The Form for Correction and Interpretation of an Arbitration Award

The law uses the term “award” [here, wyrok] to refer to a determination on the merits by an arbitration award. Part Five of the Polish Civil Procedure Code also envisages issuance by an arbitration court of rulings other than awards.1 They do not include determinations of the relief sought by the parties and in this sense are not rulings on the merits. The current arbitration regulations2 include provisions concerning correction, interpretation and supplementation of an arbitration award (Civil Procedure Code Art. 1200–1203). These new provisions raise the question of the form in which arbitrators should carry out the correction or interpretation of an award.

With respect to a motion to supplement an award, Civil Procedure Code Art. 1202 provides for the form of an award, stating that the court shall issue a supplementary award. Art. 1203 §1 also refers to a motion to supplement an arbitration award, alternatively, as a motion for issuance of a supplementary award. It is thus correctly stated in the literature that regardless of the type of relief which the arbitration court did not rule on in the award, including also relief with respect to costs, supplementation in this respect is to be made in the form of an award.

There is a view expressed in the literature that a motion for correction or interpretation of an arbitration award is also granted in the form of an award.3 According to other authors, not only when the motion is granted, but any ruling on correction or interpretation is made in the form of an award.4 It is unclear why in the former case the authors take the view that the form of a ruling by the arbitrators is determined by whether the ruling is affirmative or negative. The regulations do not provide any grounds for such a distinction.

With respect to a motion for correction or interpretation, unlike a motion to supplement an award, the code does not specify the legal form in which the arbitration court is to make the ruling. The wording of Civil Procedure Code Art. 1203 §2 provides an argument in this respect that the drafters clearly treat correction and interpretation of an award differently from supplementing an award. Art. 1203 §2 calls for application by reference of Art. 1195 and Art. 1197 with respect to correction, interpretation, and a supplementary award. If the drafters assumed that correction and interpretation would be carried out in the form of an award, then the proper wording of Art. 1203 §2 would not, when referring to three types of awards, use the term “award” to apply to only one of them. This understanding would lead to the conclusion that the drafters of the code provided for the form of an award only in the case of supplementing an award.

The view that correction or interpretation of an award is ruled on in the form of an award also cannot be justified by the requirement under Civil Procedure Code Art. 1203 §2 to apply Art. 1195 and 1197 directly to correction and interpretation of an arbitration award.

The subject of Art. 1195 is the manner in which a decision is made by the arbitration court, not the form. This provision refers to all types of rulings by an arbitration court, among which it also mentions procedural rulings. However, the subject of Art. 1197 is the form and content of an award, as one of the types of rulings issued by an arbitration court, including the requirements of written form, signature by the arbitrators, indication of the arbitration clause, identification of the parties and the arbitrators, the date and place of issuance, and service of the award on the parties. Direct application of Art. 1195 and 1197 in this instance would mean that all requirements concerning the manner in which a decision is made by arbitrators, written form and all the rest, which the code provides for an award, apply without any modifications to a ruling by the arbitration court on correction or interpretation of an arbitration award. The drafters did not provide, however, that a ruling on correction or interpretation is an award.

It would therefore be erroneous to conclude that the referral to apply another provision means that not only the instruction, but also the premises of the legal rule expressed in the provision to which the reference is made becomes part of the rule constructed on the basis of both provisions, i.e. also the referring provision. A referral is designed to achieve brevity in the text of the referring provision by requiring application of the instruction set forth in Art. 1195 and 1197, and thus the requirements set forth in these provisions concerning the form, content, and manner of adoption of decisions by the arbitration court. The point is to avoid repetition. A referral for ordinary application (rather than application as relevant) means that there is no room for departures from the indicated requirements, but it does not mean that both situations governed by the act, to which the same instructions are to be applied, are identical. A referral does not result in identity of the premises behind the legal rules. If the drafters intended to introduce the rule that a ruling on correction or interpretation of an arbitration award is itself an award, the referral would have been unnecessary. It would have sufficed to use the term “award” in Civil Procedure Code Art. 1203 §2 with respect to rulings on correction and interpretation, as the drafters did with respect to a supplementary ruling. This method of addressing the issue of rulings on correction and interpretation is, moreover, entirely understandable. Despite the absence in Part Five of the Civil Procedure Code of a provision analogous to Art. 708 §1(4) (in the wording prior to 17 October 2005),5 it follows from a number of provisions set forth in the current arbitration law that an arbitration award, for purposes of the Civil Procedure Code, can only be a decision by an arbitration court that rules on the relief requested by the parties. A ruling by an arbitration court on correction or interpretation of an arbitration award is not, by its very nature, a ruling on the relief requested by the parties. Therefore it is also not an award for purposes of the Civil Procedure Code arbitration regulations, and more specifically the provisions concerning a petition to set aside an arbitration award. If an arbitration court using the procedure for correction or interpretation of an arbitration award issued what was essentially a ruling on the merits, then such defective ruling would be subject to being set aside under the procedure for a petition to set aside an award. On the other hand, even though Part Five of the Civil Procedure Code foresees issuance by the arbitration court of rulings other than awards, there is no analogous regulation concerning the form and content of other rulings. The referral to Art. 1195 and 1197 set forth in Art. 1203 §1 thus means that in light of the significance of these rulings, the drafters imposed a duty on the arbitration court to issue rulings in this respect in compliance with the requirements that exist with respect to arbitration awards.

By failing to specify the title of a ruling on correction or interpretation, the drafters of the code did not rule out the possibility of entitling such a ruling as an “award.” When agreeing on the rules and procedures under Civil Procedure Code Art. 1184, the parties and the arbitrators may adopt their own names for decisions by the arbitration court.6 However, exercise of this right will not affect the legal nature of a ruling, particularly in the context of a proceeding upon a petition to set aside an arbitration award or a proceeding for recognition or enforcement. No separate petition to set aside an arbitration award is available with respect to a ruling on correction or interpretation of an arbitration award.7 Under Civil Procedure Code Art. 1208 §1, if a motion is filed for correction or interpretation of an arbitration award, the period for filing a petition to set aside the award begins to run from the date of service of the ruling on the motion. Therefore, if the motion is granted, the subject of the petition to set aside the award will be the corrected award, or an award that includes the interpretation as an integral part under Art. 1200 §2. Use of the term “award” to refer to a ruling on correction or interpretation of an arbitration award would therefore be confusing and incorrect.

Also published in Palestra, Issue 3-4/2012

1 See e.g. Civil Procedure Code Art. 1180 §3, 1181, 1195 §1 and 1198.

2 Introduced by the Act of 28 July 2005 Amending the Civil Procedure Code (Journal of Laws Dz.U. No. 178 item 1478).

3 E.g. T. Ereciński & K. Weitz, Sąd arbitrażowy (The Arbitration Court), Warsaw 2008, p. 344; A. Zielony, “Postępowanie rektyfikacyjne i remisyjne dotyczące wyroku sądu polubownego” (“Proceedings to Correct or Supplement an Arbitration Award”), Przegląd Sądowy 2007, vol. 3 p. 43; T. Ereciński, in T. Ereciński (ed.), Kodeks postępowania cywilnego. Komentarz. Część czwarta. Przepisy z zakresu międzynarodowego postępowania cywilnego. Część piąta. Sąd polubowny (arbitrażowy) (Civil Procedure Code: Commentary—Part Four: Provisions on International Civil Procedure; Part Five: Arbitration Court), Warsaw 2009, p. 720; Ł. Błaszczak & M. Ludwik, Sądownictwo polubowne (arbitraż) (Arbitration) Warsaw 2007, pp. 192 ff.

4 E.g. A. Zieliński, in A. Zieliński & K. Flaga-Gieruszyńska, Kodeks postępowania cywilnego. Komentarz (Civil Procedure Code: Commentary), Warsaw 2008, p. 1681; J. Bodio, T. Demendecki, A. Jakubecki, O. Marcewicz, P. Telenga & M.P. Wójcik, Kodeks postępowania cywilnego. Komentarz (Civil Procedure Code: Commentary), Oficyna 2008 (online edition).

5 Civil Procedure Art 708 §1: “An award by the arbitration court shall contain: ... 4) a resolution of the parties’ demands....”

6 Concerning the parties’ autonomy in establishing the rules of procedure, see J. Szpara & M. Łaszczuk, “Czy autonomia stron w ustalaniu reguł postępowania przed sądem polubownym jest ograniczona w czasie” (“Is the Parties’ Freedom to Establish the Rules of Procedure Before the Arbitration Court Limited in Time?”), in J. Okolski (ed.), Księga pamiątkowa 60-lecia Sądu Arbitrażowego przy Krajowej Izbie Gospodarczej w Warszawie (Essays in Honour of the 60th Anniversary of the Court of Arbitration at the Polish Chamber of Commerce), Warsaw 2010, pp. 280–292.

7 See e.g. M. Łaszczuk & J. Szpara, “Postępowania postarbitrażowe” (“Post-Arbitration Proceedings”), in A. Szumański (ed.), System prawa handlowego. Tom 8. Arbitraż Handlowy (System of Commercial Law—Vol. 8: Commercial Arbitration), Warsaw 2010, p. 574; contra, A. Zieliński, op. cit., p. 1681.