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The dismissal of a lawsuit due to the existence of an arbitration clause is not possible if the defendant, prior to raising the claim of arbitration court clause, engaged in a dispute as to the merit of a case (art. 1165 § 1 of the Civil Procedure Code, CPC). However, in a case conducted by adwokat Jan Ciećwierz on behalf of the plaintiff, the defendant only raised the claim of an arbitration court clause nearly 34 months from the date of filing suit.

Until that time, he already presented a court formal charges as well as arguments on merit concerning both the scope of binding settlement concluded between the parties to these proceedings as well as improprieties pertaining to the completion of a promissory note.

“His actions were aimed at demonstrating the lack of basis for the lawsuit and could therefore not be strictly deemed to constitute statements addressing formal procedural issues,” explains adwokat Ciećwierz.

Nevertheless, a first instance court rejected the lawsuit by arguing that the defendant raised the claim of an arbitration court clause. A Court of Appeal amended this decision. In denying dismissal of the lawsuit, it referred to the content of a provision introduced in the civil procedure in 2005. It stipulates that, in the event of filing a case in court concerning a dispute covered by an arbitration clause, such court rejects the lawsuit or motion to initiate non-litigious procedure, if the defendant or participant to non-litigious procedure raised the charge of arbitration court clause prior to engaging in a dispute on case merit (art. 1165 § 1 CPC).

Interestingly, the defendant engaged in the dispute even before official service of the lawsuit, but, as the court determined, he was already familiar with its substance. The Court of Appeal nevertheless stated that no CPC provision prevents a defendant from engaging in a dispute in such a situation and submitting evidence.

This court also clarified when “engagement in a dispute as to the merit of a case” takes place. This occurs at the moment of filing charges aimed at preventing the plaintiff from achieving a positive outcome to proceedings when a defendant starts to speak out on issues concerning the plaintiff's demands.