INTRODUCTION

In accordance with art. 189 of the Polish Civil Procedure Code, a plaintiff may request that the court rules on existence – or, as the case may be, non-existence – of a legal relationship or a right, provided that plaintiff has a legal interest. Polish legal doctrine as well as jurisprudence adopt a decidedly restrictive take on the concept of legal interest in such declaratory relief, with the effect that, in practice, real-terms recourse to this legal mechanism is significantly impeded. Admittedly, this restrictive approach results from lack of a precise definition in the statutory provision, but its practical manifestation is that legal interest is often regarded in an excessively objectified way, as an abstract divorced from the individual interests of the specific plaintiff. This has led to elaboration of the subsidiarity principle and to a tendency to define the legal interest in a narrow way, as juxtaposed with non-legal interest. I propose that such restrictive thinking should not be applied in an arbitration setting, first and foremost due to the ratio legis underlying the legal norm. Apart from that, with due heed for the remarks by K. Weitz concerning the procedural character of the concept of legal interest, art. 189 of the Civil Procedure Code shall not apply to arbitration proceedings on account of the second sentence of art. 184 § 2 of the of the Civil Procedure Code. Now, the question of legal interest came before the  Arbitration Court of the National Chamber of Commerce in Warsaw in case SA 193/05. (...)

 

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