The choice of a court which will be appropriate for resolving disputes between the Polish and the UK entities is regulated by the provisions of the Regulation (EU) 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
The general rule in every jurisdiction is that a person should be sued in a court which is appropriate for his place of domicile. The old Roman maxim states that “Actor sequitur forum rei” which can be translated that the plaintiff must follow the forum of the thing in dispute. In the cross-border cooperation, it has been very difficult for a person from one country to sue his counter-party in the foreign court and according to the foreign law. The Regulation (EU) 1215/2012 of 12 December 2012 (which replaced Regulation 44/2001) brought a solution to this problem. It introduced some useful exceptions to the general rule. According to Article 7 of the Regulation 1215/2012, a person domiciled in England may be sued in Poland, for instance, in following cases:
- in matters relating to a contract between the parties – in the court appropriate for the place of performance of the contract (so if the contract was performed in Warsaw, the appropriate court for suing an English person will be the Warsaw court)
- in matters relating to tort, delict or quasi-delict - in the court appropriate for the place where the harmful event occurred or may occur (so if a car accident took place in Krakow, the appropriate court for suing an English driver will be the Krakow court).
Furthermore, where proceedings involving the same cause of action and between the same parties are brought in the Polish court, any UK court will be obliged to refuse the case. There should be only one verdict issued in a given case and this verdict should be honoured and enforced by the UK and Polish authorities.
Brexit is changing this situation significantly. On 24 January 2020, the representatives of the UK and the EU signed the Withdrawal Agreement which established the terms of the United Kingdom's orderly withdrawal from the EU. According to the Withdrawal Agreement, the provisions of the Regulation (EU) 1215/2012 will apply only if the statement of claim is filed with the court by the end of transition period, i.e. by 31 December 2020. The rules after 31 December 2020 are not known yet and depend on the negotiations between the European Union and the United Kingdom.
In this situation, it is recommended that in contracts with the British counter-parties where the performance will be envisaged after 31 December 2020, it is worth considering the arbitration clause. The United Kingdom is and will continue to be the party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958. The execution of such awards is much simpler.
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