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  1. 2 Kwartalnik Prawa Prywatnego

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  1. 2 Comi U.

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  1. 1 2018

  2. 1 2017

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Podstawy związania umową o arbitraż spółek holdingowych w międzynarodowym arbitrażu handlowym

100%
Comi U.
Kwartalnik Prawa Prywatnego
|
2018
|
vol. 27
|
issue 1
229-265
EN
This paper analyses grounds for binding non-signatory companies by an arbitration agreement signed by another company from the same group of companies. It discusses certain doctrines created by state courts and arbitral tribunals to fill the gap in domestic regulations. Among them there is a group of companies doctrine, equitable estoppel and connected with it good faith doctrine as well as piercing the corporate veil. Purposes of these doctrines may seem similar, however, prerequisites as well as effects of their application are different. The most frequently used criteria include abuse, circumvention or violation of law or rules of equity as well as acting and behaving like a party to the contract that the company has not signed. The criterion of the purpose of law is also important. At the same time, a necessary condition is the existence of strong corporate connections between a company that has not signed the contract and at least one of the formal parties to the contract as well as significant under-capitalization of a subsidiary company. Binding non-signatory related companies on the basis of these doctrines may lead to the attribution of legal or contractual obligations or to assigning responsibility for actions or intentions. This may result in the assignment of obligations or liability of the company to its shareholder or vice versa, as well as relativisation of the separateness between two related companies that are not in the relationship of domination or dependence. The doctrines discussed in the paper aim at protecting the law against abuse and avoiding unfair decisions. Excessive vagueness of the prerequisites for their application may, however, lead to legal uncertainty and, as a result, threaten the security of trade. Therefore, such premises need to be defined as precisely as possible on the basis of objective criteria.
2

Umowa o arbitraż a spółki powiązane: podstawowe problemy

100%
Comi U.
Kwartalnik Prawa Prywatnego
|
2017
|
vol. 26
|
issue 3
631-648
EN
This paper analyses possibilities of binding non-signatory companies by an arbitration agreement signed by another company from the same group of companies. It discusses certain issues linked with this problem such as legal character, form and scope of an arbitration agreement, separability of an arbitration agreement, parties’ autonomy and applicable law. There are strong arguments for binding non-signatories by an arbitration agreement, as binding companies from the same group can be necessary due to principles of equity and litigation economics. Nevertheless, legal regulations in Poland as well as in other states are not satisfactory to address the issue. For this reason state courts and arbitration tribunals created many doctrines forming a framework for binding a non-signatory company by an arbitration agreement. This paper outlines several most popular of those doctrines used in some European states and the United States. Those doctrines are not, however, recognised in Poland. Each doctrine has different prerequisites and thresholds. They have also various effects of application. However, most of them rely on a previous comportment of a company, which did not formally signed an arbitration agreement nor the basic agreement, but nevertheless it was engaged in executing the agreement signed by another company from the same group of companies. In the continental Europe the most reasonable and acceptable proposition for binding no n-signatories by an arbitration agreement is the so-called “good faith doctrine”. It relies on a rule that no one can benefit from his dishonest behaviour. This rule should be the basis for reconsideration and amendment of Polish legal regulation concerning arbitration proceedings in order to keep up with economic reality.
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