Publications

„The Liber Amicorum which we now present to you is a tribute to Professor Jerzy Rajski honouring his 50th year of arbitration work.

Professor Rajski has served as an arbitrator in dozens of arbitrations, international and domestic, commercial and investment, in Poland and abroad, conducted in Polish as well as in English, French, and Spanish. He has had a unique opportunity to observe how arbitration has evolved through all these years and to appreciate the sheer scale of these changes – in two dimensions. On the one hand, he witnessed first-hand the epochal shift taking place in Poland and in other member countries of the Warsaw Pact, where commercial arbitration set out on an entirely new path in 1989. On the other, he had an active role in the organic evolution of arbitration in the West. This rich experience, combined with his extensive expertise in comparative private law, has led him to pose important questions concerning the nature, utility, and significance of arbitration now and in the future.

Fifteen years ago, Professor Rajski concluded that the nature of international disputes is incompatible with the state court system for dispute resolution because of its intrastate character. In Poland, there was an additional problem of the lengthy proceedings. For these reasons, Professor Rajski looked to international arbitration as the answer to the needs of the business community. Apart from its advantages – such as confidentiality, enforcement of awards on an international scale, professionalism of arbitrators, or timing – he described international arbitration as a system of justice which, due to harmonisation processes, was becoming ever more coherent and unified. Such unification is the result of international treaties as well as of soft law production.

Being as it is a good response to the needs of business, arbitration is expanding to new areas of disputes, such as corporate or intellectual property. Proper transformation of international arbitration into a competitive system of justice has been the biggest challenge of contemporary international arbitration. On the other hand, Professor Rajski did not identifythis system with any kind of business structure – he always emphasized the distinct values and ethos of arbitration and of its practitioners. ‘Arbitration is justice. Justice is not a business’, as he reminded us at the Forum of New Ideas in 2011. In one of our discussions, Professor Rajski concluded that, considering the growing judicialisation of arbitration (visible in, among other factors, increasing resort to tools familiar from classic litigation), the main difference between those two systems – that between ius and lex, where arbitration is a manifestation of ius, and litigation of lex – ought to be cultivated and preserved.

These ideas of Professor Rajski were the true inspiration for this book. We have extrapolated upon many of the strands included in Professor Rajski’s own publications and lectures, discussing issues such as globalisation, harmonisation, judicialisation, or professionalisation in the context of arbitration and its institutions. We also discuss what we consider to be a new strand – what is known as glocalisation. Professor Rajski himself has noted that, despite of its continuing transformation into a coherent system, it might be that arbitration does not fully respond to the needs of business, resulting in the growth of other alternative dispute resolution methods, such as mediation. This topic has been elaborated upon in these pages by J. Jemielniak, who clearly sees the development of ADR as a counteroffer to globalised arbitration. S. Breloulakis questions the feasibility of a transnational definition of the public policy concept, opting instead for a national doctrine which should ncompass a set of rules the primary purpose of which is to give effect to state public interest. These points contribute to the broader debate on globalisation versus glocalisation of arbitration.

This book is divided into eight areas, based on the subject matter to which the given chapter refers. We do admit that such classification may seem a bit contrived at times, seeing as numerous chapters have more of a cross-disciplinary character, with specific topics taken as a spring-board for wider deliberations. This book is of particular significance also for its publisher. Professor Rajski has served as a member of the Honorary Advisory Committee and has actively supported what was then a fledgling arbitration institution which has since developed into the Lewiatan Court of Arbitration.”

Beata Gessel-Kalinowska vel Kalisz

1. Akinci Karen
2. Almoguera Jesus
3. Asłanowicz Marcin
4. Bělohlávek Alexander J
5. Bernatonis Vilius
6. Blanke Gordon
7. Błaszczak Łukasz
8. Brekoulakis Stavros
9. Burger Laurence
10. Charlton Anthony
11. Dziurda Marcin
12. Elsing Siegfried
13. Ereciński Tadeusz
14. Frąckowiak Józef
15. Gessel Beata
16. Hauser-Morel Maria
17. Jemielniak Joanna
18. Jeżewski Marek
19. Kaćevska Inga
20. Kimberly Sarah
21. Kocur Michał
22. Kos Rafał
23. Machnikowski Piotr
24. Melis Werner
25. Meulemeester Dirk
26. Michałowska Katarzyna
27. Morek Rafał
28. Mourre Alexis
29. Nazarova Irina
30. Nowaczyk Piotr
31. Pazdan Jawiga
32. Pazdan Maksymilian
33. Philippe Mireze
34. Pukszto Anna
35. Rana Rashda
36. Rewald Roman
37. Sadowski Wojciech
38. Sołtysiński Stanisław
39. Stefanowicz Krzysztof
40. Varga Istvan
41. Wardyński Tomasz
42. Wegen Gerhard
43. Weitz Karol
44. Welser Irene
45. Wilske Stephan
46. Zielińska Alicja

Honorary Committee:

Gary Born
Prof. Bernardo M. Cremades
Prof. Ives Fortier
Prof. Julian DM Lew
Dr. Werner Melis
Prof. Stanislaw Sołtysiński

Organizing Committee:

Dr Beata Gessel-Kalinowska aka Kalisz
Bartosz Krużewski
Dr Katarzyna Michałowska

The book can be purchased at the Lewiatan Court of Arbitration.

Price: EUR 90

To purchase the book, please contact us at: sadarbitrazowy@konfederacjalewiatan.pl

Transfer details in EUR:

PEKAO S.A. III o/Warsaw
Konfederacja LEWIATAN
IBAN: PL07 1240 1040 1978 0010 4940 5065
SWIFT: PKOPPLPW

Data for transfer in PLN:

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Account number: 69 1240 1040 1111 0000 0136 1232
Amount: The equivalent of EUR 90 converted into PLN according to the average exchange rate announced by the National Bank of Poland on preceding the day of payment

We cordially encourage you to buy the book!

The most straightforward way to define arbitration is to state that conflicted parties jointly designate a third party tasked with rendering a judgement providing a resolution to the dispute at hand. Even at an intuitive level one remains aware that we are discussing the most long-established method of dispute resolution which has been invented a few thousand years ago. Arbitration is a method of dispute resolution which continues to develop in free societies.

As described by J. Paulsson, arbitration represents a political philosophy based on the assumption that citizens should be free to shape their private relations as they see fit, subject, obviously to the coercive rules of law (ius cogens) and principles of the public order. The more the political system of a given state edges towards totalitarianism, the less convenient arbitration becomes, since it fails to secure the central planning of specific areas of activity.

Poland may serve as an excellent example here. Prior to the fundamental changes in our political system in 1989, arbitration was not available with respect to domestic legal relations, to state- or cooperative-owned enterprises, constituting economic sector of that time. Disputes in this area were resolved by Państwowy Arbitraż Gospodarczy (State Economic Arbitral Institution), which, however, was simply one of state judicial authorities and had little to do with actual arbitration, save perhaps for its name. A. W. Wiśniewski submits that permitting an arbitration court to make judicial rulings in those days was perceived as an exceptional concession on the part of the government, while arbitration itself was seen as an institution posing a danger to both its users and the legal order as such. The political transformation which took place more than two decades ago has caused the perception of arbitration to change, followed by changes of the legal infrastructure in this field.

At this point, it is worth to briefly analyze the evolution of the contemporary Polish arbitration law. Its development may be divided into two stages. The first stage was initiated by the aforementioned changes which took place in 1989, opening up the possibility for settlement of disputes before an arbitration court to any person of law in Poland. The second stage begun with the amendment of 2005, providing for the addition of the fifth part to the Code of Civil Procedure, dedicated to the issue of arbitration. The newly enacted provisions adjusted the Code of Civil Procedure to international standards contained in the 1985 UNCITRAL Model Law. Today, there is no doubt that Polish arbitration law generally deserves to be called a thoroughly modern set of rules which complies with the applicable international standards. One year after the Polish novelization of 2005, on July 7, 2006, the United Nations Commission on International Trade Law adopted an amendment to the Model Law, adjusting its provisions to the changing requirements of contemporary global trade exchange. Changes made to the provisions of the Model Law reflect the overall tendency discerned in both international law and in the legislation of other states, aimed at ensuring the liberalization of regulations pertaining to arbitration or the more liberal interpretation of existing provisions. The Polish legislator, however, did not choose to modify the provisions of Part V of the Civil Procedure Code in order to adjust it to the amended Model Law, even though such an option is definitely worth considering. Legal commentators suggest to amend arbitration law in order to lift the restrictions pertaining to the recognition of disputes. (…)

The aim of the present publication is to contribute towards the commencement of a broad discussion on the need for legislative change of the arbitration law in Poland. The present publication has been divided into parts which refer to the structure of Part V of the Code of Civil Procedure; for the above reason, the matters specified below shall be discussed in the following order: general issues, arbitration agreement, composition of the arbitration court, jurisdiction of the arbitration court, proceedings before the arbitration court and awards rendered by such court as well as the jointly discussed issues of post-arbitration proceedings pertaining to claims for annulment of the arbitral award as well as proceedings pertaining to the recognition and performance of arbitral awards. With respect to each issue, the authors of this publication have compared the regulations contained in the Code with the provisions of the Model Law in its 2006 iteration (as well as, in some cases, with the legislation of other countries), subsequently proceeding to analyze the existing case law and preparing commentaries to selected court judgements. Each section of the present publication ends with a list of issues which, according to each respective author, should be the subject of extensive discussion.

The authors represent a variety of academic backgrounds: the Leon Koźmiński Academy, the Jagiellonian University, the Silesian University, the Adam Mickiewicz University in Poznań, the Wrocław University and the Cardinal Stefan Wyszyński University. However, the aim of the present publication has never been to produce a consistent position with respect to individual issues, even though many of those issues were discussed during preparatory works. We hope that the present publication will serve as the foundation for further debate on the proposed changes to Part V of the Code of Civil Procedure.

In the spring of 2013 within the framework of the Project  “Competitiveness of Arbitration” cofinanced by the European Union  within the European Social Fund began work on the preparation of proposals for changes to the Polish arbitration law. The research team consisted of following persons: Dr hab. Łukasz Błaszczak, Dr hab. Rafał Sikorski, Dr Maciej Zachariasiewicz, Dr Karol Zawiślak, Dr hab. Grzegorz Żmij, led by Dr Beata Gessel-Kalinowska vel Kalisz. The work was divided into three stages. The first stage involved the analysis of the current legal status, the results of which was published in the “Polish Arbitration Law”.

In the second stage, de lege ferenda remarks reported in the “Polish arbitration law” was the main subject of the Conference about Polish arbitration law held at the Royal Castle in Warsaw on 18 September, 2014. In parallel, all these issues have been presented to a wide audience in the form of a survey published on the website of the Lewiatan Court of Arbitration and arranged among the participants of the Conference.

Abovementioned analyzes and discussions were used by the research team to write White Book of Arbitration which is intended to summarize the proposals to amend the Code of Civil Procedure reported in doctrine and practice and the submission of one comprehensive set of proposal of amendments.

On 20 November 2014 this publication was forwarded to the Minister Mariusz Haładyj and to the Minister Wojciech Węgrzyn as well as to the media.

White Book of Arbitration is available only in Polish.

The publication has been issued within the framework of the Project  “Competitiveness of Arbitration” cofinanced by the European Union  within the European Social Fund, and can be obtained free of charge.

„The aim of the book „Arbitration in Poland” is to familiarize the reader with the principles of functioning of the system of arbitration norms in Poland. However, it does not have the character of a textbook or a guide that exhaustively presents all the issues. The image of arbitration has been built on the basis of its selected fragments, characteristic of certain types of disputes. And so, disputes involving the State Treasury (M. Dziurda, A. Olszewski), disputes related to the regulated market (A. Chłopecki), construction disputes (M. Jamka, A. Barczewski.) and corporate disputes (B. Gessel-Kalinowska aka Kalisz). The introductory chapter took the form of an essay in which the author (K. Stefanowicz) does not so much describe the Polish arbitration law system in general, but rather shares some personal thoughts on it. The whole was summarized with a short chapter containing reflections on arbitration in Poland from the perspective of a foreigner (G. Wegen).”

red. dr Beata Gessel-Kalinowska vel Kalisz

• Arbitration e-Review No. 3-4 (18-19)/2014
• Arbitration e-Review Special Issue 2014
• Arbitration e-Review No. 1-2(16-17)/2014
• Arbitration e-Review No. 3-4(14-15)/2013
• Arbitration e-Review 1-2(12-13)/2013
• Arbitration e-Review Special Issue 2013
• Arbitration e-Review 3-4(10-11)/2012
• Arbitration e-Review No. 2(9)/2012
• Arbitration e-Review No. 1(8)/2012
• Arbitration e-Review No. 4(7)/2011
• Arbitration e-Review No. 3(6)/2011
• Arbitration e-Review No. 2(5)/2011
• Arbitration e-Review No. 1(4)/2011
• Arbitration e-Review No. 3(3)/2010
• Arbitration e-Review No. 2(2)/2010
• e-Przegląd Arbitrażowy 1(1)/2010