Records in Documentary Form

First and foremost, it often happens that the records for Ultima Ratio are agreed upon in documentary form rather than the “usual” written form. This occurs when the agreement containing such a record is concluded through the exchange of email correspondence, by reference to general sales regulations, or even through SMSs.

Such a practice is, of course, lawful in contracts between businesses.

Nevertheless, Article 1213 §1 of the Code of Civil Procedure states that an application for the enforcement of an arbitral award must also include... the original arbitration clause or an officially certified copy thereof.

Legal Representatives in Disarray

As a result, the Courts of Appeal often call upon legal representatives to rectify formal deficiencies in applications by presenting the original or officially certified copy of the arbitration clause. Such requests put representatives in a state of consternation. The documentary form of a clause is most often a computer file. Therefore, presenting its “original” seems difficult, if not impossible...

Attach a USB Drive

However, the Professor believes that this is not the case! He directly suggests that in such situations, an electronic data carrier (e.g., USB) with the “original” arbitration clause in documentary form should also be included with the application. He further advises that the clause itself should be printed and certified as a true copy. Alternatively, it is also possible for the document in documentary form to be notarised. Naturally, the notary's certification must be attached to the application.

Let's turn over to the Professor who will discuss this issue in more detail (watching the material will take you about 8 minutes).

Enforcement Title Immediately

Regardless of the above, we once again emphasize that the application for the enforcement order should include a demand for the delivery of the enforcement title. In this instance, it is the order to impose the enforcement clause permanently attached to the copy of the award.

While this may seem obvious, in the amendment to the Code of Civil Procedure in 2011, the arbitration award ceased to be called an “enforcement title,” resulting in the secretariats of appellate courts sometimes not stitching the orders of enforcement clauses with the awards in accordance with §221 paragraph 1 of the Rules of Procedure of Common Courts, awaiting a separate creditor’s request in this regard. However, if the appropriate demand is already included in the application for the enforcement clause, there is a greater chance that we will receive the enforcement title immediately.

Order Effective Upon Issuance

Finally, one must remember that, according to Article 360 in connection with Article 13 §2 of the Code of Civil Procedure, orders become effective upon announcement (or signing). Hence, they are subject to execution without waiting for them to become final. It is best to point this out in the content of the application. A good approach is to include a demand for the immediate delivery of the enforcement title upon order issuance. The debtor, who has received the application and who was a party to the enforcement proceedings, can appeal to a different composition of the Court of Appeal to suspend its enforceability (Article 396 of the Code of Civil Procedure in connection with Article 13 §2 of the Code of Civil Procedure).

Avoid Delays

Following the above tips minimizes the risk that the application for the enforcement clause for the Ultima Ratio award will have formal deficiencies. This way, you will avoid delays and receive the enforcement title at the earliest possible opportunity.

The entire conversation with Prof. Jacek Gołaczyński, which we will return to in subsequent entries of our Academy, can be found HERE.