The Polish Supreme Court (Sąd Najwyższy) has recently intervened (23.9.2010 Sygn . Akt III CZP 57/10) on the issue of jurisdiction of the arbitral tribunal about the validity of contract.
These are the facts. A corporation had sued a bank to nullify an agreement between them. The respondent had objected a lack of jurisdiction due to an arbitration clause referring the dispute to an arbitration panel. The Court of First Instance rejected the objection and ruled that there is the competence of the ordinary judge to hear this case (applying the Kompetenz – kompetenz principle, that every judge is the judge of its own jurisdiction); in particular, the Court of First Instance interpreted Article 1157 of the Polish Civil Procedure Code in the sense that the arbitral tribunal could know only matters in the discretion of the parties (arbitrability principle), rather the discipline of nullity of the contract is binding and outside of the willingness of the parties and, therefore, could not be deferred to the arbitral tribunal, but it must be attributable to the ordinary judge . The defense of the Bank challenged the decision, the Court of Appeal has decided to submit to the Supreme Court the question whether the issue of the nullity of a legal act could be referred to an arbitral tribunale, as the literal interpretation considers that the arbitrability of an issue arises from the possibility to have the right and there are different interpretations for the solution of the relevant issue.
The Supreme Court held that – the interpretation of the whole system – hence the principle that the arbitral tribunal deem incompetent about the validity of the contract would be inconsistent with the regulatory system of the arbitration. The Court ruled that the availability of the right is the only criterion to verify the possibility to refer the matter to the judgment of the arbitrators.
The decision of the Supreme Court is correct, in that the judgment on the availability or otherwise of the right in dispute must relate to the substantive law considered “staticly” (ie , a contractual obligation, a claim for damages, a nuptial tie) and not “dynamicly” (I ask for a refund of the given because the contract is void , I claim damages for negligence, I ask for divorce for incompatibility of character). Using the categories of civil procedure , the examination of the availability of the issue has to be made more on the relief sought (what is the object of my request) that the cause of action (the reason why I ask). Taking an example: a property right is almost always waived (and, therefore, be deferred to arbitration), while the dissolution of marriage is a matter unavailable and can not be removed from the jurisdiction of the ordinary judge, who will have jurisdiction over the division of the common property too. The first instance decision was incorrect, because it confused between disposable right and mandatory rule, but these concepts operate on different planes : the parties can not change the rules of the nullity of a contract, but a party can validly renounce – for example – the return the amounts given in fulfillment of a contract void .
There are not any particular differences with the rules in force in Italy .