As part of the Accademia CCIIP project, I had the pleasure of speaking about what alternative dispute resolution methods are in business and how to resolve a dispute without out of the court. This is the first video podcast of the thematic block “Certification, compliance and alternative dispute resolution” carried out by the Italian Chamber of Commerce and Industry in Poland.
I invite you to listen to it (recording in Polish).
The co-author of this text is Mrs. Marta Janowska, legal counsel, expert in AML, compliance and public procurement law.
On 1st January 2021, the new act which regulates public procurement came into force putting the previously binding norms in order, but also introduces novelties in this sector. One of these significant changes is providing explicitly in the act the facility of resolving disputes which arise from public procurement contracts out-of-court, which in the sphere of public law is not a very common practice, especially in light of public finance discipline.
In accordance with the provisions on public finance (art. 54a), a public finance sector entity may conclude a settlement on disputable civil law receivables as long as the settlement is more beneficial than the probable outcome of a court or arbitration proceedings. The assessment of the effects of the settlement must be made in writing, taking into account the circumstances of the case, in particular the legitimacy of the disputed claims, the possibility of satisfying such claims and the expected duration and costs of the court or arbitration proceedings. Settlements based on the above mentioned article of the act on public finance are not concluded in large numbers, which is indicated, among others, in the statistics conducted by the State Treasury Attorneys’ Office of the Republic of Poland.
Will the contracting authorities be willing to use this novelty which the act seems to popularise? New regulations in this area may cause it an interesting, cheaper and faster tool for contractors and contracting authorities to properly implement public procurement. They also give the parties a sense of greater control over the dispute and its resolution. Bearing in mind previous practice, mediation in cases which may be more complicated can take up to several months. However, it is also worth remembering that classic, well-run commercial mediation may end a dispute in a matter of weeks.
The new act provides that in a property case where a settlement is permissible, each party to the contract, in the event of a dispute which results from the procurement, may file an application for mediation or other amicable resolution of the dispute with the Arbitration Court at the State Treasury Attorneys’ Office of the Republic of Poland, a selected mediator, or a person who conducts another amicable resolution to the dispute. Indicating the Arbitration Court at the State Treasury Attorneys’ Office of the Republic of Poland as one of the arbitration courts should be regarded as an interesting solution and one that gives the contracting authority a greater sense of certainty. However, the provisions also provide for the appointment of another mediator or a person who conducts other “types” of amicable dispute resolution, which in turn is an important element from the contractor’s point of view. In this context, current discussions on professionalising the mediator profession and efforts to specialise in it seem to be important, as disputes which arose in the context of public procurement are usually complicated and complex issues which require the appropriate preparation and practice in resolving them.
The lawsuit or the contracting authority’s reply to the lawsuit includes information as to whether the parties have attempted mediation or other amicable resolution of the dispute, and if they have not, an explanation of the reasons why they have not done so, which is a solution analogous to civil procedure in this respect.
Unlike the Civil Procedure Code, however, if the lawsuit or the contracting authority’s response to the lawsuit does not contain the information listed above, in cases of significant value the court obligatorily refers the parties to mediation or other amicable resolution of the dispute to the Arbitration Court at the State Treasury Attorneys’ Office of the Republic of Poland, unless the parties have indicated another mediator or person who will conduct other amicable resolution of the dispute. This solution distinguishes mediation in public procurement law from mediation regulated by the Civil Procedure Code. The Civil Procedure Code only requires the parties to indicate in the first pleading whether they have attempted to resolve the dispute amicably, e.g. in mediation (but there is no obligation to do so). The November 2019 amendment to the Civil Procedure Code goes slightly further, introducing the institutions of a preparatory meeting to the trial, during which the parties, with the assistance of the court, are to seek an amicable conclusion of the dispute. The judge is even supposed (according to the content of the justification for these changes) to “mediate” between the parties. Thus, in principle, the direction of changes concerning mediation in public procurement law is consistent with the general trend in the trial, including the promotion and use of Alternative Dispute Resolution.
If the Arbitration Court at the State Treasury Attorneys’ Office of the Republic of Poland refuses to mediate or otherwise resolve the dispute amicably, the court refers the parties to mediation or other amicable resolution of the dispute:
The Arbitration Court at the State Treasury Attorneys’ Office of the Republic of Poland conducts mediation or another amicable resolution of a dispute pursuant to the provisions of the Act on the State Treasury Attorneys’ Office of the Republic of Poland of 15 December 2016. In matters not regulated for mediation or other amicable resolution of a dispute, the provisions of the Civil Procedure Code shall apply accordingly.
It is worth noting that the mediator and the person who conducts other amicable resolutions of the dispute may not be representatives in court in the proceeding concerning the dispute covered by mediation or other amicable resolution of the dispute, as well as may not participate in such court proceeding in any other manner.
Finally, it is important to emphasise that the settlement agreement must not result in a violation of the provisions regarding the permissibility of modifying the content of the agreement, which may pose some challenges for the mediating parties and the mediator. Practice will show how the parties to the dispute will cope with this rule of the act.
The introduction of mediation into public procurement should be regarded as the right direction which forces some changes in the organisational culture of disputes arising out of the award of public contracts. In addition to the introduction of solutions facilitating the exercise of the right to a court (reduction of the fixed fee from five to three times the appeal fee), this is another step toward streamlining these proceedings. For this solution to be accepted in the world of public procurement, however, a real and bottom-up change is needed in the organisational culture of public procurement proceedings and disputes in this area. What is needed is a mitigation of the principle of formalism in favour of a matter-of-fact conduct of public procurement proceedings and disputes in this area.
An interview with Paweł Rochowicz from “Rzeczpospolita” daily, published in the “Law every day” section on 24th December 2020
Ewelina Stobiecka (ES): It depends on the situation of the individual bank customer. In my practice I have met many people who do not have time for court disputes and they are good bank customers, they don’t want to change the bank and therefore want to settle. Unfortunately, the willingness of banks to make such settlements is still negligible.
ES: Unfortunately, this is how it looks so far. Perhaps, however, in response to the summons by the head of the Financial Supervision Authority (KNF) mentioned by the editor, as well as to these lost court cases and the unfavourable court line shaping up for banks, banks will soon develop a different position. But some may also stall, waiting until the cases in the second instance are resolved. For the time being, time has worked for them, because due to the pandemic, the processing of cases in the courts has lengthened considerably. However, some bank customers also file settlement notices, even before filing a lawsuit. This is not only a way of interrupting the limitation period, but also a kind of act of goodwill demonstrating that the client wants to reach an agreement with the bank. I know of several examples from practice where such notices were filed together with a specific settlement proposal, including a proposal by the client to convert the loan into PLN from the outset, which is exactly what the KNF suggests. However, there was no settlement, even though the client voluntarily wanted to pay a considerable amount on top of what he had already paid and what would have been billed if the loan had been granted on the same terms as a PLN loan. Many other people, for various reasons, would also like to get rid of the loan quickly, not only because of its amount, but also, for example, in order to be able to sell the property. It also happens that credit is jointly repaid by former spouses, who being already divorced do not want to be stuck in this embarrassing arrangement as co-borrowers.
ES: I think it would be quicker. You can file, as I mentioned, a request for a settlement attempt. Then the court sets a special hearing. If a settlement is reached, the court approves it and such settlement has the force of a judgment. The second possibility is to settle out of court, for example before a mediator. Many centres can be used here, including, as it were, the mediation centre at the Polish Financial Supervision Authority. Such a settlement can also be submitted to court for approval. My experience shows that courts approve such settlements very quickly. They usually do it willingly, if only to improve their statistics of settled cases. It is also possible not to involve the court at all and to reach an agreement by way of a simple out-of-court settlement.
ES: Much depends on how it is formulated. For example, it is possible to use the institution of a substantive legal so-called waiver of debt. This is the equivalent of a waiver of claims in court proceedings, when, by concluding a settlement, we waive all claims for the future. Then, the parties may stipulate in such a settlement referring to their loan agreement that the client owes the bank a specific amount, and the parameters of the debt repayment are subject to specific modifications. If such agreements were properly drafted, it would be very difficult to challenge them unless someone could prove extraordinary circumstances relating to defects in declarations of will, such as acting under the influence of threats, which would be a rather daunting task.
ES: I can imagine that if a bank takes a more individual approach to a client and, for example, through its settlement agent discusses the terms of such a settlement, it may gain the client’s trust, especially if the client wants to reach such a settlement. Of course, a different impression may be created if the bank acts in a clerical and schematic manner, simply sending out a ‘settlement’ annex to a credit agreement, printed in hundreds of thousands of identical copies for different customers. When a given bank has granted thousands of such loans, then, of course, an individual approach to each client is difficult, but it is possible because, after all, the borrowers themselves also “group” themselves around, for example, a single attorney who represents them in court or in various associations. In addition, banks can and should develop a multi-dimensional settlement decision matrix, grouping clients and their claims according to specific criteria, which will help to make a fairly individualized settlement proposal. One should take into account in such a matrix , among others, the date the loan was granted, which of course is linked to the exchange rate and the volume of flows so far, the term for which it was granted, the problem of spreads and the personal situation of the borrowers. This is also in the interest of the banks, insofar as they want these loans to be repaid as efficiently as possible and to rid their ‘portfolio’ of these difficult debts. In the current special situation of the crisis caused by the pandemic, it can be expected that more than one client may declare consumer bankruptcy, for example. Then, recovering money from them is much more difficult, and selling such debts is not easy either.
ES: Franc borrowers are indeed waiting a long time for judgments in initiated cases. In addition, even if the court gives a verdict and invalidates the old credit agreement, it does not calculate in detail the repayment of the loan – an agreement between the bank and the client is needed here anyway. It should also be noted that many law firms assisting Franc borrowers count on a bonus from the amount won and they also manage conducting a court case. These are not always honest firms/practitioners, which is also already being dealt with by the UOKiK. However, given the KNF’s clear suggestions, I think banks will be willing to settle. This, in turn, may lead to faster repayment of loans and other beneficial events, e.g. the property securing the client’s loan being released and freely traded. Settlement can also be beneficial for the bank in terms of its market position and reliable asset valuation. Especially in times of pandemics, when many borrowers, including other bank customers, lose their ability to repay their loans, the bank has to apply a higher risk weighting to such distressed loans. If we add the thousands of cases of franc borrowers to this, in the vast majority of which judgments invalidating credit agreements have already been handed down, this obviously threatens to destabilise the banking system. I believe that the whole story of the franc borrowers in Poland needs a ‘reset’, with both sides of the story being looked at from the point of view of profit and loss, taking all the circumstances into account. Looking at it from the perspective of such a profit and loss account, a settlement is often the most sensible solution (for both sides), as the Polish Financial Supervision Authority itself has already admitted.
A mediation clause is an important element of any contract.
I encourage the inclusion of mediation clause in agreements e.g.:
Any dispute which results from such an agreement or which are connected, can be settled amicably by the International Mediation Centre at the International Chambers of Commerce in Poland.
If the parties cannot reach a settlement through a mediation proceeding within 90 days from the filing of the motion for mediation or other term agreed in written form by the parties, each party can file a case to the appropriate court.
How commercial mediation looks like at the International Mediation Centre (IMC)?Tell us about your business issue before you go to court: contact the International Mediation Centre Coordinator e.stobiecka@mcm.org.pl
If the case is already in court, describe the current stage to us and we will help you to transfer it from court to the International Mediation Centre.
We will contact you and/or meet in order to discuss the issue and the strategy.
We will contact you and your adversary in order to present the opportunity to resolve your dispute through mediation.
The Mediation proceeding.
Our mediator will conduct the mediation proceeding in a professional and acceptable manner to acknowledge and respect the interests of all parties, offer the most suitable method and will finally conduct the appropriate sessions: common and/or individual. A mediator will conduct the proceeding in the most time and cost effective manner, meeting the needs and expectations of both parties.
Agreement
We will help you to approve the agreement reached through mediation in court so as the agreement will be a court binding decision and constitute the enforcement title.
The International Mediation Centre constitutes a platform for out-of-court dispute resolution, which is available for all entrepreneurs www.mcm.org.pl.
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