The Scope of Mandatory Provisions of Procedural and Substantive Law Binding upon a Court of Arbitration - Czech (& Central European) Yearbook of Arbitration - Borders of Procedural and Substantive Law in Arbitral Proceedings - 2013
Professor Andrzej Kubas is an attorney, a former lecturer at Jagiellonian University of Kraków and the former head of the Chair of Civil Law. He is presently the Senior Partner at the Polish law firm of KKG Kubas, Kos, Gaertner. He is an expert in civil and commercial law, international commercial arbitration and litigation. Professor Kubas has also acted as arbitrator in numerous domestic and international proceedings. Formerly, he was a member of the Legislative Council of the Prime Minister of the Republic of Poland and vice-president of the Polish Bar Association. He is also an author of many books and articles.
Kamil Zawicki is an attorney and partner at the Polish law firm of KKG Kubas, Kos, Gaertner, heading its “German Desk”. He has broad experience in litigation and arbitration. Mr. Zawicki’s areas of interest are mainly international business commercial law and Mergers & Acquisitions. He is the author of several publications on arbitration, insurance and re-insurance law and corporate law.
The scope of binding mandatory provisions of procedural and substantive law seems to be one of the most important problems of arbitration, especially international arbitration. It is connected to various other concerns, e.g. the law applicable to various elements of arbitration, mainly the arbitration agreement, but also arbitrability. Poland, with its Private International Law of 2011, is a party to the European Convention on Arbitration and the New York Convention. It attempted to resolve this issue in a clear manner. Even a confirmed indication of the law governing arbitration – and the arbitration agreement to be specific – does not necessarily signify that there is unambiguity as to which substantive, procedural and public law provisions are mandatory and thus binding upon a court of arbitration. The answer to this question is of paramount importance for the parties as the violation of mandatory provisions of law can lead to the setting aside of an arbitral award or to the denial of its enforcement or recognition. This paper discusses these issues from the perspective of the arbitration background of the Republic of Poland with its relatively new arbitration law and private international law.