1.
Court of Arbitration at the Polish Banks Association has been recognized by the Supreme Court in its order of 11.24.2010 (II CSK 291/10) to be unsuitable for settlement of disputes with customers of banks.
Supreme Court has recognized that the Rules of Arbitration Court of the PBA does not ensure equality between the parties on the stage of selecting arbitrators. In the opinion of the Supreme Court raised "substantial concerns", the statement "[...] that>> only one \u0026lt;of the arbitrators shall be chosen from a list created by the presidium of the court, which appoints the Board of the Union of Polish Banks, whose composition effect have Only banks, including the defendant. "The objections relate to the principle of equality, expressed as to the arbitration clause in the Articles. 1161 § 2 of the CPC.
accordance with the Rules of Arbitration Court of the PBA:
- umpire shall appoint arbitrators from the list of arbitrators created the bureau of the court (§ 15.1),
- in the absence of agreement on the choice of arbitrators umpire chosen by the President of the Court of Arbitration of the PBA from the same list of arbitrators (§ 15.2).
regulations are internally inconsistent in the binding list of arbitrators, as the in § 6.2 indicates that the list of arbitrators is not binding on the parties. Similarly, the PBA provides on its website that the list of arbitrators is not binding (see here.)
Supreme Court also pointed out that the choice of the presiding arbitrator (umpire) is even more important for the outcome of the case than the mere selection of an arbitrator. It is clear that the decision in that court by a majority vote in the composition essentially triple (§ 32).
second
It corresponds to the order of the Supreme Court, although no direct citation to a decision of that court 16/03/1948 (IC 1260-1247, PiP 1949/6-7/139). The ruling follows that "clause whereby one party leaves the choice of all or a majority of the arbitrators, is opposed to good morals, as providing an advantage in filling the positions of one side of the arbitrators, shall subject the other side of the discretionary power of the first."
This ruling, like the above probably. CSK 291/10 provision II, based on the assumption that the rules operate to exclude a judge only in exceptional cases, the risks of impartiality by the individual circumstances of a particular arbitrator. In all other cases arbitrator, which the party can not raise obstacles to the individual, are not exempted.
Hence, provisions to exempt the judge did not provide sufficient guarantees of equal treatment of parties. Irregularity is not stuck there because a particular arbitrator, and the method of selection of an arbitrator. Therefore, it is necessary to eliminate a defective mechanism for selection of an arbitrator. It is possible just based on the principle of equality of the parties to arbitration proceedings.
third
reservations as to the infringement of the principle of equality between the parties in the arbitral proceedings are also supported in practical activities that court.
At the beginning of the year 2009 a list of arbitrators contains 82 people. At the end of the year 2009 inscribed on the list were only 34 referees. Currently, only 33 are listed arbitrators. Reducing the list of arbitrators, in case the surge in the number of cases brought before the court (and the impact of the first things the bank-customer relationships), it is very disturbing.
situation was commented prof. Marek Wierzbowski, "raises concern attempts to limit expansion of the list, or even reduce it. In the case of PBA's basic list has been recently reduced, and a large part of the directors constitute a legal departments banks. "(M. Wierzbowski in " Limiting the selection of arbitrators raises objections. ", Rzeczpospolita, 14.08.2009).
fourth
accordance with our" line of Supreme Court case-law, all records of an arbitration clause in contracts with PBA business with the bank are void.
Nullity write means being able to bring an action before an ordinary court, inter alia, by the appropriate bank branch or place of performance. This is no longer even matters brought before the court of arbitration.
contrast, in the cases already verdict this court, record is invalid premise aside (Article 1206 § 1, paragraph 1) the CPC.) sentence by a court of law in dealing with the application to set aside the arbitration award. The complaint must be lodged within 3 months from the date of notification of the reasons.
Since the Complaint proceeding shall be subject to two stages and, in principle, the possibility of lodging an appeal in cassation, bank customers who have found the framework agreement, an arbitration, they still face years of court battles.
Mariusz Korpalski
counsel
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