In Poland, several options are available to identify the asset position of another party. First, one can search for assets using publicly available information. There is an online public registry of entrepreneurs (legal entities and natural persons conducting business activities are considered separately) as well as a land and mortgage register. There are also other useful sources of information that might help to identify the assets of another party, such as the Register of Pledges or the Court and Business Gazette (Monitor Sądowy i Gospodarczy). The nature of the case dictates whether more specific and appropriate sources of information be used. Second, one can always hire a business intelligence agency, which can evaluate the credibility of another party and/or look for its assets. The disclosure of property details is regulated by the Polish Code of Civil Procedure (PCCP), which is described in 2.4 below.
Where assets are identified, freezing orders are available. These are regulated by the provisions of Second Part of the PCCP (Security of Claims, Article 730 et seq.) Security may be requested in each civil case heard by the court before the trial starts. Security may be also requested by each party or participant to the proceedings if he or she substantiates their legal interest in the claim. A legal interest will exist if the absence of security would prevent or significantly hinder the enforcement of a ruling, or otherwise prevent or seriously hinder satisfying the purpose of the proceedings.
In theory, a petition for security shall be heard immediately, but in no case later than one week from the day on which the petition is filed with the court, unless otherwise provided for by a specific provision. In practice this may take up weeks.
Monetary claims shall be secured by means of:
• an attachment of movable property, earnings, money in a bank account or other amounts due or property rights;
• mortgaging the obligor's immovable property;
• prohibiting the selling and/or encumbering of immovable property which does not have a land and mortgage register or whose land and mortgage register has been lost or destroyed;
• mortgaging a ship or a ship under construction;
• prohibiting the sale of a cooperative title to premises;
• compulsory administration over the obligor's enterprise or agricultural farm, or a plant comprising part of the enterprise, or a part of the enterprise or the agricultural farm.
If the object of the security is for other than a monetary claim, the court awards such security as it deems fit in the circumstances. In particular, the court may:
• regulate the rights and obligations of parties to the proceedings for the duration of the proceedings;
• prohibit the disposal of objects or rights involved in the proceedings;
• suspend execution proceedings or other proceedings aimed at enforcing the ruling;
• rule on the custody of minors and contacts with a child; and
• order a relevant warning notice to be recorded in the land and mortgage register or other appropriate register.
The PCCP defines the meaning of “enforcement order” (tytuł egzekucyjny). In general, an enforcement order, together with a declaration of enforceability (klauzula wykonalności), provides an enforceable title (tytuł wykonawczy). There are several types of enforcement orders: (i) a non-appealable or immediately enforceable court decision, (ii) a settlement reached before the court and (iii) a non-appealable or immediately enforceable ruling of a court clerk (referendarz sądowy). Also, other rulings, settlements or deeds enforceable in the court execution proceedings may – under relevant legislation – constitute an enforceable title. An enforceable title is also a notarial deed whereby a debtor or other person specified by law submits themselves to its execution if other specified conditions are met (Article 777 of the PCCP). Enforcement titles in Poland also apply to rulings issued in EU member states (Article 1153(14) of the PCCP).
Finally, if judgments issued in EU member states cover protection measures – included within the scope of EU Regulation 606/2013 on mutual recognition of protection measures in civil matters (Protection Measures Regulation) –they can also be used as a basis for the commencement of execution proceedings (Article 1153(15) of the PCCP).
As a rule, judgments in commercial cases are enforceable, eg:
• judgments ordering or prohibiting the doing of acts/injunctions. (Detailed information regarding this matter has been specified in Title III of PCCP, specific provisions on execution, section I, execution of non-monetary performances);
• declaratory judgments, with the exception of judgments determining the existence or non-existence of a legal relationship or law (Article 189 of the PCCP) or if the action is dismissed. Please note, the decision on costs in these proceedings is enforceable;
• default judgments; and
• judgments made without notice.
In order to enforce a domestic judgment one must follow the procedure laid down in the PCCP. First, a declaration of enforceability must be obtained. There is no requirement to appoint an attorney to file an application for a declaration of enforceability or to provide security for costs.
In principle, the court of first instance shall issue a writ of execution. However, the court of second instance may also issue such a writ for as long as the case files remain with that court. It should be noted, however, that this does not apply to the Supreme Court of the Republic of Poland (Sąd Najwyższy) and to specific cases listed in Article 781, section 1 of the PCCP. Enforceability may be challenged in the appeal procedure.
After obtaining the declaration of enforceability, the creditor must file an application for initiation of the enforcement proceedings with the relevant court enforcement officer (komornik sądowy). There are some obligatory elements to the application, such as a copy of the judgment and confirmation of stamp duty payment, as well as voluntary ones such as a power of attorney.
An application must contain information that identifies the obligation to be satisfied, and it must be accompanied by an enforcement order with a declaration of enforceability. It is worth noting that it is possible to submit an electronic application for an enforcement title; see Article 783, section 4 of the PCCP.
The creditor has to specify the manner of execution in his or her application; for example, execution of real estate, movables or bank accounts. An application for the initiation of execution allows for all methods of execution, except for foreclosure.
Upon completion of the enforcement action, the debtor is served with the notification on initiation of the enforcement proceedings. Such a notification provides information about the manner of enforcement and is accompanied with a copy of the enforceable title. The court enforcement officer is obliged to present the original enforcement title to the debtor if requested.
After the completion of the enforcement proceedings, the court enforcement officer notes this on the title. The outcome of the execution should be reported in the title and the title filed or, if the obligation covered by the title was not fully satisfied, the enforceable title should be returned to the creditor. Completion of execution otherwise than by termination is declared by the court enforcement officer in a decision that also rules on the costs of execution.
In theory, pursuant to the Article 781(1) of the PCCP, applications for a declaration of enforceability must be adjudicated by the court immediately, but in any event no later than three days from the date on which they are filed. In practice, the declaration of enforceability is usually issued no later than two weeks from the date of filing the application. There is no limitation period to applying for a declaration of enforceability.
It should be also noted that the time taken for an enforcement proceeding is difficult to determine and varies depending on the case.
In general, there is no fee (except for PLN6 per page if no copy of a judgment is enclosed). However, there are some specific cases where a PLN50 fee is applicable.
It should be noted that the costs of enforcement proceedings conducted by the court enforcement officer vary depending on the case. The rules on these costs are regulated in the Act of 28 February 2018 on the court enforcement officers costs. In general, the enforcement fee shall be paid by the debtor (10% of the enforced claim). However, there are many specific rules and fees, depending on the case, which should be evaluated before entering into enforcement proceedings.
Section V of the PCCP includes provisions on the disclosure of property. If a debtor's property, attached in enforcement proceedings, is unlikely to satisfy the claims that are being enforced or if the creditor shows that the enforcement has not satisfied his or her claim in full, the creditor may request that the debtor be required to submit a list of his or her property, specifying particular assets and their location, his or her receivables and other property rights or information concerning legal transactions.
The creditor may also request disclosure of property details before commencement of execution if:
• he or she proves that he or she cannot satisfy the entire claim from the property known to him or her or from the current periodic benefits due to the debtor for a period of six months; or
• after acquisition of an enforceable title, he or she ordered the debtor to pay the debt, confirmed by registered letter against acknowledgement of receipt, and the debtor failed to make the payment within 14 days from the day of delivery of the payment order.
Regarding domestic judgments, the defendant or a third party can oppose the enforcement procedure by the following means:
• a complaint (zażalenie) against a court decision to issue a declaration of enforceability pursuant to the Article 795, section 1 of the PCCP, which concerns only the decision to issue a declaration of enforceability. The court does not examine the merits of the case;
• a complaint (skarga) against the action of a court enforcement officer (or failure to act) pursuant to Article 767 of the PCCP. Such a complaint can be filed by a party or third person whose rights were violated or threatened by the enforcement officer's action or failure to act. As before, the court does not examine the merits of the case;
• an action (pozew) by the defendant to limit or cancel the enforceability of an enforceable title in whole or in part pursuant to Article 840 of the PCCP. There are three grounds for bringing this kind of action:
a) the defendant denies facts on whose basis the declaration of enforceability was issued and, in particular, if he or she questions the existence of an obligation recognised by an enforcement order or if he or she questions the transfer of an obligation despite the existence of a formal document recognising that transfer;
b) an event took place after the enforcement order was issued, as a result of which the obligation expired or can no longer be enforced; and
c) a spouse against whom the court issued a writ of execution under Article 787 of the PCCP proves that the creditor is not entitled to the executed obligation. The spouse may raise allegations not only on the grounds of his or her own rights, but also allegations which the spouse was previously unable to raise.
• an action by a third party to exempt an item from enforcement/execution if it violates the third party's rights pursuant to Article 841 of the PCCP.
Some types of domestic judgments are not enforceable. These are judgments whose content suggests that compulsory enforcement is not possible. For example, the following judgments do not constitute enforcement orders:
• declaratory judgments (issued on the basis of Article 189 of the PCCP);
• rulings determining legal relations (for example divorce judgments, decisions on establishing the acquisition of an inheritance); and
• judgments dismissing actions (except decisions determining the costs of the parties in these judgments).
There is no official central register of judgments in Poland. However, there is a website (Portal Orzeczeń Sądów Powszechnych) where more than 300,000 rulings are currently available in Polish. No personal data is published there.
There is also the National Register of Debtors (Krajowy Rejestr Dłużników, (KRD)), which was established in 2003, based on the Act on the Disclosure of Economic Data and the Exchange of Economic Data. This register is currently the largest platform for the exchange of economic information. It maintains data on the financial standing of business entities and natural persons.
The National Register of Debtors lists the names of those individuals or entities whose financial liabilities exceed a total amount of PLN200 (in the case of consumers) or PLN500 (in the case of entrepreneurs) and which remain unpaid for at least 30 days. All required conditions are specified in the above-mentioned Act.
An individual may, every six months and free of charge, check if their name is shown in the register, thus enabling individuals to ascertain whether someone has, for example, swindled his or her money or taken out a loan in his or her name.
A consumer may check the name of a contractor and if the said contractor is shown in the KRD register as a debtor, the consumer has the right to change the terms of contract.
The regulations on the enforcement of foreign judgments are specified in Part Three of the PCCP entitled "Enforcement Procedure" (Articles 795(1)-795(17)) and in Book Three of the PCCP, under "Recognition and Confirmation of Enforceability" (Articles 1145 onwards).
For foreign judgments (we are focusing on commercial matters) granted in EU member states, the main applicable law is Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. Although the above Regulation has been replaced by Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, it continues to apply to proceedings instituted before Regulation 1215/2012 came into force (that is before or on 10 January 2015).
There are also other EU regulations that concern specific proceedings, such as Regulation (EC) 805/2004, which creates a European Enforcement Order for uncontested claims (European Enforcement Order Regulation), amended by Regulation (EC) 1896/2006 creating a European order for payment procedure, or Regulation (EC) 861/2007 establishing a European Small Claims Procedure.
Regarding foreign judgments (as before, concerning commercial matters) granted outside the EU, the following laws are applicable:
• the Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters 2007 (New Lugano Convention);
• the convention on choice of court agreements concluded 30 June 2005 (entered into force on 10 January 2015); and
• bilateral international agreements concerning the recognition and enforcement of judgments in civil and commercial matters.
A judgment issued in an EU member state and enforceable in that member state is enforceable in other member states under the same conditions as the judgment given in the original member state. Therefore, as a rule, all judgments (regarding commercial matters) are enforceable if they are enforceable in the member state where the judgment was issued, and the applicable law will be that of the original member state that issued the judgment.
In the case of judgments rendered outside the EU, and in the absence of any international agreement, the PCCP regulations apply. The rulings of foreign courts on civil matters become enforceable titles once their enforcement has been confirmed by a Polish court. Enforcement is confirmed if a ruling is enforceable in the state of issue and is not blocked by the obstacles referred to in sections 1 and 2 of Article 1146 of the PCCP.
As stated before, a judgment given in an EU member state is recognised in other member states. That is why there are no types of judgments that are a priori excluded from recognition and enforcement.
Regarding judgments rendered in states outside the EU, in the absence of any international agreements the PCCP regulations apply. In general, the rulings of foreign courts on civil matters become enforceable titles. As stated below, no types of judgments are expressly excluded from recognition and enforcement.
With regard to EU judgments, the procedure for the enforcement of judgments delivered in another member state is governed by the law of that member state (Article 41.1 of the Recast Brussels Regulation). In view of the fact that a judgment rendered by a court of an EU member state does not need to be declared enforceable, the relevant documents under the Recast Brussels Regulation must be submitted to the enforcement authority, together with the application for initiation of the enforcement proceedings (together with a copy of the judgment which satisfies the conditions necessary to establish its authenticity and a certificate issued under Article 53 of the Recast Brussels Regulation).
As mentioned before, a judgment given in a member state is enforceable in other member states (Article 39 of the Recast Brussels Regulation). This is why the enforcement proceedings are governed by the same rules as domestic enforcement proceedings, from the moment of application to the beginning the enforcement proceedings. With regard to non-EU member states, a declaration of enforcement is issued by a regional court (sąd okręgowy) in the place of the debtor's residence or registered office or, if there is no such court, the regional court in whose area enforcement is to be conducted (Article 1151(1), section 1 of the PCCP).
In these proceedings there is no requirement to appoint an attorney to file an application for a declaration of enforceability. However, a party who does not have a place of stay or residence or a registered address in Poland or another EU member state, and who has not appointed a court representative domiciled in Poland, must appoint a representative for delivery in Poland. If such a representative for service is not established, judicial writs addressed to that party are left in the case files and are considered duly served (Article 1135(5) of the PCCP).
It should be also noted that, with regard to EU members, a duty to provide security, a bond or a deposit cannot be imposed on a party on the grounds that he or she is a foreign national or that he or she is not domiciled in or a resident of the member state addressed. Contrast that with non-EU citizens. If no international agreement applies and a complaint against a decision to issue an enforcement clause is dismissed, or if a decision to issue a writ of execution is passed, the court of appeal can conditionally enforce the ruling of a foreign state's court if payment of the relevant deposit is made by the creditor (Article 1151(2), section 3 of the PCCP).
In contrast to judgments rendered by courts in EU member states, which need not be declared enforceable, non-EU foreign courts' judgments in civil matters only become enforceable titles once their enforcement is confirmed by a Polish court (Article 1150 of the PCCP). At that point, the enforcement proceedings are governed by the same rules as domestic enforcement proceedings (from the moment of issuing the application to the beginning of enforcement proceedings).
In the case of an EU foreign judgment, the applicant has to submit the following documents with his or her application for enforcement:
• a copy of the judgment which satisfies the conditions necessary to establish its authenticity;
• the certificate issued according to Article 53 of the Recast Brussels Regulation, certifying that the judgment is enforceable and containing an extract of the judgment as well as, where appropriate, relevant information on the recoverable costs of the proceedings and the calculation of interest. The certificate is issued by the court of origin at the request of any interested party using the form set out in Annex I of the Recast Brussels Regulation. The competent enforcement authority may, where necessary, require the applicant to provide a translation or a transliteration of the contents of the certificate.
Pursuant to Article 61 of the Recast Brussels Regulation, there is no need to authenticate the required documents. However, the Polish language is the only recognised language in enforcement proceedings in Poland and, in theory, there is no need to provide a translation of the judgment. The competent enforcement authority can require the applicant to provide a translation of the judgment only if it is unable to proceed without such a translation (Article 42.4 of the Recast Brussels Regulation). Also, the person against whom enforcement is sought may request a translation of the judgment in order to contest the enforcement (under conditions specified in the Article 43 of the Recast Brussels Regulation). Taking the above into consideration, it seems advisable to prepare a translation of the judgment before the beginning of enforcement proceedings.
In the case of a judgment issued outside the EU, a person who requests the enforcement of a ruling of a foreign court has to provide:
• an official copy of the judgment;
• a document certifying that the judgment is non-appealable, unless it is evident from the content of the judgment that it is non-appealable;
• a certified translation into Polish of the documents referred to in this list;
• if a judgment was issued in proceedings in which the defendant did not defend the merits of the case, a document must be presented to confirm that the initial pleading had been served on the defendant;
• a document confirming that the judgment is enforceable in the state of issue, unless its enforceability is evident from the content of the judgment or the law of that state; and
• in the event of appointing a proxy, the power of attorney must be presented and stamp duty of PLN17 paid.
The judgment should be legalised by an authority competent in the state where the judgment was given, unless the state is a party to the HCCH Convention Abolishing the Requirement of Legalisation for Foreign Public Documents 1961 (the Apostille Convention). The Apostille Convention replaces the legalisation process with a less formal certificate (apostille).
With regard to enforcement proceedings of judgments issued in EU countries, the debtor is not informed about the ongoing procedure until the court enforcement officer begins execution proceedings. In the case of non-EU judgments, the procedure is different.
That is why the time taken to enforce such a judgment does not vary substantially from the domestic cases described above. However, an enforcement proceeding of a judgment issued in a country outside the EU is adversarial, which makes it a longer procedure. A debtor can present to the court his stance in a case within two weeks from the delivery of a copy of a petition (Article 1151(1), section 2 of the PCCP). The court may hear a petition in camera. The time taken by the proceedings will thus be prolonged due to the time needed to deliver a copy of the petition to the debtor, for the debtor to present his statement and for a declaration of enforcement to become non-appealable. An appeal against a declaration of enforcement may be filed with the regional court and by way of an appeal in cassation.
The fee for an application for a declaration of enforceability of a foreign ruling, or a ruling issued by any other foreign authority, or settlement made before a foreign court, or other foreign authority, or authorised by a foreign court or a foreign authority costs PLN300.
It should be also noted that the costs of enforcement proceedings conducted by the court enforcement officer will vary depending on the case, but, as with domestic enforcements, these costs are regulated by the Act of 28 February 2018 on court enforcement officer costs.
It should be noted that the enforcing court does not review the substance of the foreign judgment.
With regard to judgments issued in EU member states, as mentioned before a judgment given in a member state is recognised in other member states without any special procedure being required (Article 36 of the Recast Brussels Regulation). Therefore, the options available to challenge enforcement depend on the regulations applicable in the EU state of origin. It is especially important to take into consideration the fact that the court or authority can suspend the proceedings in whole or in part if the judgment is challenged in the member state of origin. It should be noted that the enforcing authority is not entitled to consider the grounds on which the foreign court assumed jurisdiction unless an interested party makes an application to refuse the recognition of judgment (Article 45 of the Recast Brussels Regulation). If the judgment conflicts with the specified provisions of the Recast Brussels Regulation concerning jurisdiction, recognition of the judgment will be refused. This covers the exclusive jurisdiction provisions, where courts of a member state have exclusive jurisdiction regardless of the domicile of the parties. In its examination of the grounds of jurisdiction described above, the court to which the application was submitted is bound by the findings of fact on which the court of origin based its jurisdiction.
Regarding service, there are no specific requirements for proper service in respect of EU member states (Recast Brussels Regulation) and other states (PCCP provisions). The general rules apply. However, the lack of proper service is an important ground for refusal in these proceedings.
With regard to judgments issued in non-EU member states, it should be noted that, in the absence of any international agreement, the PCCP regulations apply. As a matter of principle, the rulings of foreign courts on civil matters are recognised as a matter of the law unless there are obstacles as specified in Article 1146 of the PCCP. Pursuant to this Article, there are several grounds for refusal which the enforcing court must examine. A ruling is not recognised if:
• the ruling is not final and binding (non-appealable) in the state where it was issued;
• the ruling was issued in a case which falls under the exclusive jurisdiction of Polish courts;
• a defendant who did not defend on the merits of the case was not duly served an initial pleading in due time to enable him to defend himself or herself;
• a party was deprived of the possibility to defend himself or herself in the course of the proceedings;
• a case involving the same claim between the same parties had already been brought before a court in Poland before it was brought before a court of a foreign state;
• the ruling is contrary to a previous non-appealable ruling of a Polish court or a previous non-appealable ruling of a court in a foreign state recognised by Poland, issued in a case involving the same claim between the same parties; or
• recognition of the ruling would be contrary to the basic principles of the legal order of Poland (the public order/public policy clause).
For EU member states, the enforcing court is not required to examine the refusal grounds ex officio. The grounds for refusing recognition and enforcement are the same; however, the interested party must file an appropriate application. The recognition (enforcement) of the judgment must be refused (Article 45 of the Recast Brussels Regulation) if:
• such recognition is manifestly contrary to public policy in the member state addressed;
• the judgment was given in default of appearance – if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him or her to arrange for his or her defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him or her to do so;
• the judgment is irreconcilable with a judgment given between the same parties in the member state addressed;
• the judgment is irreconcilable with an earlier judgment given in another member state or in a third state involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the member state addressed; or
• the judgment conflicts with the indicated provisions of the Recast Brussels Regulation concerning jurisdiction
Another issue that should be clarified is the concept of "public policy", which is important with respect to every foreign judgment. For EU member states, one of the grounds for refusing recognition and enforcement is that such recognition is manifestly contrary to public policy in the member state addressed. For non-EU member states, Article 1146 of the PCCP applies in the absence of an international agreement and one ground for refusal of a judgment is that recognition would be contrary to the basic principles of the legal order of Poland.
Therefore, the notion of “public policy” encompasses not only the principles of the Polish constitution, but also those rules that govern particular areas of the law. The judgment must comply with the basic rules of the Polish legal system concerning court proceedings and the substantive law. The notion of "public policy" includes fundamental "procedural injustice", which is often understood as a breach of the main procedural rules. For example, one such main rule is the adversarial principle under which the parties are obliged to prove their rights before an impartial judge, who stays neutral and passive during the trial.
A judgment of a foreign court is deemed to infringe the fundamental rules of the Polish legal system if, for instance, the effect of such a judgment is contradictory to the concept of a particular legal institution itself, not just the particular provisions regulating the same institution in both states. For example, the public policy concept applies in a hypothetical situation where a divorce judgment is recognised in Poland while, at the same time, it is forbidden to dissolve a marriage through divorce in Poland. In this situation, the foreign divorce judgment infringes Poland’s public policy. However, the public policy principle will not apply if the divorce judgment is recognised in Poland and only minor legal provisions concerning divorce are different in both countries.
The public policy clause aims to prevent the recognition of foreign judgments that do not conform to the fundamental legal standards of Poland. It is not the foreign judgment itself, but the irreconcilable differences it has with the fundamental rules of the Polish legal system. Therefore, when considering whether a foreign court ruling must be made subject to public policy principles, the court examines the possible effect of recognition on the Polish legal system.
The main cases where the public policy clause is considered are those that concern family law (including divorces), succession law and litigation (procedural issues).
Last but not least, it should be noted that, in general, the court's decision to issue a declaration of enforceability can be appealed to a court of cassation. Additionally, a reopening of proceedings can be requested and a plea of illegality of a non-appealable decision may be filed. This does not apply to judgments issued in EU states, since there is no need to grant a declaration of enforceability.
The law governing the enforcement of domestic arbitral awards is specified in Articles 1212 to 1217 of the PCCP. The UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention) implements the above-mentioned provisions of the PCCP, which are also applicable to all arbitral awards.
Poland is a contracting party to the New York Convention and has adopted the convention with both available reservations: (i) a reciprocity reservation, under which the state may apply the convention only to awards issued in another convention state and (ii) a commercial reservation, under which the convention will apply only to disputes regarded as "commercial" under that country's national law. This means that Poland applies the New York Convention only to the recognition and enforcement of awards made in the territory of another contracting state and Poland will apply the New York Convention only to differences arising out of legal relationships, whether contractual or not, that are considered commercial under national law. According to the information available on the website of the United Nations Commission on International Trade Law, these restrictions apply to Poland.
Poland is also a party to the European Convention on International Commercial Arbitration 1961 (Geneva Convention).
Despite the fact that there is no definition of an arbitral award for domestic proceedings pursuant to Article 1197 of the PCCP, there are several conditions that an arbitral award must meet.
First, the judgment of an arbitral body shall be made in writing and signed by the issuing arbitrators. If a judgment is issued by an arbitration panel of three or more arbitrators, the signatures of the majority of arbitrators (accompanied by an explanation as to why the other signature(s) were not provided) is sufficient.
Second, a judgment of an arbitration court must include the rationale for the decision taken.
Third, a judgment of an arbitration court should contain a reference to the arbitration clause on whose basis the judgment was issued, identify the parties and the arbitrators and specify the date and place of issue. Under Article 1.2 of the New York Convention, the term "arbitral awards" includes not only awards made by arbitrators appointed for each case, but also those made by permanent arbitral bodies to which the parties have submitted.
Pursuant to Article 1214 section 1 of the PCCP, the court shall, in camera, decide on the recognition of an arbitral award or a settlement made before an arbitral tribunal which is not subject to enforcement. If an award or a settlement reached before an arbitral tribunal can be enforced by execution, the court confirms enforceability by issuing a declaration of enforceability thus making such an award or settlement an enforceable title. As a rule, money awards are enforceable. However, it is only possible to determine whether an arbitral award is enforceable after an examination of its content.
The domestic arbitral award provisions of the PCCP are applicable for recognition and enforcement. The proceedings in the first instance are ex parte (in the absence of one or more parties).
In circumstances where the parties have not agreed to an arbitration clause, pursuant to Article 1158, section 1 of the PCCP, an application for recognition and enforcement must be brought before a court that is competent to hear the case. It is worth noting that in the case of domestic arbitral awards, according to Article 125 of the PCCP a claim confirmed by an award is subject to a ten-year limitation period, even if the statutory period of limitation for such claims is shorter.
In circumstances where an arbitration clause has been agreed, the party's petition must contain the duly authenticated original award or a duly certified copy thereof, as well as the original or a duly certified copy of the arbitration clause or agreement. The certified copy should be made by a notary or consul, or it can be made in accordance with Article 129, sections 2 and 3 of the PCCP, by the party's court agent, being an attorney-at-law (radca prawny), advocate (adwokat), patent attorney (rzecznik patentowy) or attorney of the State Treasury Solicitor's Office (radca Prokuratorii Generalnej Skarbu Państwa). The party is obliged to provide a certified translation in Polish of the award or settlement reached before the arbitration tribunal or arrived at by way of an arbitration clause (agreement). If an award has not been made in Polish, the claimant party is obliged to provide a certified translation thereof drafted by either a sworn translator or by a consul
As a rule, the PCCP does not require any specific information to be included in the application for a declaration of enforceability of a domestic arbitration award. However, it seems to be desirable to formulate the application in such a way as to indicate that there are no obstacles to declare.
This execution procedure, when a declaration of enforceability is granted, is the same for both domestic and foreign judgments.
With regard to foreign arbitral awards, the statutory provisions of the New York Convention apply if the parties are bound by this. If the award is rendered in a state that is not a party to the New York Convention, the relevant provisions of the PCCP apply.
The court will only recognise or confirm the enforcement of a judgment of an arbitration court issued abroad, or a settlement reached before an arbitration court abroad, after trial.
Similarly, as in the case of domestic awards, an application for the recognition and enforcement of a foreign arbitral judgment should be brought before a court which would have been competent to hear the case had the parties had not entered into an arbitration clause (Article 1158, section 1 of the PCCP).
In the case of foreign arbitral awards, the issue of limitation periods is covered by the law of the state where the award was issued.
Under Article IV of the New York Convention, the translation must be certified by an official or certified translator or by a diplomatic or consular agent. The legalisation of the award must be made pursuant to provisions of the law where the award was issued (or pursuant to the provisions of the HCCH Convention Abolishing the Requirement of Legalisation for Foreign Public Documents 1961 (Apostille Convention), if applicable.
As a rule, the PCCP does not require any specific information to be included in the application for a declaration of enforceability of a foreign arbitration award. However, it is advisable to formulate the application in such a way so as to declare that there are no obstacles to enforceability. It is recommended that the following be included in such an application: (i) information proving that the foreign judgment is final and binding (non-appealable); (ii) a foreign court statement declaring that the opposite party was duly represented in the original proceedings; and (iii) the judgment complied with the fundamental principles of Polish public policy.
Additionally, under Article V of the New York Convention, it is recommended that the following information be included: (i) a valid arbitration clause and an indication that the wording of the award does not exceed the scope of such an arbitration clause; (ii) a statement to the effect that the opposite party participated in the proceedings in line with any applicable rules; and (iii) a statement that the composition of the arbitration panel was proper and that the arbitration award was binding on the parties.
When a declaration of enforceability is granted, the execution procedure is the same as for domestic and foreign judgments.
It is almost impossible to determine the timing of proceedings. These can vary substantially depending on the case and the court.
The court fee for an application for a declaration of enforceability of an arbitration award or a settlement made before a court is PLN300. The cost of the execution procedure is the same for both domestic and foreign judgments.
The grounds for refusing enforcement of domestic arbitral awards are specified in Article 1214 of the PCCP. The court can refuse to recognise or confirm the enforcement of an arbitral award or a settlement reached if:
• under PCCP provisions, the dispute cannot be adjudicated by an arbitration court;
• the recognition of a judgment of an arbitration court, or a settlement reached before an arbitration court, would be contrary to the basic principles of the legal order of Poland (the public policy clause); or
• the award of the arbitration court or a settlement concluded before such a court deprives the consumer of protection granted to him by mandatory provisions of contract law. (Where the consumer is one of the parties to the contract and where the law applicable to the contract is the law chosen by the parties.)
With regard to domestic arbitral awards, an appeal against a decision of the court of appeal concerning the recognition or statement of enforceability of an arbitration court's judgment issued in the Republic of Poland, or a settlement reached before that arbitration court, may be filed with another panel of the court of appeal (Article 1214, section 4 of the PCCP).
Regarding foreign arbitral awards, an appeal in cassation may be filed against a final court decision concerning the recognition or statement of enforceability of a judgment or a settlement reached before an arbitral tribunal abroad. Moreover, a resumption of proceedings may be requested and a plea of the illegality of a final decision issued may be filed.
As a rule, the enforcing court is not allowed to review the domestic and foreign award as to its substance. However, in some cases the prerequisite public policy clause may be used to challenge the award, even if it complies with all the necessary formalities and requirements. The court can refuse to recognise or confirm the arbitration award or the settlement reached on the grounds of a public policy clause.
The grounds for refusing enforcement of international awards are specified in Article 5 of New York Convention. Recognition and enforcement of an award can be refused at the request of the party against whom it is invoked, but only if that party furnishes to the competent authority (where recognition and enforcement is sought) proof that the:
• the parties to the arbitration agreement (or arbitral clause) under the law applicable to them had been under some incapacity or the said agreement was not valid under the law to which the parties had agreed or, in the absence of any indication to that effect, under the law of the country where the award was made;
• the party against whom the award was made was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings, or was otherwise unable to present his or her case;
• the differences were not contemplated or did not fall within the terms of the submission to arbitration. If the award contained decisions on matters beyond the scope of the submission to arbitration, provided that the decisions on matters submitted to arbitration can be separated from those not so submitted, the part of the award which contains decisions on matters submitted to arbitration may still be recognised and enforced;
• the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, in the absence of such agreement, was not in accordance with the law of the country where the arbitration took place; or
• the award has not yet become binding on the parties or has been set aside or suspended by a competent authority of the country in which, or under the law of which, the award was made.
The recognition and enforcement of an arbitral award can also be refused if the competent authority in the country where recognition and enforcement is sought finds that:
• the subject matter of the dispute must not be settled by arbitration under the law of Poland; or
• the recognition or enforcement of the award is contrary to the public policy of Poland.
If no international agreement applies (including the New York Convention), then Article 1215 of the PCCP takes its place. The grounds based on Article 1215 of the PCCP are very similar to the grounds stated in the New York Convention. First, the grounds stated in the Article 1214, section 3 apply. Irrespective of these grounds, the court, at the request of a party, can refuse to recognise or confirm the enforcement of a judgment of an arbitration tribunal issued abroad or a settlement reached before an arbitral panel abroad if the party proves that:
• there was no arbitration clause or the arbitration clause was void, invalid or had expired according to the relevant law;
• the party was not duly notified of the appointment of an arbitrator or of proceedings before an arbitration court, or was otherwise deprived of the opportunity to defend his or her rights before an arbitration court;
• the award concerned a dispute that was not covered by an arbitration clause or fell beyond the subject matter and scope of that clause;
• the composition of the arbitration tribunal or the proceedings before the tribunal were not in accordance with the agreement between the parties or, if there was no such agreement, with the law of the state where proceedings before the arbitration court were conducted.
• an award is not yet binding on the parties or has been set aside, or its enforcement has been postponed by a court of the state in which, or according to whose laws, the judgment was issued.
Al. Stanów Zjednoczonych 61
+022 516 2600 / 022 516 2606
+022 516 email@example.com
The recognition and enforcement of foreign judicial decisions in Poland is a complex issue. Procedures vary depending on the type of decision, and it is next to impossible to cover every aspect of this issue in one comprehensive article. One could discuss the recognition and enforcement of arbitral awards, state court judgments or administrative decisions and, when it comes to the state courts, the topic could cover criminal and civil matters. However, even if we were to focus on civil law only, it would still cover too wide a spectrum of cases that do not fall under a single set of regulations. Property, commercial, bankruptcy, insolvency, family and inheritance matters are all considered to be civil matters.
Having said that, this brief will concentrate on the recognition and enforcement of foreign judgments in property and commercial matters. This is being done for two reasons: (i) these type of judgments reflect the majority of court rulings and (ii) the general rules of procedure, which apply to such judgments, also apply to the other types of civil matters, so they should give you an idea of how the system works as a whole.
The first and foremost rule is that foreign judgments in the civil matters are recognised by operation of law, ie automatically. Unless the judgment is somehow in dispute or needs to be enforced by the state authorities, it does not have to undergo any specific court procedure. In order to invoke such a judgment, either in administrative proceedings or in court proceedings (eg as evidence in another case), it is enough to deliver an official copy of the judgment accompanied with a document (or clause) stating that the judgment is final and non-appealable. If the defendant did not exercise his rights in the course of the proceedings which ended with the judgment in question, the plaintiff should also provide proof that the submission initiating the proceedings had been duly served upon the defendant. Needless to say, the aforementioned documents should be translated into Polish by a certified translator.
In the event that one of the parties (or a third party whose rights are affected by the foreign judgment) needs confirmation that the judgment is subject to recognition, an application should be filed with the competent regional court. It is a court of higher instance which could, theoretically, have had geographical jurisdiction in the subject-matter had it not been adjudicated abroad.
The counterparty to the applicant has the right to reply to the aforementioned application. Nevertheless, the court may still decide on the application in a closed hearing (in camera) without notifying the parties. The court’s ruling regarding the recognition of the foreign judgment can be appealed to the court of appeals. Furthermore, the court of appeals’ ruling can also be challenged by means of a cassation claim filed with the Supreme Court.
Polish law does not require positive prerequisites in order to recognise foreign judgments. The law only enumerates situations in which foreign judgments cannot be recognised. First, a Polish regional court is obliged to declare that the foreign judgment at hand cannot be recognised if it is not final and non-appealable in the country of its origin. It does not mean, however, that such a judgment cannot be overturned. The phrase ‘final and non-appealable’ only refers to a regular course of appeal. If, under the laws of the country where the judgment was issued, extraordinary instruments were available (eg a resumption of proceedings ended with a final ruling), they should not prevent the recognition of the judgment in Poland. In principle, a clause stating that the judgment is final should be decisive. Polish judges rarely seek additional information about the applicable law, be it through the Ministry of Justice or through court-appointed experts on that law.
Polish courts cannot recognise foreign judgments issued on matters that are subject to the exclusive national jurisdiction of Polish courts (eg rights over real estate in Poland, the dissolution of a company that has its registered seat in Poland). The same will apply if the defendant was not served with the submission initiating foreign court proceedings or if either of the parties was deprived of their right to defend themselves. That said, being deprived of one’s rights does not equal violation of due process, which is a wider concept. Polish jurisprudence generally accepts the notion that a party is deprived of the right to defend itself, but only if that party was prevented from pursuing its case. If, for example, a foreign court unreasonably dismissed some of the party’s evidentiary motions, but, in general, it did not prevent that party from filing submissions or pleadings on the merits of the case, then this apparent violation of due process would not qualify as an impediment to the recognition of the foreign court’s judgment.
A Polish judge would also deny recognition of a foreign judgment if he learned that another litigation, regarding the same subject-matter between the same parties, had been initiated before a Polish court before it was brought to the foreign court, and has since been pending. Similarly, no foreign judgment can be recognised if it transpires that it was issued in a dispute which had earlier been finally settled in the course of court or administrative proceedings, be they Polish or foreign.
Last but not least, a foreign judgment contrary to Polish public policy cannot be enforced. In practice, it means that the judgment cannot violate or undermine the fundamental, core principles of Polish law. For example, the Polish Supreme Court found a US judgment ordering the payment of extraordinarily high, disproportionate and unreasonable compensation for the alleged harm caused by a press publication to be irreconcilable with public policy. The Supreme Court pointed out that, in principle, damages should only compensate for the actual harm caused – they cannot result in the unjustifiable enrichment of a plaintiff. The court went so far as to state that punitive damages are contrary to continental Europe’s legal culture.
Foreign judgments are also enforceable in Poland, though it does not happen automatically. In order to enforce a foreign judgment, one has to apply to the competent regional court to grant recognition and enforcement. In practice, this is no more than a formal stamp stating that the judgment is enforceable and ordering the competent public authorities (including the Police and court bailiffs) to assist the applicant in the execution of his or her rights. The Polish Code of Civil Procedure enumerates the same impediments to the enforcement of foreign judgments as in the recognition of the same. However, it also provides for one positive prerequisite – the judgment can only be enforced in Poland if it is enforceable abroad).
There is one more significant difference between recognition and enforcement proceedings. The latter can only be initiated by a creditor, ie the party who is entitled to receive payment or demand specific performance in accordance with the given judgment. No third party, whose rights might be affected by the judgment, can enforce the judgment.
As long as the ruling on the granting of the enforcement clause is not final, the foreign judgment may serve as an interim order. This means that the creditor can, for example, freeze the debtor’s assets, but he cannot collect the monies.
Whether it is an interim order or the actual enforcement of the judgment, the court may order the debtor make a deposit to secure potential claims. Of course, the deposit will be returned once the ruling on granting the enforcement clause becomes final.
The rules described above do not apply to judgments issued in EU Member States. Since Poland is a member state, it has to directly apply the latest resolution of the European Parliament and of the Council on the jurisdiction, recognition and enforcement of judgments in civil and commercial matters. It must be mentioned, however, that Denmark is only bound by a previous resolution on this subject, so, when dealing with Danish judgments, the Polish court have to apply a different set of procedural rules. The differences, however, are not that significant.
The same can be said about Iceland, Norway and Switzerland, which are bound by the Lugano convention concluded with the European Union. The convention can be considered to be a predecessor to the above-mentioned resolutions. Therefore, the procedural mechanisms are very similar.
Given the constraints of this article, we will look into certain aspects of the regulations regarding intra-EU relations below. The most important one pertains to the enforcement of judgments issued by EU courts. In contrast to the general rules of Polish civil procedure, EU judgments are enforceable without the need to include enforcement clauses. Creditors may initiate enforcement proceedings by directly approaching the enforcement authorities (the court bailiffs). All they need to provide is an official copy of the judgment and a special certificate issued in their home state. Moreover, the same applies to interim measures, though in this scenario the creditor may also have to provide evidence that the judgment/decision/interim order was duly served upon the debtor. A court bailiff does not even have to require that the aforementioned documents be translated into Polish.
Consequently, it is the debtor who has to defend himself by applying for a refusal of enforcement of the judgment in question. In such an event, the competent regional court may limit the enforcement proceedings to protective measures, making enforcement conditional on the provision of a deposit (collateral) or suspend, either wholly or in part, the enforcement proceedings.
If such an application is filed, the creditor will have the right to reply, but the court will decide on the application in a closed hearing. The court’s ruling regarding the recognition of the foreign judgment can be appealed to the court of appeals. The court of appeals’ ruling may then be challenged before the Supreme Court.
The court fees in respect of recognition and enforcement of foreign judgments are considered affordable. The above-described applications, to be filed with competent regional courts, are subject to a fee of PLN300 (approx. EUR71.5). An appeal against a ruling on any of these applications will cost PLN60 (approx. EUR14.30) and a cassation claim costs PLN300 (approx. EUR71.5). In principle, the costs of enforcement proceedings should be covered by the debtor. The bailiffs’ fees depend on the claim (ie monetary or otherwise) to be enforced and the assets against which the enforcement proceedings are to be conducted (eg bank accounts, real estate, movables etc). For example, in the event of a money claim, the fee is 10% of the collected amount. However, if the debtor satisfies the claim voluntarily by paying the monies to the bailiff, the fee drops to 3%.