Seven Reasons Why the New Arbitration Rules of the Court of Arbitration at the Polish Chamber of Commerce Provide That Arbitration Proceedings May Only Be Initiated by the Filing of a Request for Arbitration
The new Arbitration Rules of the Court of Arbitration at the PCC provide that arbitration proceedings may only be initiated by filing a request for arbitration. The previous Rules of 2014 indicated that proceedings could be initiated by filing a request for arbitration or by filing a statement of claim. This new solution has stirred controversy. Critics argue that it limits the autonomy of the parties' will, that it is unfamiliar to Polish practitioners and not adapted to the realities of Polish arbitration, which is dominated by simple cases.
Before explaining why the new solution is better than the previous one, I will first explain how a request for arbitration in the new Rules differs from a statement of claim in the old Rules. The only significant difference is that the statement of claim had to be accompanied by evidence, whereas evidence does not have to be attached to a request for arbitration. A similar difference exists between the response to a statement of claim in the old Rules and the response to a request for arbitration in the new Rules.
Firstly, the solution adopted in the new Rules makes it easier for the arbitral tribunal to manage the case. At the case management conference, the tribunal agrees with the parties what evidence will be filed and when, in what form, and how it should be marked in the pleadings and served. If the parties file a statement of claim and statement of defence before these issues have been determined with the tribunal, the tribunal will in many cases either have to accept that the evidence will not be presented as it believes it should be, or it will oblige the parties to resubmit the pleadings and evidence. This takes time and generates additional costs for the parties.
Secondly, the new solution does not restrict the claimant in any way. Despite the fact that it is customary not to attach evidence to a request for arbitration, or to attach only a few pieces of evidence (usually the contract from which the dispute arises), the new Rules do not prohibit the attachment of evidence. Thus, if the claimant for some reason thinks it is a good idea to submit a 150-page request for arbitration with 300 attachments, he or she may do so.
Thirdly, this rule protects the defendant. For no matter how extensive the request for arbitration is and how much evidence the Claimant attaches to it, the Respondent can always file a short response to the request for arbitration without any attachments. Thus, there is no longer any reason for the defendant to request an extension of time to file a response to the request for arbitration, pointing out that the claimant has prepared the statement of claim for six months and has filled it with hundreds of attachments. The 30 days for filing a response to a request for arbitration should be sufficient in most cases.
Fourthly, the solution is adapted to both large and complex cases and small and simple ones. In the large cases, the parties usually file a statement of claim and a statement of defence after the case management conference and the PO1. In the latter, the Rules do not require the filing of a statement of claim and statement of defence. Thus, if the parties attach all the evidence (e.g. the contract and the invoice and the demand for payment and the response to it) to the request for arbitration and the response to that request, the arbitral tribunal may determine that the next action in the case will be a hearing. There is therefore no reason to duplicate the pleadings.
Fifthly, the filing of a request for arbitration is easier than the filing of any pleading in state court proceedings. It is sufficient to read § 21 of the Rules. If a party mistakenly refers to a request for arbitration in the heading with the word “statement of claim”, “pleading” or “pleading initiating proceedings”, it is not a formal defect and no negative consequences will arise from it. This follows from the universal principle that it is the content of a document that is important, not its name.
Sixthly, request for arbitration was introduced into the Polish Code of Civil Procedure almost 20 years ago (Article 1186 of the Code of Civil Procedure) and into the Rules of the Court of Arbitration at the PCC more than 10 years ago. No Polish lawyer can therefore claim to be unfamiliar with it.
Seventhly and finally, the commencement of proceedings solely by way of a request for arbitration is the standard in international arbitration. The more closely the solutions adopted in the Arbitration Rules of the Court of Arbitration at the PCC resemble those adopted in rules of other international arbitration institutions, the greater the chance that foreign parties will agree to submit their dispute to the decision of an arbitral tribunal operating under the Rules of Court of Arbitration at the PCC.
Michał Kocur