra-

tion clause. We also undertake to promote the

concept of arbitration, and also indicate to the

businesses cooperating with us from the given

regions the option to select one of our arbitra-

tion courts who are signatories to these agree-

ments. We promote legal knowledge among

businesses, particularly in the area of commer-

cial law, with respect to the legal systems of the

countries in question. We organize workshops

and training sessions here.

We also undertake to provide one another in-

teresting rulings in cases decided by the arbi-

tration courts in the given countries. We invite

each other to participate in conferences and

seminars that we organize. We would also like

to present and make available analyses, reports

and publications concerning arbitration, and

depending on the possibilities and the needs,

we supplement one another’s list of arbitrators.

The scope of the declared cooperation is open

and may always be extended. We also under-

take to include information on one another’s

website concerning the arbitration courts in

question and the host chambers of commerce,

as well as their logos.

These declarations and understandings are not

empty or just on paper. Among recent events,

we were on a working visit to Ukraine. In Kiev

we met with the president of the International

Commercial Arbitration Court at the Ukrainian

Chamber of Commerce & Industry. During the

meeting we exchanged views on the function-

ing of arbitration in Poland and Ukraine and

also learned about the specific nature of dis-

pute resolution between Ukrainian businesses

and the Ukrainian legal regulations in this area.

We also visited the Ternopil Chamber of Indus-

try & Commerce. One of the results of that

meeting was signing of another cooperation

agreement. For three years our court has been

cooperating primarily with arbitration courts

in Ukraine, but we also have contacts, and our

own arbitrators on the lists, in Georgia,

Moldova and Slovakia, and vice versa. So far, in

the 5 years that our court has been in opera-

tion, our arbitrators have resolved two interna-

tional disputes, and to the best of our knowl-

edge the awards were complied with voluntar-

ily, without commencement of execution pro-

ceedings.

In Ternopil, Ukraine, we also organized a con-

ference on alternative dispute resolution in

Ukraine and Poland. The honorary patrons of

the conference were the Minister of Justice, the

Polish Consul General in Lvov, and the honor-

ary consul of Ukraine. Over 100 people from

Ukraine and Poland took part in the confer-

ence.

During another visit to Ukraine, the president

of the arbitration court, Włodzimierz Brych,

met with the Ukrainian Vice Minister of Justice


PART III

to discuss current issues in development of

ADR in Poland and Ukraine. The result of the

meeting was a common initiative to organize a

major conference on arbitration in Odessa. It

was held in October 2010, and representatives

of arbitration and mediation from many coun-

tries around the region took part. The confer-

ence in Odessa also resulted in establishment

of the ADR Cooperation Forum, whose goal is

to promote arbitration and mediation in the

signatory countries. Cooperation declarations

were signed by representatives of arbitration

institutions from 10 different countries. The

forum is open to anyone who wants to cooper-

ate.

Last year we also participated in an interna-

tional conference in Chişinău, the capital of

Moldova. Today, at the same time as our own

meeting, a conference is being held at our court

in Nowy Tomyśl—the 5th in a series entitled

“Arbitration and Mediation in Theory and Prac-

tice.” The honorary patrons of the conference

are the Deputy Prime Minister and Minister of

Economy, the Minister of Justice, and the local

authorities of Nowy Tomyśl. Distinguished ar-

bitration and mediation scholars and practitio-

ners from Armenia, Azerbaijan, the Czech Re-

public, Denmark, Georgia, Kazakhstan, Lithua-

nia, Poland, Romania, Russia, Serbia, Turkey

and Ukraine are scheduled to attend. After the

end of the conference, there will be a working

session of the Odessa 2010 ADR Cooperation

Forum I mentioned before.

I think that for a court in Nowy Tomyśl, we

have done a lot to promote arbitration. We

hope that this carries over to the number of

cases filed with our court. Nonetheless, a

greater caseload, including international cases,

does create problems of its own. Handlings the

logistics for an international dispute is a big

challenge for us, although, as I mentioned, we

have already completed the first international

cases. They were concluded successfully, with

fair, substantive and professional awards.

In the rest of the discussion about barriers to

development of arbitration, no doubt many

issues will be raised. It is important that these

barriers be identified and brought to the atten-

tion of decision-makers, in order to find posi-

tive solutions.

Referring to cooperation with countries from

Eastern Europe, we count on cooperation spe-

cifically with this region. There are many arbi-

tration institutions and courts in Poland that

have established contacts with countries in

Western Europe. Thus we may hope that a

combination of these experiences and con-

tacts—abandoning unhealthy forms of ambi-

tion and competition—presents, I believe, an

opportunity for Poland to become a European

arbitration centre. I say this even though I must

admit that in the hand of cards we hold as a

nation, a willingness to compromise is not our

strong suit. There is a lot of work to be done

there. Thank you.

Paweł Pietkiewicz: Much has been said about

whether Poland can become an arbitration cen-

tre, and I would not like to repeat the state-

ments I agree with, but rather add something

or possibly criticize certain views. It seems to

me—and here I agree with Prof. Weitz—that

the expectation that Poland will become an

arbitration centre on a European-wide scale, or

a European centre in the sense that it will be

important for the entire Europe, is premature

at this point. I agree with Prof. Weitz that the

kind of centre Poland could become would be

limited to our region, and not even the whole

region. Central & Eastern Europe: Yes, here

Poland could conduct a certain expansion in

this respect, but not entirely. I think that the

Baltic States would naturally gravitate toward

the Scandinavian countries. Russia is a specific


PART III

market unto itself. If any cases did come in, but

probably not many if at all, it would more likely

be from the former Soviet republics, not from

Russia itself. With respect to expansion west-

ward, that expansion would end at the Oder

and Neisse rivers. As for the south, I think that

there is a large area where we could make an

impression—particularly when we consider

what is happening now with the rules of the

arbitration court in Bucharest and in Sofia.

These are not large courts, but I have the im-

pression that there is room for expansion

there. Particularly when we see, to use Mr

Jamka’s example, that a bank from Slovenia has

just been listed on the Warsaw Stock Exchange

within the past couple of weeks, there is a

natural gravitation in that direction.

What does it mean to be an arbitration centre

for the region? The expectation at this time that

we will export our know-how in this way, that

parties will sign arbitration clauses for Polish

arbitration courts, that we will export Polish as

a language of arbitration, or that we will export

the jurisprudence of our state courts or arbitra-

tion courts—I think that those expectations are

over-reaching. I think that being an arbitration

centre may only mean that Poland becomes the

location for arbitration proceedings—not nec-

essarily before Polish arbitration courts, but

even before other courts—and if Polish arbitra-

tors hear these cases and Polish lawyers ap-

pear in these cases, that in itself would already

be a major accomplishment. It appears that this

is sufficient to become an arbitration centre. It

does not necessarily mean that cases are physi-

cally brought here, or hearings are held in War-

saw, or that Polish courts rule on applications

to set aside awards issued here in Poland.

I was in Odessa and Kiev, and I was even in

Chişinău. I have the impression that the

amount of know-how we have here in Poland

already is incomparably greater than other

countries in the region. A serious problem is

that the vehicle for exporting knowledge is lan-

guage. And, clearly, such arbitration centres as

Dublin, Edinburgh and Frankfurt will have an

easier time of it because theirs are commonly

known languages, conference languages. The

Swedes are certainly in a different situation,

but the history of Swedish arbitration is based

on the fact that there was a neutral body there,

where East and West could meet, and that is

why arbitration blossomed there.

It seems to me that in Central & Eastern

Europe, we could be attractive—although not

for all countries in the region—specifically by

selling or exporting our know-how. Right now

we are witnessing that this will soon happen, if

it is not already happening. We observe a very

large phenomenon of export of capital from

Poland, or via Poland, to the region. This will be

accompanied by arbitration clauses. Here we

have a large field to mine for expansion, so that

in a situation where this kind of export is being

conducted from Poland we can attract these

cases to Poland. In any event, we can bring our

interest to bear in this field, not so that the

cases would necessarily even be conducted in

Poland. Thank you.

Prof. Jerzy Rajski: Thank you. Ladies and gen-

tlemen, in order to answer the question of

whether Poland can become a European arbi-

tration centre, we first need to ask a prelimi-

nary question: Are there any objective grounds

that would encourage establishing such a cen-

tre in Poland specifically? The answer is Yes.

First, because of the geopolitical location of our

country, we are at the crossroads of East and

West, North and South. And this is not just an

issue of geopolitics, which is of great signifi-

cance in this area, because we know that much

depends on the political positions of countries.

If you have their support, there are opportuni-

ties, but without that support there are not. But


PART III

there is also a second factor that we can bar-

gain with: the cultural factor. Namely, we are

the heirs of a tradition of legal culture which

also draws its sources from various traditions,

mainly western, Romance or Germanic, but it

should also be remembered that before the

war, for a certain time in the period following

the partitions the system of Russian law was in

force in some Polish lands. Thus we have a

good geopolitical location and we have a rich

legal tradition. What do we lack? We lack the

most important thing: the right infrastructure.

That has to be built consistently, and slowly,

exploiting the current situation, both objective

and subjective.

Most essential is to build the support, because a

house cannot be built without a foundation. In

my view, a realistic attempt to construct such

support could be made by creating an interna-

tional institute of arbitration law and practice

in Poland, which would be the start for building

the centre that could arise on this foundation.

The institute could serve the functions men-

tioned earlier in our discussion: educational,

training staff and providing continuing educa-

tion for practitioners. Thus it could serve vari-

ous useful purposes, and there is something to

build it on because there are certain elements

of an arbitration centre already existing at the

University of Warsaw. Thus with a little organ-

izational stimulus an attempt could be made to

take it out of the academic structure and build

something greater. In the longer term, of

course, with support from the state being nec-

essary for this, we could think of building a

kind of international arbitration centre in War-

saw along the lines of the LCIA, for example a

“Warsaw Court of International Arbitration,”

or, drawing on the Swedish pattern, affiliated

with the institute I mentioned. In any event, a

degree of positivism is needed here. First it is

necessary to start the fundamental structural

work so that there is solid support for further

efforts.

I firmly believe that there are objective chances

for Warsaw to become an international arbitra-

tion centre in the near future. Our geopolitical

position may be one important element. Note

that it is fairly easy to get to Warsaw from any

country in Europe. Warsaw also has good con-

nections with economic centres in both Ameri-

cas and in Asia.

Thus, exploiting the strengths we have at this

time, we can try to do something. But we will

need support from the world of commerce and

the world of politics.

Dr. Beata Gessel-Kalinowska vel Kalisz: Prof.

Rajski, I think that is a fantastic comment, be-

cause it demonstrates that we have great po-

tential, and together we can accomplish this. I

would just add two elements: Our community

is large, we have numerous legal and scholarly

personnel, and, to put it crudely, we are the

“producer” of some of the biggest and most

prominent disputes anywhere in Europe. With

many disputes, we are also in a position to cre-

ate an active centre to service those disputes. I

think that when it comes to promoting Polish

arbitration, the truly most important thing is to

consolidate the community. This means that we

need to come together and support one an-

other within the existing international institu-

tions, along the lines Paweł discussed. This

doesn’t mean just to hear lots of international

disputes in Warsaw, but also to support one

another on the international arena, whether

through participation in organizations, or

European legislative work, serving as arbitra-

tors, or any other way. We are not just fighting

for Warsaw to become the place of arbitration.

I think we are in a position to achieve this.


PART III

I also think that today’s debate is the first step

toward that goal. We invited all of the major

arbitration institutions to take part, and almost

all of them responded. We are here and talking.

Note that if we look at the other side of the ta-

ble, we see lawyers from various competing

firms. If we manage to come together in this

sense, despite competing with one another

every day, and discuss what should be done to

jointly promote Polish arbitration on the inter-

national arena, it seems to me that this is a

good start and shows that we can do this to-

gether.

Małgorzata Surdek: Ladies and gentlemen,

when I saw the title of this debate I thought it

would be interesting to debate a slight varia-

tion on the topic: not whether Poland can be-

come a European or regional arbitration cen-

tre, but how Poland can become such a centre.

Prof. Rajski pointed to the potential, in the

sense of the geopolitical position and a certain

legal tradition. Nonetheless I have the impres-

sion that we are sorely missing something in

our discussion. We said first with a certain

amount of reserve, and then more and more

openly, that when we talk about arbitration we

are talking about business. We also use words

like “competitiveness”—being competitive

with other arbitration centres. We should not

limit our discussion only to how to remove the

legal barriers. Although that is clearly an im-

portant point and without any doubt encour-

ages promotion of arbitration, it does not guar-

antee success.

This means that it is not just about removing

barriers, and amending the Civil Procedure

Code, but we need to consider what incentives

we could create so that Warsaw, and Poland,

would really be taken seriously as an arbitra-

tion centre. Maybe not yet equal to the first

league, but at least the second. We are able to

identify fields for potential expansion. We can

point to Eastern Europe, and Southern Europe,

but we are not focusing our debate on what in

fact would encourage a company from Lithua-

nia, or Slovenia, or Kazakhstan to decide on

arbitration in Warsaw instead of London, Paris

or Stockholm. Thus I think that we should de-

vote a lot attention to this if the discussion is

truly going to change anything.

Raising the profile of the Polish arbitration

community in the international debate is abso-

lutely crucial. Of course, I agree with Mr

Jamka’s diagnosis that we practically have no

presence. Maybe that is too harsh, but we are

insufficiently present in the international de-

bate.

The third and final reflection is that state sup-

port is absolutely necessary. Arbitration, and

organizing an international arbitration centre,

is one way to promote the country. Just as the

French government fought to keep the ICC

headquarters in Paris, and just as countries

promote themselves and compete to host the

Olympics or other sports events, so also, it

seems to me, without the active role of the state

we will not manage to quickly reach the place

we want to be. Thank you.

Summary of the Debate

Prof. Andrzej Kidyba, prof. Marek Michalski, dr Beata Gessel-Kalinowska vel Kalisz


SUMMARY

Prof. Andrzej Kidyba: Let us sum up. I think

that today’s meeting was, in fact, a discussion

on the condition in which Polish arbitration

currently finds itself. I shall not dwell upon the

issues addressed by the last panel because one

can only support the voices diagnosing the

situation and stating that arbitration should be

internationalised. I wonder, however, if the

situation is as good as it has been presented

here. What really worries me is the small num-

ber of cases tried by arbitration courts. There is

no doubt that we do not have many cases. I

think that, taking into account certain past be-

haviour, we should concentrate on promoting

arbitration. As Ms. Gessel informed us, we have

here two people representing the Ministry of

Justice, and that Ministry recognizes the prob-

lem of arbitration. I guess there is plenty of

room for promoting such activities.

It is really good that Mr. Bobrowicz and the

representatives of the Supreme Bar Council

and the commercial chambers were here with

us. This idea should really by explored and

promoted to cause an increase in the number

of cases.

We have pointed out certain features of arbi-

tration. My learned colleague began with such a

distinction. I have doubts as to whether the

features enumerated here result from self-

judgement or arise from a comparison with the

common court system. I think that the latter is

true. I am of the opinion that we really need a

more profound discussion on the situation in

which arbitration finds itself right now, and

about the problems we may encounter. Such

issues have been highlighted here. If we men-

tion the pace of the proceedings, we cannot

ignore the issue of complaints - just as Ms. Ges-

sel said. If we argue against flattening the sin-

gle-instance system of arbitration courts, we

would lengthen the proceedings and make

them more costly. Then the features of arbitra-

tion which we have pointed out, such as the

fact that it is inexpensive and fast, will fail to

exist in reality.

I think that there is also a certain client-related

issue which is sometimes raised in unofficial

discussions and sometimes completely ignored.

There are relations in which arbitrators are

involved and standards which should prevent

such situations. I have come across many situa-

tions in which an arbitrator fails to understand

his or her role, because he or she acts as an at-

torney or even an ally of a party to the proceed-

ings.

The other problem which is worth discussing,

and which has already surfaced today, is the

issue of the “transparency” of actions under-

taken by an arbitrator. In some courts an arbi-

trator may, on one day, be in charge of a case

hearing and on another day perform the duties

of an attorney. I think that this should also be

the subject of a wider discussion.

Another problem is the issue of the exclusion of

arbitrators.


SUMMARY

To cut a long story short, there was not much

unity showed today. Some of us expressed an

opinion that the pace of arbitration proceed-

ings is too fast, some that it is too long, some

said that arbitration was expensive, and some

the contrary. I do not agree with the opinion

expressed by Prof. Chłopecki that the principle

of the asymmetry of costs was applied by the

arbitration court at the Polish Financial Super-

vision Authority leading to cost minimization.

Well, such cost asymmetry failed to translate

itself into the number of cases because this

number is really very small. I would rather

share the opinion that we should really operate

according to the principle that “cheap meat

never makes good soup”. I do not think that

costs have any influence on arbitration clauses.

I would also like to draw you attention to a cer-

tain idealism that we have come across here a

couple of times. Mr. Wardyński said that arbi-

tration was not for the type of people who en-

joy court processes. Agreed. Then we had some

other opinions demonstrating a certain ideal-

ism. Someone said that if we agree on an arbi-

trator, we automatically agree on the award. If

this were true in practice, and I have recently

participated in a great many arbitration cases

at the arbitration court at the Association of

Polish Banks, then court employees would not

do what they actually do, i.e. they photocopy

court files. At the request of the parties. Then

the parties wish to challenge the awards. The

practice is then contrary to the idealism.

I think that this has been a very good meeting.

All the opinions were so clear and interesting

that there is no need to address them individu-

ally. It would make it a really long debate. And

Professor Michalski would silence me very

shortly. Thank you very much.

Prof. Marek Michalski: Let me also share

with you some of my own opinions. They relate

to different facets of the discussion and prob-

lems which occurred during individual panel

discussions.

Let me refer to the last panel, in which the idea

of an arbitration centre in Warsaw was brought

up. How does the idea of an arbitration centre

in Warsaw, or even a regional centre, relate to

the fact that, according to what Mr. Bobrowicz

said in his presentation, approximately 77% of

entrepreneurs do not feel the need to use the

support of lawyers in their operations? The

necessity of lawyers participating in business

ventures is growing. We observe that there is a

need for specialization, which is the conse-

quence of the dynamics of the social, economic

and technological processes which we are en-

countering. There is also the issue of profes-

sionalism which we have already mentioned in

the context of arbitration and the lack of spe-

cialized jurisdiction.

By the way, I would like to point out that at the

beginning of the nineties there was a discus-

sion about whether a stock exchange court

dealing with securities cases should be ap-

pointed. The court obviously did not come into

existence, but please bear in mind that there

are currently a great number of cases related to

the financial market, financial instruments, and

options, and that not a great number of them

reach arbitration. We should extend the scope

of arbitration activities to such areas because

we have access to great experts.

At this stage, I come to the common denomina-

tor of all the subjects raised today , i.e. the

question of the training young lawyers and

preparing them to work in the field of arbitra-

tion and to promote arbitration as such. If we

take into account all the tools that we have to

promote arbitration and introduce it to a wider

audience, this is one of the truly important

ones. If arbitration becomes part of a university


SUMMARY

or internship curriculum, the awareness of

lawyers concerning the advantages of arbitra-

tion will increase.

Let me finish here with the hope that our meet-

ing has raised certain issues, of which there are

plenty, and as Professor Rajski said, each dis-

cussion could become a separate conference. I

think that it would be worth continuing such

discussions, and I address this hope to our host,

Ms. Gessel. I hereby formally close the debate

and give the floor to Ms. Gessel.

Dr. Beata Gessel-Kalinowska vel Kalisz: La-

dies and gentleman, I wish to thank you for

your participation in the debate and I also wish

to thank the participants who are watching the

live coverage via the Internet. The original aim

of the debate was to raise certain issues which

are important in arbitration circles as a whole

and to start up a long-term discussion. Thanks

to your participation, we have achieved our

goal and, as Professor Rajski suggested, we

now have to “sort out” the problems which, I

hope, will be the subject of our subsequent

meetings. Thank you again and let me now in-

vite you to our gala dinner.

Documents

Editorial Board - sadarbitrazowy.org.pl · Jacek Kaczmarek, Jerzy Rajski, Beata Gessel-Kalinowska vel Kalisz, Małgorzata Surdek 45 SUMMARY Andrzej Kidyba, Beata Gessel-Kalinowska