Is arbitration possible in the Polish legal system for transport contracts? Will an arbitration clause included in a contract for resolving potential conflicts be applicable and compliant with the law? To which types of transport can it be applied?
Expert answer: Arbitration is one of the amicable forms of conflict resolution. It involves resolving legal disputes that arise in business between cooperating companies through private, i.e., non-state, institutions (e.g., chambers of commerce). It is becoming increasingly popular in the business environment, which is why one often encounters a so-called arbitration clause in contracts signed by cooperating companies.
Arbitration proceedings have many advantages. These certainly include:
– Speed and confidentiality of the proceedings;
– Simplifications in conducting the proceedings;
– The ability for the conflicting parties to choose an appropriate arbitrator;
– Lower costs of conducting arbitration proceedings compared to the costs of conducting proceedings before a common court.
Regarding domestic transport, it is worth noting that the Act of November 15, 1984, on Transport Law does not explicitly regulate which court is competent to resolve a dispute arising between the parties to a contract. It is therefore appropriate to apply the provisions of the Code of Civil Procedure of November 17, 1964, which allows for a civil case to be heard before an arbitration court. For this purpose, it is required to submit a joint declaration of the parties in dispute, who agree to this form of resolving their case. This consent must be expressed in writing. It may take the form of a so-called arbitration clause. In such a case, a provision is introduced into the content of the contract being concluded, resulting in future disputes being resolved before an arbitration court. Another possibility is for the parties to conclude a separate agreement that specifies in its content which matter will be subject to resolution by an arbitration court.
The CMR Convention, on the other hand, clearly defines in its provisions which court is competent to resolve a case concerning international transport. According to Art. 31, in all disputes arising from transport subject to the Convention, the plaintiff may bring the case before the courts of the contracting countries designated by the parties by mutual agreement, and furthermore to the courts of the country in whose territory:
– the defendant has their habitual residence, principal place of business, or the branch or agency through which the contract of carriage was concluded, or
– the place where the goods were taken over for carriage or the place of delivery is located,
– and may not bring the case before other courts.
However, it does not rule out the possibility of using arbitration proceedings in cases subject to the CMR Convention. According to Art. 33 of the Convention, a contract of carriage may contain a clause conferring competence on an arbitration tribunal, provided that the clause stipulates that the arbitration tribunal shall apply this Convention.
Therefore, answering the question – arbitration in matters related to the transport of goods is possible and is an increasingly chosen form of conflict resolution by the parties to a contract. Before choosing arbitration, however, it is worth analyzing all its pros and cons, especially in the context of future disputes, because it is worth pointing out that arbitration proceedings are, as a rule, single-instance, so there is no form of appeal, unless the wording of the arbitration clause is modified to provide for a two-instance system.
Legal basis:
- Act of November 15, 1984 – Transport Law
- Act of November 17, 1964 – Code of Civil Procedure
- Convention on the Contract for the International Carriage of Goods by Road (CMR) and Protocol of signature, done at Geneva on 19 May 1956
Legal status of the publication (date): 2017-11-06