Farewell to separate procedure in commercial cases
When amendments to the Civil Procedure Code enter into force, B2B litigation will be conducted under the same rules as other civil cases.
On 16 September 2011 the Polish Parliament adopted an amendment to the Civil Procedure Code which includes elimination of the separate procedure for commercial cases, introduction of “horizontal” interlocutory appeals, participation in proceedings by non-governmental organisations, and changes in enforcement of non-monetary relief. The President of Poland signed the amendment into law in October. The changes will go into force in May 2012.
Separate procedures for commercial cases have functioned in Poland since 1989, when the institution of State Commercial Arbitration was eliminated and commercial cases were shifted to separate trial procedures conducted before commercial courts which are part of the state court system.
The existing regulations provide for a separate approach to commercial cases, differing from the approach to other civil litigation. In business-to-business cases, it is not possible to change the parties, which limits third-party practice, for example by preventing impleading of third-party defendants or summoning third parties to intervene as plaintiffs. Counterclaims are barred in commercial cases. Claims may also not be amended. Because of evidentiary preclusion, the plaintiff must state its full position and present all evidence in its statement of claim, and the defendant must do likewise in its response. Another special feature of current commercial practice is that the judgment of the court of first instance constitutes a writ of attachment which is enforceable without issuance of a separate enforcement clause.
According to the justification presented in support of the bill to amend the code, there are no longer sufficient reasons to maintain these procedural differences in handling of commercial cases. When the new rules go into force, all of the separate procedures in B2B cases will be eliminated and such cases will be handled the same as other civil matters.
The changes are expected to reduce the degree of formalism in commercial cases. As stressed in the justification for the bill, imposing more rigorous procedures on the parties to commercial disputes was particularly disadvantageous to small and medium-sized enterprises. Nonetheless, the formal and rigid rules were effective in concentrating the trial procedures. Under the new rules liberalising the treatment of commercial cases, it is expected that there will be a rise in the use of delaying tactics by litigants. According to the statistics, the civil courts are already the least effective area of the Polish justice system. However, the proponents of the amendment claim that the new rules will expedite and simplify the proceedings. This will not be seen until next year, because the current rules will continue to apply to cases commenced before the effective date of the amendment.
Zuzanna Rudzińska, Dispute Resolution & Arbitration practice, Wardyński & Partners