FOURTH SECTION

DECISION

Application no . 1485/11 ZAMET - BUDOWA MASZYN SPÓŁKA AKCYJNA against Poland

The European Court of Human Rights ( Fourth Section ), sitting on 25 August 2015 a s a Chamber composed of:

Guido Raimondi , President, George Nicolaou , Ledi Bianku , Nona Tsotsoria , Paul Mahoney , Krzysztof Wojtyczek , Yonko Grozev , judges, and Françoise Elens-Passos , Section Registrar ,

Having regard to the above application lodged on 9 December 2010 ,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Zamet - Budowa Maszyn Spółka Akcyjna , is a Polish joint stock company with its registered seat in Tarnowskie Góry . It wa s represented before the Court by Mr J. Pa ł ka , a lawyer practising in Gliwice .

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. In 2005 the applicant signed a framework contract with ING Bank Ś l ą ski S.A. (“the bank”) for currency option ( opcje walutowe ). The contract contained a clause stating that in case of disagreement the parties would refer their case to the Court of Arbitration by the Polish Bank Association ( zapis na sąd polubowny ) .

4. On 17 July and 8 August 2008 the applicant signed with the bank two agreements on the basis of the framework contract. However, since the agreements in question were entered into by telephone by one of the employees of the applicant who apparently had no authorisation to act on its behalf, the applicant decided to withdraw from them and, on 2 February 2009, it made an appropriate statement to the bank. The bank, however, did not accept the statement and continued to demand payments from the applicant as if the agreements were still binding.

5. The applicant then made a request to the Gliwice Regional Court to apply an interim measure and secure its claims against the bank.

6. On 24 February 2009 the Gliwice Regional Court granted the request and ordered the bank, among other things, to stop executing the transactions of 17 July and 8 August 2008.

7. Subsequently, the applicant lodged two civil lawsuits against the bank with the civil court, and not with the Court of Arbitration, for ascertainment of non-existence or for annulment of the two transactions referred to above.

8. On 25 May 2009 the Gliwice Regional Court granted the applicant ’ s motion. The Court refused the argument relied on by the bank, that the civil avenue had been excluded in the present case because of the clause contained in the framework contract according to which all disputes between the parties should be put before the Court of Arbitration. The Court referred to Article 1157 of the Code of Civil Proceedings stipulating that only matters which may be settled by way of a friendly settlement could be put before the Court of Arbitration. The Court considered that the question of declaring a contract null and void or declaring its existence or non-existence could not be dependent on the parties ’ will and therefore the case in question was not appropriate for the Court of Arbitration. The court further found that the arbitration clause contained in a framework contract should be found ineffective because it did not secure the equality of arms in the proceedings before the Court of Arbitration. In this respect the court noted that the Court of Arbitration had been set up by the Polish Bank Association, of which the defendant bank was a member and the applicant company – not being a bank – could not become a member. The Polish Bank Association was an institution which normally should support its members. The court also analysed the provisions of the Rules of the Court of Arbitration and came to the conclusion that they did not properly secure the equality of arms between the parties.

9. The defendant bank appealed against the decision of 25 May 2009.

10. On 25 August 2009 the Katowice Court of Appeal gave a decision and dismissed the arguments relied on by the first-instance court. It quashed the challenged decision and rejected the lawsuit finding the clause in the framework contract valid and considering that the dispute between the parties should have been examined by the Court of Arbitration.

11. The applicant lodged a cassation appeal with the Supreme Court.

12. On 18 June 2010 the Supreme Court dismissed the cassation appeal as regards the first lawsuit. The court considered that the Regional Court had relied on the wrong provisions of the Code of Civil Proceedings, because at the time when the parties signed the framework contract, other provisions were still in force. These provisions did not allow for the referral of a dispute to the Court of Arbitration depending on whether a particular case was appropriate for a friendly settlement or not. The decisive element was the parties ’ capacity to take on obligations within the framework of a particular legal relation. Relying on the interpretation of the relevant provisions made in its own judgment of 21 May 2010 the Supreme Court refused to accept the applicant ’ s argument that the dispute in question could not be settled by the Court of Arbitration. It found that what was decisive was the parties ’ capacity to reach, also in the form of a friendly settlement, a resolution of the dispute which had arisen between them. According to the Supreme Court the source of the plaintiff ’ s claims was the right which could be freely shaped by the parties and therefore the dispute in question could also be settled independently by the parties. It follows that the arbitration clause was valid and the case at hand was appropriate for a Court of Arbitration.

13. The Supreme Court also referred to the applicant ’ s arguments as regards the alleged lack of impartiality before the Court of Arbitration. It held that the fact that the Court of Arbitration had been created by the Polish Bank Association had not automatically rendered the Court dependent on banks and that in case of justified doubts as regards impartiality of particular judges the applicant could make use of the relevant provisions of the Code of Civil Proceedings concerning exclusion of judges or claims for declaring the Court of Arbitration ’ s judgment null and void.

14. On 23 November 2010 the Supreme Court, relying on its own analysis of the applicant ’ s previous cassation appeal, refused to examine the applicant ’ s cassation appeal as regards the second lawsuit finding that the case did not raise any new issue.

B. Relevant domestic law

15. The relevant provisions concerning submitting disputes to courts of arbitration are contained in the Code of Civil Proceedings (“the Code”).

16. Article 697 of the Code at the relevant time read as follows:

“Within the limits of their ability to making obligations the parties may decide that all disputes for pecuniary rights be submitted to the court of arbitration except for disputes for maintenance and disputes concerning labour law.”

17. Article 1157 of the Code reads, in so far as relevant, as follows:

“If a special provision does not stipulate otherwise, the parties may decide to put before the court of arbitration a dispute concerning pecuniary or non-pecuniary rights which may be the subject of a friendly settlement.”

18. Article 1161 § 2 of the Code reads, in so far as relevant, as follows:

“Clauses providing that disputes be submitted to the court of arbitration which infringe the rule of equality of both parties shall be considered ineffective. This concerns , in particular, granting a right to submit disputes to the court of arbitration or to a common court to one party only.”

19. The judgments and decisions of courts of arbitration are subject to review by the domestic courts under certain conditions.

20. According to Article 1205 of the Code an applicant may lodge a complaint with the Court and ask that the judgment of the court of arbitration issued in Poland be quashed, in particular, when the arbitration clause had been invalid, when a party to the proceedings had been deprived of the possibility to defend himself or when there had been other important procedural shortcomings in the relevant proceedings, listed in details in Article 1206 of the Code.

The court shall also quash a judgement given by the court of arbitration if it finds that the particular case could not have been settled by the court of arbitration or if the judgment of the court of arbitration contravenes against basic rules of the legal order in the Republic of Poland (public order clause) .

21. According to Article 1212 of the Code any judgment given by the court of arbitration, irrespective of the state in which it was issued is enforceable only after having been recognised by the domestic court or after having been appended with an enforceability clause. The court will refuse to recognise a judgment or to append an enforceability clause if a particular case could not have been examined by a court of arbitration or because of the public order clause referred to above.

COMPLAINT S

22. The applicant complained about deprivation of the right to a fair trial; it submitted that it was forced to accept the arbitration clause and that by admitting the validity of this clause the domestic courts deprived it of its right to have its case examined by an independent and impartial court. It further complained that the proceedings before the Court of Arbitration would not secure it a right to appeal. It relied on Article s 6 § 1 and 13 of the Convention .

THE LAW

A. Complaints under Article 6 of the Convention

23. The applicant company alleged that it had not had a fair hearing in the proceedings before the domestic courts. It relied on Article 6 § 1 of the Convention, which provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

24. The Court notes at the outset that Article 6 does not preclude the setting up of arbitration tribunals in order to settle certain disputes. Indeed, the word “tribunal” in Article 6 § 1 is not necessarily to be understood as signifying a court of law of the classic kind, integrated within the standard judicial machinery of the country (see, inter alia , Lithgow and Others v. the United Kingdom , judgment of 8 July 1986, Series A no. 102, pp. 72 ‑ 73, § 201 and Ransado - Transportes Fluviais Do Sado , S.A. v. Portugal ( dec. ), no. 35943/02, 16 December 2003).

25. The Court reiterates the fundamental principles established by its case-law on the interpretation and application of domestic law. While the Court ’ s duty, according to Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention.

26. Moreover, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law. The Court ’ s role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention (see, for example, Waite and Kennedy v. Germany [GC], no. 26083/99, § 54, ECHR 1999-I and Streletz , Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 49, ECHR 2001-II).

27. Turning to the circumstances of the instant case the Court notes that the applicant tried to contest the validity of the arbitration clause in the contract it had signed with the bank. The applicant ’ s case essentially concerned the interpretation of the relevant provisions of the domestic law. It was heard by the national courts at three instances. The Regional Court and the Supreme Court did not accept the applicant ’ s view and considered that the dispute which had arisen in connection with the framework contract had to be examined by the Court of Arbitration. This conclusion was reached by the domestic courts after a thorough examination of all the applicant ’ s arguments put before them (see paragraphs 10, 12 and 13 above). The domestic court ’ s interpretation of the relevant domestic provisions does not appear “arbitrary or manifestly unreasonable”; their decisions are exhaustively reasoned and convincing.

28. The Court further notes that the parties have remedies which enable them to contest the judgments of the courts of arbitration in case of qualified violations of the law; a judgment given by the court of arbitration may be quashed, among other things, if in the proceedings before the court of arbitration the rules of fair trial, including the right to defense, were not respected (see paragraph 20 above). Furthermore, any judgment of the court of arbitration, before it is enforced, needs to be recognized by the domestic court. The requirement of recognition is a further institution by which the courts exercise control over the jurisprudence of the courts of arbitration.

29. It follows that the complaint under Article 6 § 1 about the alleged unfairness of the domestic proceedings is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Complaint under Article 6 § 1 taken together with Article 13 of the Convention

30. The applicant also complained that the proceedings before the Court of Arbitration would be unfair because of in particular, the alleged partiality of the judges. It also submitted that if it turned to that court as stipulated by the framework contract it would have no possibility to appeal unless both parties agreed to it or would agree during the proceedings before the Court of Arbitration, because the proceedings before that court were, as a rule, only held at one instance. Apart from Article 6 § 1 of the Convention, it relied on Article 13, which provides as follows:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

31. The Court notes that according to the information submitted the applicant never instituted proceedings before the Court of Arbitration.

32. The Court reiterates that it is for an applicant to demonstrate that he or she is directly affected by the measure complained of (see Tănase v. Moldova [GC], no. 7/08 , § 104, ECHR 2010; Burden v. the United Kingdom [GC], no. 13378/05, § 33, ECHR 2008). This is indispensable for putting the protection mechanism of the Convention into motion (see Hristozov and Others v. Bulgaria , nos. 47039/11 and 358/12, § 73, ECHR 2012 (extracts)).

33. In the present case, as noted above, the applicant complains that the proceedings before the Court of Arbitration would not guarantee it a right to fair trial without in fact trying to institute these proceedings. It follows that this complaint is incompatible ratione personae with the Convention and must be rejected in accordance with Article 34 of the Convention.

34. Furthermore, as indicated by the Supreme Court in its decision of 18 June 2010, had the applicant instituted proceedings before the Court of Arbitration, in case of doubts as regards the court ’ s partiality, it could have made use of the relevant institutions provided by the Polish Code of Civil Proceedings (see paragraph 13 above).

For these reasons, the Court , unanimously ,

Declares the application inadmissible.

Done in English and notified in writing on 17 September 2015 .

Françoise Elens-Passos Guido Raimondi Registrar President