Supreme Court (Sąd Najwyższy), Docket IV CSK 200/06 as of 22 February 2007

Rationes Decidendi:

If any proceedings in which Article 1162, Section 216 of the Code of Civil Procedure should be applied were initiated after the effective date of the amendment act, then pursuant to Article 217 [act of July 28, 2005 amending the act – Code of Civil Procedure – own insertion] it is acceptable, and the complex nature of the submission to arbitration clause, which combines the qualities of a material law and procedural contract, does not form any obstacle to apply the inter-temporal provision included in the procedural act.
The constitutional order of the priority of legal acts (Article 91, Section 118 of the Constitution) calls for a review of formal requirements mainly under the New York Convention, which names in Article II, Sections 1 and 219 the requirement of the written form in the wider meaning, also including the exchange of letters and telegrams.
An arbitration clause is subject to the choice left to a professional – the respondent company, void of any indication as to the rules governing decisions of the American Arbitration Association, imposing foreign laws on a client where they significantly differ from the European legal framework, additional difficulties in claim resolution connected with the different legal system, distance and costs, as well as notorious difficulties in receiving an American entry visa – which all creates an environment that must be regarded as an unfair clause within the meaning of Directive 93/13 EEC. The arbitration clause imposed on the respondent party constitutes an unfair contractual provision and creates an environment that is in conflict with Article 6, Section 220 of the Directive and justifies withdrawal from the obligatory submission to arbitration.
The interpretation of Article II, Sections 1 and 2 [Convention on the Recognition and Enforcement of Foreign Arbitral Awards made on June 10, 1958 in New York – own insertion] prevents us from assuming that, without setting aside the meaning of the regulation, the act of making a contract implicitly satisfies the requirement of the regular written form. There is also no reason to recognize the contents displayed on a website as being akin to the written form, especially bearing in mind that the provisions of the Convention ignore detailed issues with regard to the time, place and manner of receipt of a template available online.
Pursuant to the provisions therein [Article 1162, Section 2 of the Code of Civil Procedure – own insertion], the written form of submission to arbitration is also satisfied if the clause was included in letters and representations exchanged between the parties through means of remote communication allowing a record to be made of the contents thereof, or if the written contract incorporates a separate document containing a provision on submitting disputes to arbitration. Visiting a website with a template contract addressed to an unspecified forum of readers and confirming online one’s will to enter into the contract does not form a representation allowing a record to be made of the contents thereof. In particular, computer “confirmation” itself – as opposed to the standard electronic signature with the basic, i.e. minimal degree of credibility – does not form the basis for identifying or reproducing the contents of such representation. The requirement would be satisfied, however, if the representation were sent by electronic mail (an e-mail), which allows for identification of the sender.