Klauzula porządku publicznego jako podstawa odmowy uznania lub wykonania orzeczenia sądu polubownego w polskim prawie arbitrażowym na tle prawnoporównawczym

Abstract

The public policy is the commonly recognized reason for which the recognition or enforcement of an arbitral award may be refused. This exception is acknowledged under the New York Convention and it has also been incorporated in the Polish Arbitration Law of 2005. The article examines the public policy exception in the international commercial arbitration, as it is understood in the legal doctrine and applied by the courts around the world. The general conclusion is drawn that courts in the major jurisdictions almost unanimously faithfully apply the policy favoring enforcement and rarely refuse the recognition of the arbitral awards because of the ordre public. The article then examines the public policy exception under the Polish law with a particular emphasis on its practical application by the courts. Under the formula established in the Polish case law, the public policy is violated if the arbitral awards infringes the public order as such, that is the main principles of the organization of the state or the socio‑economic principles prevailing in Poland, defined primary in the Constitution, or the fundamental principles of the various fields of law. An observation is made that when looking at the surface, the Polish courts tend to carefully use the public policy, recognizing its exceptional and narrow character. Nevertheless, the closer look at some of the judgments show that Polish judges have a difficulty in grasping the divergence between the prohibition to go beyond the merits of the case (no revision au fond) and the permitted scope of review when searching for the violations of the public policy.