Decision of the Supreme Court No III CZP 29/09 of 4 June 2009

Rationes Decidendi:

It is permissible for the respondent to withdraw a plea of the [non-] existence of an arbitration agreement in the course of appeal proceedings against a decision of the court of first instance which ruled on the plea.
In relation to the withdrawal of a plea of the [non-]existence of an arbitration agreement, the provisions of the Code of Civil Procedure do not provide for the requirement of a judicial review, as is the case with the withdrawal of an action (Article 203 § 4 k.p.c. [POL]). The respondent’s procedural act consisting of the withdrawal of a plea of the [non-]existence of an arbitration agreement is therefore assessed by the court in the same way as it would consider any other procedural act by a party to the proceedings.
A plea of the existence of an arbitration agreement may be withdrawn by the respondent only to until such time as this act would result in legal consequences associated with such an act by law. Such a consequence is the dismissal of the action by a court if the plea is justified, or the dismissal of the plea if it is found to be unfounded or late by a court. The moment at which the decision to dismiss or reject the dismissal of an action becomes final is the crucial factor, not the moment when such a decision is issued.