Dispute resolution – is it either a common court or arbitration or is it common court vs arbitration?

There are two primary ways in which a civil dispute can be resolved: before a common court of law or an arbitration court. The linguistic definitions of the concepts of “court” and “arbitration” provided in the Dictionary of the Polish Language (https://sjp.pwn.pl/) align with that statement, emphasising their respective relevance to dispute settlement:

• Arbitration «resolution of disputes by arbitrators»
• Court «an institution established for the purpose of resolving matters under dispute».

The key difference here stems from the fact that in a common court, disputes are settled by state appointed justices (professional judges), whereas in an arbitration court the task falls to arbitrators selected by the parties (who need not be active justices).

In both cases, the purpose of the proceedings is the same – to resolve a dispute by handing down an enforceable ruling. The procedural paths towards that end are also similar in the two types of institutions (involving claims, responses, evidence, and judgement). What differs, however, is the method of traversing these paths and, more often than not, the time it takes to do so.

A juxtaposition of the content and volume of the Civil Procedure Code and the Rules of Arbitration applicable to respective arbitral courts (e.g. the Court of Arbitration of the Polish Chamber of Commerce in Warsaw or the Court of Arbitration of the Lewiatan Confederation) seems to suggest that procedural rules established by the latter are more accessible and intuitive when compared to the CPC (among other things, owing to the absence of constant reminders about something being disregarded, returned, etc. by the court). The formal aspects of proceedings held under the rules of CPC ought not to be a problem in themselves, provided that they are interpreted within the spirit of the Code. After all, the purpose of a civil procedure is to resolve disputes in civil matters, rather than leave them unresolved due to e.g. formal reservations.

Naturally, arbitration proceedings are hardly free from rigours regulations and arbitral cases do not proceed or reach resolutions automatically (e.g. due to the weight of evidence). Quite the contrary in fact – claims must be put forward and substantiated in a reasonable, efficient, and concise manner as the arbiters and other participants are typically experts on the issues under dispute, and rulings tend to be handed down more swiftly than in a common court.

Regardless of whether the case is to be examined before a common or arbitration court, the prevailing principle remains the same. A case that has been efficiently and meticulously prepared may be settled after the first exchange of submissions.

To use the example of a response to claim:

• CPC – not less than 2 weeks for submitting the response; an application for extension of the deadline may be filed;
• SAKIG – not more than 30 days for response; an application for extension may be filed;
• Lewiatan – 21 days for response; an application for extension by up to 21 can be filed.

In principle, the relevant timeframes are similar. The proceedings are initiated analogously, although in the case of common courts, one can tend to “lose” the sense of time in the context of the subsequent stages of the evidentiary proceedings (witnesses, expert witnesses, etc.) and it becomes more difficult to control the relevance of the evidence taken.

Nonetheless, both under the provisions of the CPC and the respective rules of arbitration, it is very much possible to efficiently handle the case. It all depends on the appropriate attitude, focus on reaching the resolution, and the ability to steer clear of the pitfalls of excessive formalism in the “administration” of the proceedings over time. Naturally, due to the organisational challenges and overall caseloads faced by common courts, the same can prove more difficult in their case. But there is nothing in the provisions of relevant law to prevent it.

Whatever the case may be, however, I would not go as far as treating common and arbitration courts as competitive authorities. Both institutions serve their purpose and are equally needed to ensure fair and efficient settlement of disputes. Ideally in a way that instils a sense of genuine resolution, rather than “merely” having been ruled upon.