The arbitrability of corporate disputes has long been a controversial issue in Poland. Recent changes in Polish law introduced by the Act of 31 July 2019 aimed to resolve the issues surrounding and give the green light to arbitrating corporate disputes. Unfortunately, it seems that these amendments have failed to solve all of the problems and have even created additional uncertainties.
A recent Supreme Court case touched on the obligations of an arbitral tribunal which cannot base its award on party-appointed experts' opinions. In a controversial decision, the court clarified that in such cases, when both parties request a tribunal-appointed expert, the tribunal should allow such a motion and cannot merely decide against the motioning party, as this may cause it to violate its obligation to consider the case, which – according to the Supreme Court – is part of public policy.
It is obvious to arbitration practitioners that an arbitral award cannot deal with claims not brought before a particular tribunal. However, it is also clear that vacating an award due to a violation of public policy should be an exceptional measure. The Supreme Court recently dealt with these two principles and leaned towards the former, setting aside a domestic award granted for interest for a different period than the one demanded by the claimant in the proceedings.
In post-arbitral proceedings, parties challenging an unfavourable award or its enforcement often argue that they were deprived of the right to present their case or that the tribunal violated the rules of procedure or committed some other procedural error and often request the state courts to order the tribunal to present the arbitral case file. A recent Supreme Court decision evaluated the usefulness and necessity of granting such requests and clarified that such measures should be granted only rarely.
Parties unhappy with an arbitration award often try to question its enforcement based on public policy, raising numerous violations of law that do not amount to public policy. However, public policy is a tool that can also protect the legal system in certain situations. Two interesting Katowice Court of Appeals decisions made on the same day by the same judge in two non-related cases demonstrate how the courts deals with collusion cases.
Parliament recently introduced the simple joint stock company to the Commercial Companies Code. This change aims to provide a simpler and cheaper option than standard joint stock companies regarding company formation, operation and liquidation and a more modern and flexible company model with a legal personality that will be particularly attractive to start-ups. However, the introduction of this new type of company has provoked divergent opinions.
The legislature recently introduced a regulation on e-financial statements. As a result, all financial reports submitted by Polish companies (with the exception of entities preparing financial statements in compliance with the international accounting standards) must be drawn up electronically using files with an '.xml' extension as defined by the Ministry of Finance. Polish companies should take appropriate steps to mitigate the potential risks and comply with this revolutionary regulation as soon as possible.
The Commercial Company Code allows representation by a supervisory board or proxy appointed by a resolution of a shareholders' meeting in contracts or disputes between companies and their management boards. In this context, the Supreme Court recently examined whether a limited liability company should be represented by a general partner or its management board when amending a limited partnership agreement, despite the fact that the limited partner was a member of the company's management board.
Appealing against shareholders' resolutions is one of the most controversial areas of Polish company law. A recent Supreme Court resolution found that the shareholders' resolution of a limited liability company could not be annulled by the courts just because it was contrary to the company's articles of association. This resolution appears to put an end to many years of controversy.
The Code of Commercial Companies provides that the supervisory board of a limited liability company cannot give binding instructions regarding the management of the company's affairs to its managers. As there is no similar explicit provision prohibiting a shareholders' meeting from issuing such instructions, the question arises as to whether this was an intentional omission by the legislature and whether managers of limited liability companies must follow instructions given by shareholders.
The first implementing regulations of the Act of 14 December 2018 on the Promotion of Electricity from High-Efficiency Cogeneration were published on 21 August 2019. The act aims to exploit the potential of cogeneration to improve air quality in Poland and increase the efficiency of heating and cooling systems.
The prime minister and the minister of the environment recently presented a new programme called My Electricity, which aims to promote the use of photovoltaics. The introduction of My Electricity is one way to achieve the government's renewable energy target (ie, 15% of energy from renewable sources by 2020); however, additional programmes that support renewable energy production are needed.
Maciej Bando's five-year term of office as the President of the Energy Regulatory Office recently came to an end. A new head of the regulatory body may lead to a change of method in the execution of some competences under its administrative discretion. This change of method may be particularly visible in network and supply activities, as most of the regulations in this regard are developed by the President of the Energy Regulatory Office and other administrative bodies in the European Union.
The Act on Promoting Electricity from High-Efficiency Cogeneration recently entered into force. It establishes support mechanisms for combined heat and power (CHP) installations connected to district heating networks, which will replace the previous support scheme that expired at the end of 2018 and was based essentially on certificates of origin for energy from CHP installations.