The proposed Code of Civil Procedure reform is moving closer to submission to the President’s Office. A Sejm committee has approved the Senate’s amendments to the civil procedure bill. Everything indicates that commercial proceedings will be restored.
Separate commercial proceedings are not new to Polish law. The former rules applied until 3 May 2012. Seven years after their repeal, the legislature is returning to a separate procedure for businesses. The proposed amendment draws on the old commercial procedure but does not replicate it. The legislature has chosen to introduce several mechanisms previously unknown in Polish law.
The reform and the categories of commercial cases
The amendment will not reorganise courts or create new specialist commercial divisions. Courts currently deciding business disputes will continue to do so, but under a different procedure. The categories of commercial cases they hear will change slightly. As a rule, cases are commercial where both parties are businesses, the criterion based on the parties’ status. Commercial divisions also hear disputes concerning subject matters specified by statute, regardless of whether businesses are involved, the subject-matter criterion.
New categories of commercial cases
The bill’s authors consider that certain disputes most often arise between businesses. Commercial courts or divisions already handle them, and their judges have developed expertise. The list of commercial cases is therefore being extended to disputes arising from construction contracts and other contracts in the construction process. For the same reason, disputes under leasing agreements are also included. This should improve the speed and quality of proceedings.
Commercial cases will also include claims against persons liable for a business’s debts. Liability may be subsidiary or joint and several, and may arise by contract or statute. The bill’s authors note that these debts effectively arise from business activity, making the commercial court best placed to decide such disputes.
Cases excluded from commercial proceedings after the reform
The list excludes proceedings to grant or remove enforceability from an enforcement title concerning a claim potentially arising from a commercial matter that has not been adjudicated by a court. The authors consider that civil courts already specialise in such cases, so there is no need to burden commercial courts with them. They also wish to avoid uncertainty and potential disputes over commercial jurisdiction. Similar reasoning supports excluding recognition of foreign court judgments or decisions of foreign authorities from commercial proceedings.
The bill also expressly excludes two categories of dispute. The first is division of assets between former partners in a Polish civil-law partnership. The second concerns receivables that did not originate in commercial dealings but were acquired by businesses. The first exclusion reflects civil courts’ expertise in asset-division cases. For the second, the authors consider that commercial courts should not hear disputes about receivables originating outside commercial dealings.
Application to disapply commercial procedure rules
A new mechanism, absent from the former commercial procedure, allows a party to request that a case be heard without applying commercial procedure rules. A party that is not a business, or is an individual sole trader, may apply within one week of receiving written guidance. Commercial proceedings are thus the default, but smaller-scale operators can avoid them.
Transfer to ordinary proceedings
The bill seeks to eliminate transfers between commercial and civil divisions while cases are in progress. It therefore gives courts a limited period to transfer a case. If a commercial court misses it, it must hear the non-commercial case itself without applying commercial procedure rules. Conversely, a civil court will hear a case without those rules even if it is commercial in nature.
The amendment thus introduces a separate procedure. Given the breadth of the changes, it is impossible to cover every aspect in one article. We will therefore discuss further features of commercial proceedings in the next part.
We also invite you to read our article on changes to service of procedural documents introduced by the same amendment.
