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Subduction earthquakes; Paleoseismology. Mechanics of oblique subduction, Structural Geology, Accretion and erosion of active margins; Seafloor imaging, mapping, and visualization techniques; Seafloor drilling technology.
Submarine Paleoseismology offshore, and lacustrine paleoseismology, earthquake recurrence; active oblique faulting and block rotation in the Cascadia subduction zone; relationship of forearc deformation to earthquake potential in convergent margins; earthquake potential of plate boundary fault zones including Cascadia, Sumatra, Chile, the Northern San Andreas; Habitat mapping and Bayesian modeling of habitat suitability probability.
Appelgate, B., Goldfinger, C., Kulm, L.D., MacKay, M., Fox, C.G., Embley, R.W., and Meis, P.J., 1992, A left lateral strike slip fault seaward of the central Oregon convergent margin: Tectonics, v. 11, p. 465-477.
Bellman, M., Heppell, S., Goldfinger C., 2005, Evaluation of a U.S. West Coast Groundfish Habitat Conservation Regulation via Analysis of Spatial and Temporal Patterns of Trawl Fishing Effort, in Greene and Todd, eds., Marine Geological and Benthic Habitat Mapping, Canadian Journal of Fisheries Aquatic Science, v. 62, p. 2886–2900.
Chaytor, J.D., Goldfinger, C., Dziak, R.P., and Fox, C.G., 2004, Active deformation of the Gorda plate: Constraining deformation models with new geophysical data: Geology, v. 32, p. 353-356.
Chaytor, J. D., Chris Goldfinger, C., Meiner, M. A., Huftile, G. J., Romsos, C. G., and Legg, M. R., 2008, Measuring Vertical Tectonic Motion at the Intersection of the Santa Cruz-Catalina Ridge and Northern Channel Islands Platform, California Continental Borderland, Using Submerged Paleoshorelines, Bulletin of the Geological Society of America, v. 120. P. 1053-1071.
Copps, S., Parkes, G., Wakefield, W., Yoklavich, M., Bailey, A., Goldfinger, C., Greene, G., 2008, Integration of Geology and Fish Ecology to Assess West Coast Essential Fish Habitat for Groundfishes at the Scale of the Exclusive Economic Zone: in Todd, B.J., and Greene, G., eds., Mapping the Seafloor for Habitat Characterization: Geological Association of Canada Special Paper 47, p. 439-450.
Dziak, R.P., Fox, C.G., Bobbitt, A., and Goldfinger, C., 2001, Bathymetric Map of the Gorda Plate: Structural and Geomorphological Processes Inferred from Mulitbeam Surveys, Marine Geophysical Researches, v. 22, p. 235-250.
Goldfinger, C., Kulm, L.D., Yeats, R.S., Appelgate, B., MacKay, M., and Moore, G.F., 1992, Transverse structural trends along the Oregon convergent margin: implications for Cascadia earthquake potential: Geology, v. 20, p. 141-144.
Goldfinger, C., 1994, Active deformation of the Cascadia forearc: Implications for great earthquake potential in Oregon and Washington [PhD thesis]: Corvallis, Oregon State University, 202 pp.
Goldfinger, C., Kulm, L.D., Yeats, R.S., Hummon, C., Huftile, G.J., Niem, A.R., Fox, C.G., and McNeill, L.C., 1996, Oblique strike-slip faulting of the Cascadia submarine forearc: The Daisy Bank fault zone off central Oregon, in Bebout, G.E., Scholl, D., Kirby, S., and Platt, J.P., eds., Subduction top to bottom, AGU Geophysical Monograph 96, Washington, D. C., American Geophysical Union, p. 65-74.
Goldfinger, C., Kulm, L.D., Yeats, R.S., Appelgate, B., MacKay, M., and Cochrane, G.R., 1996, Active strike-slip faulting and folding of the Cascadia plate boundary and forearc in central and northern Oregon, in Rogers, A.M., Walsh, T.J., Kockelman, W.J., and Priest, G., eds., Assessing and reducing earthquake hazards in the Pacific Northwest, Volume I, U.S.G.S. Professional Paper 1560, U.S. Geological Survey.
Goldfinger, C., Kulm, L.D., Yeats, R.S., McNeill, L.C., and Hummon, C., 1997, Oblique strike-slip faulting of the central Cascadia submarine forearc: Journal of Geophysical Research, v. 102, p. 8217-8243.
Goldfinger, C., and McNeill, L.C., 1997, Case study of GIS data integration and visualization in submarine tectonic investigations: Cascadia subduction zone: Marine Geodesy, v. 20, p. 267-289.
Goldfinger, C., 1999, Active Tectonics: Data Acquisition and Analysis with Marine GIS , in Wright, D. J., and Bartlett, D. J., eds., Marine and Coastal Geographic Information Systems: London , Taylor and Francis, Research Monographs in GIS, p. 237-254.
Goldfinger, C., Kulm, L.D., McNeill, L.C., and Watts, P., 2000, Super-scale failure of the southern Oregon Cascadia margin: Pure and Applied Geophysics, v. 157,. p. 1189-1226.
Goldfinger, C., Dziak, R., and Fox, C., 2002 Offshore structure of the Juan de Fuca Plate from marine seismic and sonar studies, in: Kirby, Stephen, Wang, Kelin, and Dunlop, Susan, eds., 2002, The Cascadia Subduction Zone and Related Subduction Systems-Seismic Structure, Intraslab Earthquakes and Processes, and Earthquake Hazards: U.S. Geological Survey Open-File Report 02-328, 169 p. on 1 CD-ROM, and Geological Survey of Canada Open File 4350 p. 23-26.
Goldfinger, C., Romsos, C., Robison, R., Milstein, R., and Myers, S. A, 2002, Interim Seafloor Lithology Maps for Oregon and Washington, Oregon State University Active Tectonics and Seafloor Mapping Laboratory Publication 02-01, 1 digital multilayer map on CD, and text, 11 pp.
—, 2003, Holocene Earthquake Records From the Cascadia Subduction Zone and Northern San Andreas Fault Based on Precise Dating of Offshore Turbidites: Annual Reviews of Earth and Planetary Sciences, v. 31, p. 555-577.
Goldfinger, C., Morey, A.E., Nelson, C.H., Gutiérrez-Pastor, J., Johnson, J.E., Karabanov, E., Chaytor, J., Ericsson, A., and shipboard scientific party, 2007, Rupture lengths and temporal history of significant earthquakes on the Offshore and Northcoast segments of the Northern San Andreas Fault based on turbidite stratigraphy, Earth and Planetary Science Letters, v. 254, p. 9-27.
Goldfinger, C., Grijalva, K., Burgmann, R., Morey, A.E., Johnson, J.E., Nelson, C.H., Gutierrez-Pastor, J., Karabanov, E., Chaytor, J.D., Patton, J., and Gracia, E., 2008, Late Holocene Rupture of the Northern San Andreas Fault and Possible Stress Linkage to the Cascadia Subduction Zone, Bulletin of the Seismological Society of America, v. 98, p. 861-889.
Goldfinger, C., Patton, J.R., Morey, A.M., 2009, Reply to comment on "Late Holocene Rupture of the Northern San Andreas Fault and Possible Stress Linkage to the Cascadia Subduction Zone, Goldfinger, C., Grijalva, K., Burgmann, R., Morey, A., Johnson, J.E., Nelson, C.H., Ericsson, A., Gutiérrez-Pastor, J., Patton, J., Karabanov, E., Gracia, E.", Bulletin of the Seismological Society of America, v. 98, p. 861-889, 8 pp.
Goldfinger, C., 2009, Subaqueous Paleoseismology, in Mcalpin, J., ed., Paleoseismology, 2nd edition, Elsevier, p. 119-169.
Goldfinger, C., 2011, Submarine Paleoseismology Based on Turbidite Records, Annual Reviews of Marine Science, v. 3, p. 35-66.
Goldfinger, C., Ikeda, Y., Yeats, R.S., Superquakes, Supercycles and Global Earthquake Clustering, 2013, EARTH Vol. 58 (No. 1), p. 34.
Goldfinger, C., Patton, J., Van Daele, M., Moernaut, J., Nelson, C.H., De Batist, M., and Morey, A.M., 2015, Comment on “Can Turbidites be Used to Reconstruct a Paleoearthquake Record for the Central Sumatran Margin?, Geology, v. 42, p. e344, doi: 10.1130/G35558C.1.
Goldfinger, C., Galer, S., Beeson, J.W., Hamilton, T.S, Black, B., Romsos, C., Patton, J., Nelson, C.H., Hausmann, R., Morey,A., 2016, The Importance of Site Selection, Sediment Supply, and Hydrodynamics: A Case Study of Submarine Paleoseismology on the Northern Cascadia margin, Washington USA, Marine Geology, In Press.
Gracia, E., Vizcaino, A., Escutia, C., Asioli, A., Rodes, A., Palla, R., Garcia-Orellana, J., Lebreiro, S., Goldfinger, C., 2010, Holocene Earthquake Record Offshore Portugal (SW Iberia): Testing turbidite paleoseismology in a slow-convergence margin, Quaternary Science Reviews, v. 29, p. 1156-1172.
Gutierrez-Pastor, J., Nelson, C.H., Goldfinger, C., Johnson, J.E., Escutia, C., Eriksson, A., and Morey, A., 2009, Earthquake Control of Holocene Turbidite Frequency Confirmed by Hemipelagic Sedimentation Chronology on The Cascadia and Northern California Active Continental Margins, in Kneller, B., Martinsen, O.J., and McCaffrey, W., eds., External Controls on Deep-Water Depositional Systems, Society for Sedimentary Geology Special Publication, Volume 92: London, Society for Sedimentary Geology p. 179-197.
Gutierrez-Pastor, J., Nelson, C.H., Goldfinger, C., Escutia, C., 2012, Sedimentology of Seismo-Turbidites off the Cascadia and Northern California Active Tectonic Continental Margins, Northwest Pacific Ocean, Marine Geology, doi: 10.1016/j.margeo.2012.11.010.
Havron, A., Goldfinger, C., Henkel, S., Marcot, B.G., Romsos, C., Gilbane, L., 2016 submitted, Mapping marine habitat suitability and uncertainty using Bayesian networks: a case study of northeastern Pacific benthic macrofauna.
Johnson, J.E., Goldfinger, C., Bangs, N.L., Tréhu, A.M. and Chevallier, J., In revision, Structural vergence variation and clockwise block rotation in the Hydrate Ridge region, Cascadia accretionary wedge offshore Oregon.
Johnson, J.E., Goldfinger, C., and Suess, E., 2003, Geophysical constraints on the surface distribution of authigenic carbonates aross the Hydrate Ridge region, Cascadia margin: Marine Geology, v. 202, p. 79-110.
Johnson, J.E., Goldfinger, C, Trehu, A.M., Bangs, N., Torres, M.E., and Chevallier, J., 2005, North-south variability in the history of deformation and fluid venting across hydrate ridge, Cascadia margin, Proceedings of the Ocean Drilling Program Scientific Results, Volume 204.
Kulkarni, R., Wong, I., Zachariasen, J., and Goldfinger, C., 2013, Statistical Analyses of Great Earthquake Recurrence Along the Cascadia Subduction Zone, Bulletin of the Seismological Society of America, Vol. 103, No. 6, pp. 1–17, December 2013, doi: 10.1785/0120120105.
Milstein, R., Kamerling, M., 2004 Large Enigmatic Crater Structures Offshore Southern California: Geophysical Journal International, v.159, n.2, p.803-815.
McCaffrey, R., and Goldfinger, C., 1995, Forearc deformation and great earthquakes: Implications for Cascadia earthquake potential: Science, v. 267, p. 856-859.
McCaffrey, R., Long, M., Goldfinger, C., Nabelek, J., Johnson, C., Zwick, P., and Smith, C., 2000, Rotation and plate locking at the southern Cascadia subduction zone: Geophys. Res. Letts., v. 27, p. 3117-3120.
McNeill, L.C., Goldfinger, C., Kulm, L.D., and Yeats, R.S., 2000, Tectonics of the Neogene Cascadia forearc basin: Investigations of a deformed late Miocene unconformity: Geological Society of America Bulletin, v. 112, p. 1209-1224.
McNeill, L.C., Goldfinger, C., Yeats, R.S., and Kulm, L.D., 1998, The effects of upper plate deformation on records of prehistoric Cascadia subduction zone earthquakes, in Stewart, I.S., and Vita-Finzi, C., eds., Coastal Tectonics, Volume Special Publications 146: London, Geological Society, p. 321-342.
McNeill, L.C., Piper, K.A., Goldfinger, C., Kulm, L.D., and Yeats, R.S., 1997, Listric normal faulting on the Cascadia continental margin: Journal of Geophysical Research, v. 102, p. 12,123-12,138.
Miller, M., Dragert, H., Endo, E., Freymueller, J.T., Goldfinger, C., Kelsey, H.M., Humphreys, E.D., Johnson, D.J., McCaffrey, R.M., Oldow, J.S., Qamar, A., and Rubin, C.M., 1998, Precise measurements help gauge Pacific Northwest's Earthquake potential: EOS, v. 79, p. 269-275.
Miller, M.M., Johnson, D.J., Rubin, C.M., Dragert, H., Wang, K., Qamar, A., and Goldfinger, C., 2001, GPS-determination of along-strike variation in Cascadia margin kinematics: Implications for relative plate motion, subduction zone coupling, and permanent deformation: Tectonics, v. 20, p. 161-176.
Morey, A. E., Mix, A.C., Pisias, N.G., 2005, Planktonic foraminiferal assemblages preserved in surface sediments correspond to multiple environmental variable, Quaternary Science Reviews, v. 24, p. 925-950.
Morey, A. E., Goldfinger, C., Briles, C. E., Gavin, D. G., Colombaroli, D., and Kusler, J. E.,2013, Are great Cascadia earthquakes recorded in the sedimentary records from small forearc lakes?, Natural Hazards and Earth System Sciences,v. 13, 1–23.
Nelson, C.H., Goldfinger, C., Johnson, J.E., and Dunhill, G., 2000, Variation of modern turbidite systems along the subduction zone margin of Cascadia Basin and implications for turbidite reservoir beds, in P.W. Weimer, R.M. Slatt, J. Coleman, N.C. Rosen, C.H. Nelson, A.H. Bouma, M.J. Styzen, D.T. Lawrence, eds., Deep-water Reservoirs of the World: 20th Annual Research Conference, Gulf Coast Section Society of Economic Paleontologists and Mineralogists, p. 31 pp.
Nelson, C.H., Escutia, C., Goldfinger, C., Karabanov, E., Gutierrez-Pastor, J., and De Batist, M., 2009, External controls on modern clastic turbidite systems: three case studies, in Kneller, B., Martinsen, O.J., and McCaffrey, W., eds., Society for Sedimentary Geology Special Publication, Volume 92: London, Society for Sedimentary Geology, p. 57-76.
Nelson, C.H., Escutia, C., Damuth, J.E., and Twitchell, D.C., 2011, Interplay of mass-transport and turbidite-system deposits in different active tectonic and passive continental margin settings: external and local controlling factors: Society for Sedimentary Geology Special Publication, v. 96, p. 39–66.
Nelson, C.H., Gutiérrez-Pastor, J., Goldfinger, C., and Escutia, C., 2012, Great earthquakes along the Western United States continental margin: implications for hazards, stratigraphy and turbidite lithology: Nat. Hazards Earth Syst. Sci., v. 12, p. 3191-3208.
Priest, G. R., Goldfinger, C., Wang, W., Witter, R. C. Zhang, Y., 2009, Confidence levels for tsunami-inundation limits in northern Oregon inferred from a 10,000-year history of great earthquakes at the Cascadia subduction zone, Natural Hazards v. 54, p. 27-73. DOI 10.1007/s11069-009-9453-5.
Priest G.R, Goldfinger C, Wang K, Witter RC, Zhang Y, Baptista A.M., 2009, Tsunami hazard assessment of the Northern Oregon coast: a multi-deterministic approach tested at Cannon Beach, Clatsop County, Oregon. Oregon Department of Geology Mineral Industries Special Paper 41, 89p. plus Appendix and GIS files.
Priest, G.R., Zhang, Y., Witter, R.C., Wang, K., Goldfinger, C., and Stimely, L., 2014, Tsunami impact to Washington and northern Oregon from segment ruptures on the southern Cascadia subduction zone, Natural Hazards, v. 72, p, 849–870.
George R. Priest, Robert C. Witter, Y. Joseph Zhang, Kelin Wang, Chris Goldfinger, Laura L. Stimely, John T. English, Sean G. Pickner, Kaleena L.B. Hughes, Taylore E. Wille, and Rachel L. Smith, 2013, Tsunami Inundation Scenarios for Oregon, Oregon Department of Geology and Mineral Industries, Open-File Report O-13-19, 14 pp, GIS datasets.
Romsos, C., Goldfinger, C., C., Robison, R., Milstein, R., Chaytor, J., 2007, Development of a Regional Seafloor Surficial Geologic Habitat Map for the Continental Margins of Oregon and Washington, USA in Todd, B.J., and Greene, G., eds., Mapping the Seafloor for Habitat Characterization: Geological Association of Canada Special Paper 47, p. 209-234.
Suess, E., Torres, M., Bohrmann, G., Collier, R.W., Rickert, D., Goldfinger, C., Linke, P., Heuser, A., Sahling, H., Heeschen, K., Jung, C., Nakamura, K., Greinert, J., Pfannkuche, O., Trehu, A., Klinkhammer, G., Whiticar, M.J., Eisenhauer, A., Teichert, B., and Elvert, M., 2001, Sea Floor methane hydrates at Hydrate Ridge, Cascadia Margin: American Geophysical Union Monograph 124, p. 87-98.
Tolimieri, N., Clarke, M.E., Singh, H. and Goldfinger, C., 2008, Development of the SeaBED AUV to monitor populations of west coast groundfish in untrawlable habitat: an example with Rosethorn rockfish, Sebastes helvomaculatus in Reynolds, J.R., and H.G. Greene, eds. 2008. Marine habitat mapping technology for Alaska. Alaska Sea Grant College Program, University of Alaska Fairbanks, doi:10.4027/mhmta.2008.09.
Trehu, A., Lin, G., Maxwell, E., and Goldfinger, C., 1995, A seismic reflection profile across the Cascadia subduction zone offshore central Oregon:New constraints on methane distribution and crustal structure, Journal of Geophysical Research v. 100, p. 15,101-15,116.
Oregon, USA, Earth Surface Processes and Landforms, v. 31, p. 1257-1279.
Witter, R. C., Zhang, Y., Wang, K., Goldfinger, C., Priest, G. R., and Allan, J. C., 2012, Coseismic slip on the southern Cascadia megathrust implied by tsunami deposits in an Oregon lake and earthquake-triggered marine turbidites: J. Geophys. Res., v. 117, no. B10, p. B10303.
Yeats, R.S., Kulm, L.D., Goldfinger, C., and McNeill, L.C., 1998, Stonewall anticline: An active fold on the Oregon continental shelf: Bulletin of the Geological Society of America, v. 110, p. 572-587.


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The current substantial diversification in M&A deals, in particular in the market of Central and Eastern Europe, is noticeable. The value and activity of transactions has increased significantly in Poland. In 2018, the Polish market recorded a 12% growth in the number of acquisitions (323) announced. However, in comparison to previous years (2016-2017), when big transactions had increased the value of the Polish market to about EUR 10 billion, last year saw a nearly 40% drop M&A deal value. Nonetheless, the availability of attractive assets, current valuations, and measurable economic growth encourage interest in Polish M&A. Moreover, the outlook for the Polish M&A and JV market in the near future is optimistic. There are significant developments in Polish legislation already affecting, or which will affect, the M&A market. Below is a brief description of some of the changes introduced to Polish law worth mentioning.
The Supreme Court correctly settled the problem of the effectiveness of an arbitration covenant in a situation in which it was concluded in relation to one of the facultative substantive joint participants and was not established towards another such joint participant. The regulation in the provisions of the Code of Civil Procedure as well as the Civil Code does not provide a simple answer to the question of how an arbitration covenant impacts the procedural situation of entities bound by a legal relationship covered by the arbitration covenant. The commented resolution suggests an obvious question regarding the limits of the effectiveness of the arbitration covenant on the grounds of civil litigation.
In view of the dynamic economic development of our country, Polish companies have grown and reached an impressive size, forming multi-level groups of entities cooperating to achieve the effect of synergy, concentration, and optimisation of the conducted business. They can exist and compete on global markets only by functioning in the frames of holdings, and for this reason the very phenomenon should be assessed as positive. Although an amendment of the Commercial Companies Code in the scope of the holding law was very close, it has not yet seen a comprehensive regulation of the Polish law on groups of companies.
Under Article 1214 of the Code of Civil Procedure, Polish state courts can refuse the enforcement of arbitral awards made in Poland only due to a lack of arbitrability, a violation of public policy or consumer rights (for further details please see “Important changes regarding consumer arbitration introduced”). The grounds for refusal are limited and consistent with international standards. his is understandable, as a motion to set aside an award is regarded as the primary recourse against a defective award in Poland. It allows for broader (but still limited) control of an arbitral award, similar to the control prescribed in the United Nations Commission on International Trade Law Model Law.
It is a well-established rule that the setting aside of an arbitral award or the refusal of its recognition or enforcement due to a violation of public policy can occur only as a last resort to remedy a grave error in the award. It is also well established that the state courts in post-arbitral proceedings do not reconsider the facts established by an arbitral tribunal. Although these rules are clear on paper, they are less clear when applied in individual cases. A recent Supreme Court decision illustrates the conflict between public policy in theory and in practice.
In one of its latest arbitration rulings, the Supreme Court held that the autonomous position of arbitration courts as an alternative to state courts means that the judicial review of an arbitral award by an arbitral tribunal cannot be considered the equivalent of appellate review by a court. The control over arbitration exercised by common courts is primarily aimed at eliminating abuses of arbitration, which constitute violations not only from the point of view of the parties, but also against the public order in general; however, the Supreme Court ruled that provisions regarding the statutes of limitations of claims are excluded from this category.
The assignment of rights and obligations stemming from an agreement forms part of everyday business. This issue can become complicated if a transferred claim is covered by an arbitration agreement. A recent Supreme Court decision shows that in such a case, the assignee and the debtor must resolve their disputes through arbitration. The defendants in the present case and another Polish company entered into a consortium agreement for major construction work in Poland. The Polish consortium member assigned its claims against the Irish consortium leader to a Polish bank to secure the credit agreement. The bank decided to pursue these claims against the Irish parties before a Polish state court.
In Poland, the mechanism of pursuing claims in group proceedings, which can be perceived as the ‘Polish version’ of the US class action, has been present since 2010. It was introduced into the Polish legal system by virtue of the Act of 17 December 2009 on Pursuing Claims in Group Proceedings, Journal of Laws 2010.7.44 of 18 January 2010 (the Act). This Act is separate from the regulation provided for by the Polish Code of Civil Procedure (CCP). After several years, the Act was amended in 2017 by virtue of the Act of 7 April 2017 Amending Certain Acts to Facilitate the Seeking of Receivables (hereinafter ‘Amendment 1’); the amendments have been in force since 1 June 2017.
What’s New in European Arbitration?
In a judgment of the Regional Court of Dortmund dated September 13, 2017 (Docket No 8 O 30/16 (Kart)) but only recently published, the court held that if a cartel damages claim is brought on the basis of a contract subject to an arbitration agreement, that claim is subject to arbitration. This holding came somewhat as a suprise as it is contrary to the prevailing view in legal literature.
The headlong push by European and American companies to collect and mine consumer data can be compared to the 19th century Alaskan gold rush. Exercising a different historical metaphor, Doug Fisher, an Intel executive, predicted that data would be to the 21st century what oil was to the 20th century, an engine for corporate growth, with one significant difference: “oil is definite while data is renewable.” Databases are key corporate assets, particularly in technology companies, and an up-to-date, growing database can lead directly to an increase in sales. When the data being collected and processed is about individuals who may not be aware that personal information has been collected and is being used, serious privacy concerns accompany this growth.
The control of the decision of the arbitration court is not equivalent to the control within the appeal proceedings typical for the state judiciary. The specificity of the state judiciary control over arbitration courts’ awards results in the fact that a potential breach of substantive law cannot cause an arbitrary sentence’s revocation per se, unless that infringement would lead to a violation of the basic principles of the legal order of the Republic of Poland, whereas the faulty interpretation of limitation regulations does not cause a contradiction of the arbitration court’s decision herewith.
This article discusses the recent rulings of Polish courts in a case where a party to an agreement in which all disputes were to be resolved by arbitration filed a petition to a State Court. They requested the issuance of a European Account Preservation Order under Regulation (EU) No 655/2014 of the European Parliament and of the Council of 15 May 2014, which established a European Account Preservation Order to facilitate cross-border debt recovery in civil and commercial matters. The Court of First Instance (Regional Court) dismissed the petition arguing that under the provisions of the European Account Preservation Order Regulations a Preservation Order may not be granted in cases referred to arbitration. The Appellate Court reversed this decision and remanded the case back to the lower court thus allowing the possible application of a Preservation Order. The purpose of the paper is to present the argumentation provided by the Courts of both instances and to comment on the advisability of these decisions.
Cross-border debt recovery undoubtedly has a great chance of becoming more efficient following the adoption of EU Regulation 655/2014, which establishes a European account preservation order (EAPO) procedure to facilitate cross-border debt recovery in civil and commercial matters. According to Article 1 of the regulation, an EAPO aims to prevent the subsequent enforcement of a creditor’s claim from being jeopardised through the transfer or withdrawal of funds up to the amount specified in the order which are held by the debtor or on its behalf in a bank account held in an EU member state. Clearly, obtaining a favourable award is an important step, but it is the efficient enforcement that matters most for the client in the end.
The legal system in Poland is a continental law system (statutory law), whereas the source of legal standards derives from legal acts enacted by legislative bodies. One of such acts is the Code of Civil Procedure (Polish abbreviation: ‘KPC’; English abbreviation ‘CCP’) which contains provisions regulating the civil procedure. The civil court system in Poland consists of three tiers: the first level comprises District Courts, which, in principle, are courts of first instance; the second level comprises Regional Courts, which are courts of second instance in cases heard at first instance by the District Courts and courts of first instance in cases enumerated in the provisions of the law; and the third level consists of Courts of Appeal, which are courts of second instance in cases heard at first instance by Regional Courts.
According to Article 375 of the Code of Commercial Companies, the general meeting and supervisory board of a joint stock company cannot give binding instructions to the management board concerning the management of the company’s affairs. This provision makes it absolutely clear that management board members of joint stock companies are not obliged to follow instructions from a supervisory board or general meeting on how to manage the company’s affairs.
Cases in which an arbitrator must be appointed on behalf of a party have long been problematic. The French Supreme Court in Siemens v Dutco underlined that each party should have the same rights in the appointment process. A recent Polish Court of Appeals decision invoked similar reasoning in setting aside an International Chamber of Commerce (ICC) award due to the fact that, among other things, one party’s rights had allegedly been infringed when the sole arbitrator was selected in the course of the proceedings.
In 2017 there were two major changes in the Polish arbitration landscape. Firstly, a new set of rules for consumer arbitration was introduced. These changes involve the form of an arbitration agreement as well as grounds for challenging an arbitral award and questioning the recognition or enforcement of an arbitral award. The amendments are aimed at reinforcing consumers’ rights in arbitration.
Parties that negotiate a contract for sale when they are based in different countries are not always aware of the legal nature of their negotiations and the possible legal consequences. However, the conclusion of a contract in the course of negotiations can be regulated differently depending on the jurisdiction and legal system.
The subject matter of this article is the comparative outlook for the civil procedure in common law tradition and continental law family – throughout the three various viewpoints – citizen’s, court’s and finally – the prospective aspects for civil proceeding. Therefore, my aim is to construct a storied composition that embarks on individual’s level, goes over the structural grade and reaches the towering rung – the global perspective.
Shareholder activism has grown in popularity in recent decades (particularly in the United States) due to leading law firms specialising in the implementation of available shareholder activism strategies, and the role of hedge funds and related services constitutes a significant niche in the legal services market. This update will examine whether shareholder activism can be applied under Polish legislation.
A recent Supreme Court case found that an arbitral tribunal did not violate public policy by reducing an agent’s claim for commission against a football club by approximately 60%, even though the commission was for the transfer of Robert Lewandowski, one of the world’s best footballers. The decision underlines that football agents, in the view of the court, should not claim more than 30% of what is due for players themselves if they want to avoid their claims being dismissed as excessive and an abuse of rights.
Is there such a thing as a perfect arbitration clause? Commercial lawyers have been struggling with this question for decades. In reality, a perfect arbitration clause does not exist because every contract involves different needs and circumstances, many of which do not surface until long after the clause has been drafted. Indeed, the difficulty of identifying one “ideal” arbitration clause demonstrates one of the key advantages of arbitration: It is a form of dispute resolution that adapts to different kinds of disputes and surrounding circumstances.
By assumption, the process of merging capital companies is advantageous from the point of view of the merging companies and their shareholders. However, sometimes, as a result of the merger, a shareholder may receive fewer shares in the acquiring company than he or she should have. Therefore, the merger is disadvantageous from an economic and corporate power point of view. In such a context, the question that arises is whether the protection of shareholders’ interests against an unfavourable share exchange rate is possible under Polish law and, if so, how it can be accomplished.
Generally speaking, in Poland arbitration is becoming an increasingly popular method of dispute resolution as evidenced by recent research in that field. According to a study prepared by the European Commission entitled ‘Business-to-Business Alternative Dispute Resolution in the EU’, based on 500 interviews with Polish businesspeople, 15% of them have already used arbitration, which gave Poland second place, tied with Italy, in the whole of the European Union. According to the latest research from 2015, 75% of businesses which were already engaged in arbitration expressed their willingness to use this method of dispute resolution in the future.
International contracts are often concluded via email. This practice requires a more liberal approach to the form of arbitration agreements under the New York Convention. However, the convention is silent on the form in which an agent’s authorisation (ie, power of attorney) to enter into an arbitration agreement must be made. A recent Supreme Court decision confirms that under Polish law, such authorisation is required and should be made at least in an equal manner to that required to conclude the agreement itself (ie, at least by way of an electronic document). This decision also shows that the issue of an agent’s authorisation to enter into an arbitration agreement is problematic, but not only in Poland.
To a large extent, the security and success of a transaction depends on the correct execution of the process preceding its finalisation. At the pre-contractual stage, a non-disclosure agreement (NDA) is the first agreement that regulates the mutual relationships of the parties involved in the negotiations. The conclusion of such an agreement: facilitates negotiations; reinforces the parties’ trust; and allows for the protection of information which they consider to be significant.
Polish law regulations on bankruptcy and restructuring were substantially altered due to changes which entered into force on 1st January 2016. The fundamental functions of the new regulation are: realising a ‘new chance’ policy, i.e. guaranteeing an opportunity for a new start to entrepreneurs whose enterprises failed in connection with deteriorating economic conditions; separating restructuring procedures, aimed at preventing a debtor’s enterprise from reviling (or stigmatising) bankruptcy procedures; examination of the effectiveness of the law in force heretofore has demonstrated that the very declaration of bankruptcy in the majority of cases precluded any restoration of a debtor’s enterprise due to the negative attitude of the economic environment (creditors/counterparties) towards an entrepreneur who was declared bankrupt.
The company merger procedure is regulated by the Commercial Companies Code, which provides for the adoption of shareholder resolutions during company mergers. Similar to other shareholder resolutions during general meetings, the resolution may be challenged according to the principles set out in the code. However, due to the specificity of the merger process and the necessity of recognising the primacy of a company’s interest over that of a shareholder, certain exceptions to the general principles apply.
De lege lata no changes in the Polish law are necessary for the recognition of the arbitrability of resolution-related disputes, similarly as was the case in German law which today allows for an effective practice of corporate arbitration. The real obstacle for Polish arbitration practice in resolution-related disputes is the lack of model rules of proceeding before a court of arbitration in the case of a multi-entity dispute arising against a company relationship, which shareholders and the company alike could refer to. This obstacle would be eliminated by offering parties to arbitral proceedings such a “model law” in the scope of proceedings before the court in the case of resolution-related disputes which would guarantee that the standard of a shareholder’s constitutional access to justice is always complied with in such proceedings. This is, nota bene, what the German DIS has done.
Arbitration is a process and its product is an arbitral award that can be a substitute for a state court judgment in the most important aspect – enforceability. As a result, both arbitral tribunals and counsels should undertake necessary steps to ensure the future enforceability of the award. This requires tailoring the arbitral process with enforcement issues in mind and conducting the arbitration proceedings with a flexible and knowledgeable navigation among several different legal systems that will only come into play during enforcement as provided by the New York Convention.
An arbitral award is equal to the judgment of the state court after being recognised or enforced, therefore, it has the same binding force and the authority of res judicata as the final and enforceable judgment of the state court. Both the state courts and the parties are bound by such arbitral award, so it should be taken into account when deciding on subsequent disputes between the same parties. What is more, if an award deals with an issue of a precedential nature, that issue cannot be re-litigated in further proceedings.
Under Article 180 of the Commercial Companies Code, the effective transfer of share ownership requires a transfer ownership agreement to be concluded in writing with a signature certified by a notary. This is an absolute requirement and does not depend on the agreement’s value or the percentage of a company’s share capital that is subject to the transaction (eg, as is the case in Lithuanian law). However, not all legal regulations in force in EU member states require adherence to a special form – namely, a written form with signatures certified by a notary. The question that therefore arises is whether – in the event that the agreement is concluded under the legislation of a state that sets less restrictive requirements regarding the agreement form for the purchase of shares in a limited liability company with a registered office in Poland – adhering to a less restrictive form will suffice for the effective transfer of the legal title in the shares being disposed of.
Mass contracts are usually drafted favourably only for the stronger party in the contractual relationship. This particularly pertains to dispute resolution (eg, its method or place). In its October 27 2016 judgment, the Supreme Court ruled strongly in favour of the weaker parties in a contract and found that an arbitration clause in the contract between a Polish franchisee and a Dutch franchisor that opted for New York (where the seat of the Dutch company’s parent company was located) as the place of arbitration was invalid, as it was grossly unfair to the Polish party.
The legal system in Poland is a continental law system (statutory law) whereas the source of legal standards is legal acts enacted by legislative bodies. One of such acts is the Code of Civil Procedure (Polish abbreviation: ‘k.p.c.’; English abbreviation ‘CCP’) which contains provisions regulating the civil procedure. The civil courts system in Poland consist of three tiers: the first level comprises District Courts, which, in principle, are courts of first instance; the second level comprises Regional Courts, which are courts of second instance in cases heard in first instance by the District Courts, and courts of first instance in cases enumerated in the provisions of the law; the third level consists of Courts of Appeal, which are courts of second instance in cases heard in first instance by Regional Courts. Judgments of courts of second instance may sometimes be challenged with cassation complaints before the Supreme Court. Some categories of cases are, however, reserved for the competence of specific courts, e.g. the Regional Court in Warsaw is the court competent for competition and consumer protection.
“Better safe than sorry!” Despite the fact that this proverb is well known, lawyers often fail to apply this rule with respect to data protection. They seem to forget that information is the most valuable asset and that their law firms are susceptible to cyberattacks. Therefore, lawyers should be adequately prepared to secure data and address information leakage incidents. The first step of this preparation is crisis anticipation, which helps avoid the crisis in the first place and also gives necessary confidence to react effectively.
Significant changes to the regulation of arbitration in Poland were introduced on January 10 2017 through the Act on Out of Court Resolution of Consumer Disputes, in line with the EU Alternative Dispute Resolution Directive (2013/11/EU). The changes will have a profound effect on business practice and lawyers nationwide, modifying a wide range of rules – from the form of an arbitration agreement to the preconditions for the enforcement of awards. However, the act aims not only to support consumers in arbitration, but also to provide a new impetus for the development and expansion of arbitration in Poland.
Assuming that the principal goal of people involved in creating the law regulating the functioning of the judiciary is to facilitate citizens’ access to justice and expedite the proceedings, one should expect that any systemic reforms will lead to streamlining the system of the administration of justice. A neutral observer, however, has had many an opportunity to see that each amendment aimed at introducing progressive innovations into the court room results in a frontal confrontation between advocates and opponents of innovative solutions. Are these fears substantiated? Or perhaps all the reservations are rather rooted in individual barriers stemming from the fear of abandoning one’s habits?
Arbitration is becoming an increasingly popular method of dispute resolution in Poland as shown by recent research in that field. According to a study prepared by the European Commission entitled ‘Business-to-Business Alternative Dispute Resolution in The EU’, based on 500 interviews with Polish businesspeople, 15 per cent of them have already used arbitration, which ranked Poland second place in the whole of the European Union. According to the latest research from 2015, 75 per cent of businesses that were already engaged in arbitration expressed their willingness to use this method of dispute resolution in the future.
The Act of 17 December 2009 on Pursuing Claims in Group Proceedings (Journal of Laws 2010, No. 7, item 44, hereinafter referred to as: the “Act”), in force as of 19 July 2010, introduced a new mechanism for the collective pursuit of claims/group proceedings in the Polish legal system. In principle, the Act is of a purely procedural nature – it introduces no changes to the substantive legal basis for claims or to the principles of a defendant’s liability.
Parties may agree for a multi-tier dispute resolution process to be administered by a Contract Administrator. However, when the contract is fully performed, in result of which the Contract Administrator is relieved of his duties, there is no competent (contractually selected by the parties) person through which parties may start the dispute resolution process. This also concerns the initiation of arbitration as the final stage of the multi-tier dispute resolution procedure.
This paper concerns two frequent situations in international commercial arbitration, i.e. concluding a conditional arbitration agreement and implementing an arbitration agreement in the conditional mail contract. The first part concerns the possibility of making the arbitration agreement conditional (from the procedural and substantive point of view) and also includes practical examples of such conditional arbitration clauses. The second part concerns the effect that a conditional main agreement has on the arbitration clause contained therein. The third part discusses the effects of conditional arbitration agreements, also from the procedural and substantive perspective.
Anti-suit and anti-arbitration injunctions are useful instruments for enabling efficient dispute resolution and preventing forum shopping. However, these instruments – not free from criticism – are not favoured in some legal systems. Poland is one of the jurisdictions that was said to exclude the use of anti-suit and anti-arbitration injunctions. On November 22 2016 the Krakow Court of Appeals (I ACz 1997/16) confirmed that Polish courts cannot prohibit a party from initiating or continuing arbitration.
FIDIC Contract Conditions (hereinafter: FIDIC CC) have gained an established position in the Polish practice of the completion of large infrastructural and construction investments. Next to the effective project management model and the presence of the Contract Engineer in the course of investment realisation, the said conditions include a specific multistage manner of resolution of disputes which have arisen in the frames of progressing construction works. In the practice of the application of the law, a grave issue of legal consequences of a failure to comply with pre-arbitration stages of a FIDIC multistage arbitration clause has come to surface. The problem is all the more significant in that its solution often impacts the success of the entire investment. The author is of the opinion that the consequence of the failure to comply with the pre-arbitration stages of a FIDIC multistage arbitration clause is the invalidity of the arbitration clause included in the contract, and thus a lack of possibility to effectively invoke the charge of the arbitration clause by a party to the dispute. The main argument advocating such a stance is the nature of the FIDIC multistage arbitration clause.
Parties sometimes believe that the recognition and enforcement of an arbitral award is a mere formality, as the substantive proceedings are already over. However, the enforcement stage can prove to be very formal and parties should be careful not to overlook certain requirements of a motion. A May 25 2016 Supreme Court decision (V CSK 257/15) demonstrates the serious consequences that can stem from parties’ errors in this regard. It also shows that Polish courts sometimes require a party to present more than just original or certified copies of the arbitration agreement and the award, as prescribed in Article IV of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958.
Legal uncertainty is highly undesirable in business. However, uncertainty is likely in dispute resolution, at least to some extent and especially regarding the outcome. Other factors, such as the forum, costs and conduct of proceedings can and should be determined at the start of a dispute. This also pertains to the issue of whether a case should be heard in arbitration or before a state court.
A recent Supreme Court judgment contributed to the debate on the res judicata (binding power) of arbitral awards on other cases. In its January 20 2016 judgment, the Supreme Court clarified to what extent findings made in a previous arbitral award (and not only an operative part of the award deciding on claims) should be taken into account when deciding on subsequent disputes between the same parties. This judgment may constitute an important guide for arbitration practitioners who want to make use of arbitral awards that have already been issued to support their position in future litigation or arbitration in Poland.
Under Article 45 of the Constitution of the Republic of Poland everyone shall have the right to have their case heard without undue delay by a competent, impartial, and independent court. The positively defined right of access to justice is supplemented in Article 77 of the Constitution of the Republic of Poland which establishes a ban on a narrowing interpretation of provisions guaranteeing individuals access to justice – a statute may not block anyone’s access to seek justice for infringement rights or freedoms. Interestingly, both these key provisions of the Constitution of the Republic of Poland enacting ‘access to justice’ do not directly articulate which court is meant – a state court, but perhaps also a private court, which a court of arbitration is.
The security of economic transactions and their participants requires the elimination of entities failing to adhere to fundamental rules and principles and, as such, constituting a threat to the correct functioning of the market. One of the means for accomplishing this goal comes as the possibility, provided by Article 373 et seq. of the Insolvency Law, depriving, by virtue of the ruling of an insolvency court, a specific entity, of the right to conduct their own economic activity or engage in such activity in the frames of a civil partnership and ban them from discharging functions of a member of a supervisory board, member of audit committee, representative or agent of a natural person conducting an economic activity in the scope pertaining to this activity, but also as an agent of a commercial company, a state-owned enterprise, a cooperative, foundation, or association (hereinafter referred jointly as to: “depriving of the right to engage in economic activity”) for ten years.
For many years after the introduction of the Civil Code, the set of issues pertaining to mortis causa acts in law has remained on the margin of interest of civil law practitioners. One of the few who engaged in an analysis of this subject was Professor Andrzej Kubas, who was the first author in Polish legal literature to have embarked on an attempt at presenting a broader characteristics of these acts. In recent years, this situation has undergone a significant change, whereas mortis causa have provided a matter for an interesting debate.
The problem of relations between the scope of application of Article 58 § 1 and 2 and Article 527 CC is the subject of multiple and frequently divergent opinions of the case law, issued on the grounds of different factual statuses. This Article constitutes an attempt at determining when an act in law performed to creditors’ detriment is only ‘ineffective’ and when (under which circumstances) it may be found invalid.
The role of general clauses in civil law is of utmost significance. They the legal system to be adjusted to the changing realities – no legislator has ever been able to realise the postulate of completeness of the legal system that would be resistant to the changing socio-economic conditions and, at the same time, in each case adjudicated upon allowing the universal values comprised within the notion of substantive justice to be taken into account.
In the frames of the class action mechanism, newly introduced into the Polish procedural law system, the Act of 17 December 2010 on Pursuing Claims in Group Proceedings, in force since 19 July 2010, provides for the shaping of a demand of the statement of claims (verba legis: ‘limitation’ of the demand) as a demand for the establishment of liability of the defendant (defendants).
The Jubilarian is a Professor Emeritus at the Chair of Civil Law of the Jagiellonian University and an attorney-at-law of established reputation as a consummate and effective litigation expert. In turn, the author of these words focuses on company law in his work. Since the publication is designed as a jubilee contribution, in attempting to define an area that, on the one hand, would emphasise the Jubilarian’s interests while on the other indicate the professional capacity of this paper’s author, the article should naturally focus on several issues revolving around corporate disputes and the way they are settled by state and arbitration courts.
The subject of this article is procedural issues related to establishing national jurisdiction in a situation where an action is brought forth by a company shareholder who suffered so-called indirect damages. Assuming the active capacity of such a shareholder (discussed in greater detail below), in the case containing a cross-border element, a problem having both theoretical and practical significance may arise, i.e.: according to what principles and which understanding of prerequisites the national jurisdiction should be established.
From among a host of problems within the set of issues concerning the operation of capital companies, recently the issue of defectiveness of resolutions of collegiate corporate bodies have begun to feature prominently in the doctrinal debate and in judicature rulings. This discussion focuses first and foremost on attempts at establishing the nature of a civil law sanction affecting the resolutions of shareholders or general meetings which remain in contradiction with the act.
Under the disposition of Article 23 CC, the personal interests of a human being, including dignity and good name shall be protected by civil law independent of protection envisaged in other provisions. Claims on the grounds of infringement of personal interests set forth in Article 24 CC materialise only when a charge of infringement of personal rights is raised by a person guaranteed protection under the above-indicated provision. Complications, however, arise in a situation where the incriminated statement does not pertain to a specific single person, but an entire group, collectively defined by the person who committed the infringement.
I dedicate this study to Professor Andrzej Kubas, my Mentor during my attorney apprenticeship in Krakow, in recognition of his scholarly work and legal practice. My cooperation with Professor Kubas constituted a continuous opportunity to study law, but also much more. Professor Kubas’ charisma, but first and foremost his personality, make him, in my belief, a paragon of both an attorney and arbitrator. Since the Professor’s practice also extends to arbitral proceedings, selecting a subject related to broadly understood arbitration was a natural choice.
The Warsaw Court of Appeals judgment of October 9 2015 is a recent and important contribution to the development of arbitral law in Poland. The court made a clear distinction between the jurisdictions of state courts and arbitral tribunals regarding the enforcement of claims. It also discussed the defence of set-off raised after an award has been made. Finally, and perhaps most importantly for foreign parties arbitrating in Poland, the court clarified when a claim covered by a valid and enforceable arbitration agreement can be examined only by a state court.
The limitation of claims under Polish law is a matter of substantive law, not procedure. However, procedural acts (ie, the start of litigation or arbitration) are important in this regard, as they can interrupt the limitation period. The effective interruption of the limitation period of a claim can be crucial to the final success of litigation or arbitration. However, parties are often unsure whether a case is more suited to arbitration or whether it should be heard by a state court. If they make the wrong choice, there is a chance that the limitation period will run uninterrupted and the claim may become time barred. his issue is problematic in Poland and remains unresolved. It is unclear whether a party can interrupt a limitation period by bringing a case before an improper forum or by initiating onciliatory proceedings before a state.
The year 2015 brought about two very important amendments to Polish arbitration law: amendments introduced by the Act of 15 May 2015, the Restructuring Law (the Restructuring Law), in general in force as of 1 January 2016; and amendments introduced by the Act of 24 July 2015 on Amendments of Certain Acts Due to Support of Alternative Dispute Resolution (the ADR Law), the legislative process of which is still pending. The aim of these amendments was to adapt Polish rules on arbitration (and ADR in general) to the needs of modern business and create a friendly environment for arbitration.
High thresholds for proceedings set in arbitration agreements, such as short time limits, can have serious consequences, including the loss of an agreement’s legal effect. Further, parties must choose their arguments carefully, as they may be used against them at a later point. The role of arbitrators in overcoming procedural problems with the parties is also crucial to render an enforceable award. These issues arose in a recent judgment issued in post-arbitral proceedings. The Warsaw Court of Appeal’s June 18 2015 judgment dealt with the interpretation of arbitration agreements.
Generally speaking, in Poland arbitration is becoming an increasingly popular method of dispute resolution as evidenced by recent research in that field. According to a study prepared by the European Commission entitled ‘Business-to-Business Alternative Dispute Resolution in the EU’, based on 500 interviews with Polish businesspeople, 15% of them have already used arbitration, which gave Poland second place, tied with Italy, in the whole of the European Union.
Arbitration is often described as a quick means of dispute resolution in comparison to state court proceedings. Whether this argument is still valid regarding the length of arbitral proceedings themselves is debatable. However, arbitration does not operate in a vacuum and state court proceedings are also needed to preserve or enforce the rights of the parties. If a winning party wants to enforce a favourable award, it seeks the state court’s assistance in recognition or enforcement proceedings. If a party is not content with the outcome of the arbitral proceedings, it can motion the state court to set aside the award. Consequently, post-arbitral proceedings are a necessary complement of the arbitral proceedings. Thus, the length of the former should be added to that of the latter to determine the overall length of enforcing claims in arbitration. When arbitral and post-arbitral proceedings are examined together, it is clear that the efficiency of post-arbitral proceedings is crucial in maintaining a quick resolution of disputes. This remains a challenge in many jurisdictions, including Poland.
When compared to other European countries, effectiveness of court proceedings in Poland should be assessed positively and further improvements in this field can be expected in the coming years. All recent amendments to the civil procedure have been oriented towards guaranteeing an improved and more effective course of the proceedings. Changes to the provisions which introduced the principle of concentration of procedural material, supplemented with the principle of judge’s discretional authority, have “equipped” courts with instruments ensuring efficient and fast conduct of proceedings – not only must the judge act as an arbitrator in the dispute between the parties, but also he must be a manager of the proceedings who should counteract any attempts to prolong the proceedings and aim for the quickest possible settlement of the dispute, obviously without detriment to resolution of the case.
Polish law prescribes both the formal and material requirements for arbitration agreements. As to the form, an arbitration agreement, under Article 1162.1 of the Polish Code of Civil Procedure of 17 November 1964 (hereinafter: “CCP”), has to be made in writing. This requirement is also fulfilled when this agreement is included in letters or recordable communications exchanged between the parties or if the parties refer in their agreement to a document containing a decision to resolve their dispute in arbitration, and if such an agreement is made in writing and the reference incorporates that clause into the agreement (Article 1162.2 CCP).
On June 9 2015 the president signed the new Law on Restructuring. This new statute (which will fully come into force on January 1 2016) will reshape the Polish bankruptcy, insolvency and restructuring rules to make it easier for companies to get back on their feet after a period of financial difficulty. From the perspective of arbitration, the new law derogates from the controversial provisions – well known to the arbitration world from the Elektrim case – under which a declaration of bankruptcy rendered arbitration agreements concluded by an insolvent company ineffective. In principle, in future a declaration of bankruptcy will not impede ongoing arbitration. The new provisions deserve a closer look by any foreign party that has entered into an arbitration agreement with a Polish company.
The «Arbitrability II » Decision of the German Supreme Court (BGH ) – the German Benchmark for Arbitrating Corporate Disputes in Poland?
A comparison of the German and Polish regulation of company law and procedural law, including arbitration law, has an obvious theoretical foundation. In relation to company law, the Polish regulations most often copy the solutions adopted by the German legislator. Procedural law in both systems is based on the same principles of proceeding and shares a similar understanding of procedural institutions.
On February 5 2015 the Supreme Court issued a judgment (V CSK 231/14) related to a provision of the law regarding the expiration of an arbitration clause (ie, Article 1168 of the Code of Civil Procedure). Pursuant to this provision, if a person identified in an arbitration clause as an arbitrator or presiding arbitrator refuses to perform that function – or if it is otherwise impossible for him or her to perform that function – the arbitration clause will lose its effect, unless the parties decide otherwise. According to the same provision, unless the parties have agreed otherwise, the arbitration clause will lose its effect if the arbitration court defined therein refuses to hear the case or if it is otherwise impossible for the court to hear the case.
The commented judgement of the Supreme Court (SC) raises three issues instrumental to the process of appealing merger resolutions in limited companies: 1) what exactly is the meaning of the prohibition on basing legal actions seeking to declare invalidity or repeal a merger resolution upon claims concerning the exchange parity (Article 509 § 3 of the Commercial Companies Code)?; 2) whether a Commercial Companies Code provisions’ breach in the course of a merger procedure, preceding the passing of a merger resolution, may constitute the basis for questioning the legality of the merger resolution?; and 3) whether the time limitation set forth in Article 497 § 2 of the Commercial Companies Code, prohibiting a merger’s repeal after six months of the date of the merger’s registration, should be applied only to the competences of a registry court acting ex officio, or whether it should be construed as also comprising a prohibition to declare invalidity or repeal a merger resolution after that time limit?
On February 13 2014 the Supreme Court (V CSK 45/13) confirmed that the principle of the compensatory function of penalty clauses is a basic rule of public order. The key issue from a commercial arbitration viewpoint relates to the requirements for enforcing a foreign award in Poland and the limits of the public order clause. The judgment has prompted debate on the criteria that should be followed when assessing whether an award complies with the fundamental principles of the Polish legal system. It also provides a basis for examining other legal standards that are covered by the public order clause.
The Polish Supreme Court’s (SC) finding that the shareholder’s intervention in a dispute for the annulment or cancellation of a company’s resolution is of a non-autonomous nature if lodged on the side of the defendant company, whereas it is autonomous when a shareholder lodges it on the side of the member challenging the resolution, constitutes a dangerous precedent. The gloss presents a critical analysis of arguments which motivated the SC into adopting this thesis.
An arbitration agreement encompasses not only the disputes explicitly mentioned in its substantive scope but also cases relating to these disputes. Consequently, the prohibition of hearing the case by the state court is applicable also if the determination of the case presented before the state court and not explicitly covered by an arbitration agreement is impossible without examining a dispute being the subject of such an agreement.
Although international arbitration has achieved a substantial level of independence from state courts, the role of such courts is still important for effectiveness of arbitral proceedings. Interactions between state courts and arbitral tribunals may be particularly intensive in those areas in which tribunals and state courts have parallel or concurrent competence in the course of arbitration. State courts play an important part in the examination of the jurisdiction of the arbitral tribunal in a given case.
The arbitrability and arbitration clause in corporate disputes. Commentary to the arbitral award.
One of the Polish arbitral tribunals expressed the view that the arbitrability of disputes involving claims for declaring a resolution of a company invalid is conditional on circumstances which invariably require to be assessed in concreto. This opinion is clearly incorrect and the commentary explains why the arbitrability of corporate disputes should not raise any concerns whatsoever.
In his most important work entitled “An Inquiry into the Nature and Causes of the Wealth of Nations” Adam Smith, the father of economics, differentiated three production factors: soil, labour and capital. The effective combination of these three factors was to decide on the economic success of a given nation. The mentioned “effective combination” – is nothing more than, in the words of Adam Smith – the “laws and institutions” of a given nation, which decide the level in which the production factors will be exploited.
Arbitration is characterized by a series of advantages, which make it a good alternative for state court proceedings. One of the advantages is more freedom for arbiters in creating rules for evidence proceedings, including the acceptability of certain pieces of evidence. The aim of the paper is to answer the question about the possibility to proceed evidence from private recordings in Polish arbitration court proceedings, in compliance with the international practice in this matter.
Arbitration is a creature that owes its existence to the will of the parties alone. This phrase is often used as the leitmotif of arbitration. It draws attention to two of its prominent features, namely its contractual nature and the decisive role of the parties in shaping its procedural scheme.
On June 26, 2007, two Polish companies, P and I entered into a framework agreement aimed at creating an environment for concluding options contracts on the financial market. On July 11, 2008 the parties entered into an additional agreement securing I’s claims against P.
The rules of independence and impartiality of arbitrators are guaranteed by various mechanisms. These include the duty imposed upon an arbitrator to disclose any circumstances likely to give rise to doubts as to their impartiality or independence or the parties’ right to challenge an arbitrator.
When compared to other European countries, the effectiveness of court proceedings in Poland should be assessed positively and further improvements in this field can be expected in the coming years. Recent amendments to the civil procedure (particularly the amendment which entered into force on 2 May 2012) have been oriented towards guaranteeing an improved and more effective course of the proceedings.
The Polish law prescribes both the formal and material requirements for the arbitration agreement. As to the form, an arbitration agreement, under Article 1162.1 of the Polish Code of Civil Procedure of 17 November 1964 (hereinafter: “CCP”), has to be made in writing. This requirement is also fulfilled when this agreement is included in letters or recordable communications exchanged between the parties, provided they refer in their agreement to a document containing a decision to resolve their dispute in arbitration, and if such an agreement is made in writing and the reference incorporates that clause into the agreement (Article 1162.2 CCP).
Damage predictability, which is referred to in par. 74 sentence 2 of the United Nations Convention on Contracts for the International Sale of Goods (Journal of Laws 1997 No. 45 pos. 286), does not exclude liability of the party violating the contract, but restricts the amount of the due damage. Verdict of the Supreme Court of 8 February 2012, V CSK 91/11, OSNC No. 7-8/2012, item 100.
The examination by the Polish Supreme Court of a case which arose on the grounds of the United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11 April 1980 is a true rarity. In any event very few of these rulings spark the interest of the doctrine. Greater attention should be paid to the case in which the Supreme Court made three separate statements. The glossed verdict of the Supreme Court of 8 February 2012 regards the issue of contractual liability on the grounds of the CISG for the non-performance of the sales contract for goods, and specifically the issue of the foreseeability of the caused damage. What sparks concern is the fact that the Supreme Court identified the rules of liability on the grounds of Article 471 et seq. of the Civil Code and Article 45 and 61 om conjunction with Article 74 of the Convetion.
Arbitrability of disputes on validity of resolutions of capital companies constitutes one of the most disputed issues of the arbitration law doctrine. The dominating view holds that in the present legal status such disputes are not arbitrable and de lege ferenda proposals aimed at changing this status quo are put forth.
The article addresses the main legal issues engendered by the regulation of management in a professional partnership. Seeing the need for streamlining and professionalising the process of professional partnership management, the legislator provides for a possibility of departing more fully from the principle of a professional partnership being managed by partners by entrusting the conducting of the partnership’s affairs and representation to a management board (Article 97§1 Commercial Companies Code).
The article is an attempt at discussing and solving main legal issues concerning the impact of a multistage arbitration clause on the performance of a settlement of a construction investment realised on the basis of the FIDIC Contract Conditions (hereinafter: FIDIC CC). There is no doubt that due to the popularity of the indicated models, it is necessary to comprehensively address the issues and controversies which its application in the economic transactions breeds in the practical application of the law. The fundamental question determining difficulties in the application of solutions offered by creators of the FIDIC CC is the issue that in their substance they originate from the common law system.
In the international arbitration practice, we may see a trend of improving arbitration proceedings and lowering their cost. One of the ways to optimize the proceedings is to divide it into parts, each of which is finalized with a separate verdict. Such an operation is called in the arbitration bibliography bifurcation.
Recognition by the Supreme Court (hereinafter the SC) that the assignee of liabilities is bound by the arbitration covenant from a basic relationship from which the liability arises, was decisive for establishing- uniform both in the case law, as well as in the doctrine that each legal successor of a specific title of a party from the basic agreement is bound by the arbitration covenant included in this agreement.
When it comes to M&A in Central & Eastern Europe (CEE), last year was definitely less interesting than 2011, which was considered to be a record-breaking year for M&A deals. In 2012, the total deal value of transactions in Poland was €9bn from 331 transactions completed – compared to 2011 where the total value was €18bn from 516 transactions completed. However, Poland remained among the region’s leading countries for M&A.
The aim of the present article is to outline the opinions appearing in the Polish doctrine on the topic of the introduction of the compulsory liquidation of insolvent companies, towards which bankruptcy proceedings have not been instigated due to the lack of a sufficient estate to cover the costs as well as the formulation of a stance which, in the opinion of the authors, would allow for the settlement of this issue on the basis of solutions proposed in the Recommendations of the Team of the Minister of Justice on the amendment of the Bankruptcy and Rehabilitation law.
The scope of binding mandatory provisions of procedural and substantive law seems to be one of the most important problems of arbitration, especially international arbitration. It is connected to various other concerns, e.g. the law applicable to various elements of arbitration, mainly the arbitration agreement, but also arbitrability.
With the arbitration award of the Arbitration Court at the Waren-Verein der Hamburger Bőrse e. V. Association in Hamburg (Germany)of 3 November 2010 (hereinafter respectively as: “Arbitration Court” and “Arbitration Award”) G-N. Ltd, with its registered seat in Old Tbilisi (Georgia) was awarded from “R.-H.” S.A. with its registered seat in W. (Poland) the amount of USD 101,600 with interest and fees on account of the remaining sale price of hazelnuts.
The history of economic policy confirms that the idea that detailed top-down “decreeing” of the spheres of business activity, through norms ordering the taking of certain actions or forbidding the taking of others (often in separation from the rules of economics) have brought about inconveniences, and only sporadically solved the problems lying at their bases.
According to many insured car holders in Poland, insurers have been underestimating compensation for losses, and the majority of auto insurance cases in Poland have been settled for amounts far below the actual costs of restitution. The most frequent reason is that the value of a loss has been determined based on the prices of used spare parts rather than new ones. A recent resolution by the Supreme Court of Poland may put an end to these activities committed by insurers and may be another indication that the courts are favoring insurance holders in recent car insurance cases.
Dispute resolution in the case of construction contracts may prove to be a challenging and complex process. When an investor enters into a construction contract with a general contractor, there are, as a rule, several other parties involved in the process, such as: the architectural design studio and the sub-contractors. These parties are, as a rule, bound by several contracts. The existence of multiple parties and multiple contracts is a key characteristic of the construction proces.
Directors and officers (D&O) insurance has grown steadily in popularity since it was introduced in Poland 15 years ago. Accompanied by a rise in risk-aware corporate leadership, D &O insurance has evolved from an unknown product in the mid-1990s to a near necessity during periods of economic instability. Liability for damages caused by the decisions of professionals has become apparent. Although the market for D&O insurance is still developing, insurance premiums for 2010 were between PLN30 million and PLN50 million (approximately USD10.2 million and USD17.1 million). Current predictions indicate the market size will double in the coming years.
Polish regulation on the process of merging companies does not differ from solutions, applied in other European states. Furthermore, these laws are influenced by changes to similar European regulation. However, in analysing the company merger control process in Poland, it is important to differentiate two significant issues: first, the control of the registry court and second, competition law.
Although the profession of a lawyer so far has not required a change of the location of practice too often, in the globalised world of today, lawyers more and more often represent clients also outside of the jurisdiction within which they practice on a daily basis. As a consequence, in diverse legal cultures they come across ethical standards different than their own. This pertains, among others, to the confidentiality principle in international commercial arbitration.
Often, investors have to restructure the companies they own, and Poland is by no means an exception in this regard. The process entails taking action on the part of previous or new managers. However, Polish law presents legal risks to members of the management board and each manager participating in the administration of a company ought to be familiar with these risks. This article will present the most pertinent legal risks in terms of criminal, fiscal and civil liability faced by members of management boards of companies subject to restructuring.
The role of the mortgage in Poland is on a constant increase. One can see that the difficult period in financing investments, especially in the real estate sector caused by the crisis, is slowly drawing to an end. The revival occurring after many months is manifested in the increasing number of commenced investments and entails, obviously, both investors as well as of financial institutions’ interest in new forms of securing the financing of projects. Hence, the question on the role of the mortgage in commercial transactions returns.
The granting of a temporary injunction is an important method for the protection of the rights of an entity willing to pursue its claims before a court. Proceedings concerning the granting of a temporary injunction are a procedural form of interim legal protection and its function in the examination proceedings is ancillary.
In the case of non-litigious proceedings, the number of parties that may participate in the proceedings is theoretically unlimited – apart from the applicant, the status of a party in the proceedings (i.e. a participant) may be obtained by any person interested in the case who proves that the outcome of the proceedings affects the scope of their rights or obligations.
Bankruptcy is declared in relation to a debtor which has become insolvent. A debtor is insolvent when it fails to perform the required pecuniary obligations. If the debtor is a legal entity or organisational unit not possessing a legal personality, but a separate act grants its legal capacity, it is also deemed as insolvent when its obligations exceed the value of its estate, even if the obligations are met on a standing basis.
Intellectual property rights can sometimes be underestimated or even overlooked in a due diligence progress preceding a corporate transaction. This occurs because intellectual property is not a physical asset. Its very existence and scope, and thus its value heavily depends on contractual rights and other legal issues. Yet, intellectual property may be the most valuable asset of the company and acquirer should attach utmost attention to their proper investigation and evaluation. This article discusses vital issues in corporate transactions through the lens of an IPR lawyer and provides a practical checklist of what needs to be done and cared for.
The Paper reviews the legal requirements and processes associated with the going-private transaction. Since delisting dramatically changes the investors’ position, the law imposes certain mechanisms aimed at minority investor protection, which – correspondingly – the controlling majority needs to observe. These legal mechanisms equip the minority with an exit option so as to mitigate the liquidity loss of their original investment. Correspondingly, this trade-off imposes on the acquirer additional transaction cost that needs to been taken into account.
Not only are listed companies exposed to takeovers, control change may occur in non-listed companies as well, although for obvious reasons the latter are less vulnerable to unsolicited takeover. An important puzzle of the entire legal framework facilitating takeovers is the squeeze-out mechanism. Squeeze-out is understood as a means of the residual shares of the target. In many jurisdictions squeeze-out only exists for listed companies. This is not the case in Poland, where there is a separate set of rules applicable to non-listed companies. This article discusses practical problems associated with the compulsory acquisition of non-listed companies under Polish Law.
A corporate merger is capable of significantly amending the position of shareholders in the two or more companies embraced by such a transformation. Additionally, creditors as third parties, might also be affected by their debtor’s transformation. This article discusses the position of dissenting shareholders and corporate creditors and explains what legal rights and remedies they enjoy. On the other hand, the existence of a certain level of minority and creditor protection imposes a legal risk on the transaction which also needs to be taken into account as a cost factor.
Takeover law has been subject to European harmonization for many decades. The finally adopted 13th Directive of 2004 is widely perceived as a modest compromise. Hence, substantial differences remain among national laws and legal practice. For a successful tender bid or – taking the opposite perspective – for an effective takeover defence, it is crucial to comprehend the legal framework governing takeovers and to understand specificities the target board’s duties and available defence mechanisms.
In the event of a declaration of liquidation bankruptcy or arrangement bankruptcy, which removes the bankrupt’s rights to manage the assets comprising the bankruptcy estate, the court, pursuant to Article 174.1.4 of the CCP, is obligated ex officio, to suspend the pending proceedings as well as inform the receiver in bankruptcy or the court administrator on the pending proceedings, setting a relevant time period for him to accede to the said proceedings.
The issue of control over unfair terms is one of the basic issues of European harmonization of private law, mainly due to Directive 93/13 of 13 April 1993 on unfair terms in consumer contracts, which was adopted and is being implemented into legal systems of member states of the European Union. However, the subject has not yet been exhausted, and the process of regulating the issue has not yet been terminated.
In the current financial climate, corporate disputes are inevitable. Such conflicts often result from a combination of factors, and developing a comprehensive dispute resolution strategy has never been more important. A company needs to manage risks and deal with conflicts as soon as they arise. A company needs to manage risks and deal with conflicts as soon as they arise. There will be questions about whether a conflict should be resolved in court, via arbitration or through other forms of alternative dispute resolution. Since there is no ‘one size fits all’ approach, each solution has its pros and cons.
The Polish Ministry of Justice has prepared draft amendments to the Bankruptcy and Rehabilitation Law (“BRL”), proposing the repeal of two controversial provisions of this Act. Under the current law, on the declaration of a business’ bankruptcy (bankruptcy with the possibility of entering into a reorganization agreement – Article 142 BRL, as well as bankruptcy covering the liquidation of the bankrupt party’s estate – Article 147 BRL), any arbitration covenants made by the bankrupt party lose their force of law, and any already pending proceedings are subject to discontinuance.
Unless otherwise agreed by virtue of the jurisdictional choice or arbitration clause, the disputes between entrepreneurs in Poland are examined within special commercial proceedings by the commercial divisions of state courts. In these proceedings, the parties face many formal requirements. Failing to observe those requirements may result in losing the case, irrespective of the legal evaluation of the merits of the case.
Amid the economic crisis, entrepreneurs should carefully consider European provisions regulating bankruptcy issues, i.e. Council Regulation (EC) No. 1346/2000 of 29th May 2000. Under these provisions, the declaration of insolvency of a company in one member state may be carried out by the court of another member state.
The current economic crisis has affected the world’s markets in a number of different ways. Some countries are struggling to cope with a rapid economic slowdown, while others are emerging virtually unscathed in comparison. An example of the latter is Poland, a country buoyed by export growth, industrial production and increasing levels of foreign direct investment (FDI). Ruth Saunders spoke to the partners of Kubas Kos Gaertner, one of Poland’s leading law firms to find out more.
The global financial crisis that began last year, so far has been relatively gentle on the Polish economy. According to the current data published by Eurostat, only Poland and Cyprus have recorded positive GDP growth out of the EU member states that have communicated their results. However, despite the relatively good shape of Polish businesses, a significant weakening of the Polish currency in relation to the Euro has taken place since August 2008.
Professor Andrzej Kubas PhD. The introduction of the free market economy principles, and soon after of the market economy principles in Poland at the turn of the 1980’s and 1990’s has fundamentally changed both the substantive law links between enterprises as well as the manner of dispute resolution and mediation in commercial cases.
Polish law contains provisions due to which declaring the bankruptcy of an enterprise, an entrepreneur not only may continue his operations, but may also obtain extra protection against creditors. Such a “deal” may also prove useful for creditors whose claims will be satisfied to a higher degree than through the regular sale of assets.

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