Nadużycie prawa podmiotowego jako podstawa rozciągnięcia zapisu na sąd polubowny na podmioty powiązane kapitałowo
Abuse of right as the basis for the extension of an arbitration agreement to associated companies

Summary/Abstract: The purpose of this paper it to propose a new approach to the problem of the extension of arbitration clause to non-signatory members of the group of companies, namely an approach mainly from the angle of the corporate law instead of the — usually adopted — perspective of the arbitration law. The problem determined in the heading lies on the crossing of both areas of law and belongs to each of them. Under Polish law, Art. 5 of the Civil Code determines the scope to which corrections of the effects of application of the letter of law are possible for reasons of fairness and good faith (more specifically, the social and economic purpose of the given right and the principles of community coexistence). It is usually assumed that the strict interpretation of Art. 5 does not permit any other use than as a defense from the other party’s claims and that, consequently, it cannot be used as the basis for any extension of the arbitration clause to a non-signatory respondent. The author of this paper attempts to demonstrate how the development of proper corrective rules in the field of corporate law (a more liberal interpretation of Art. 5 or the working out of a separate test for the abuse of corporate form) may, in exceptional cases, serve as the basis for the extension of an arbitration clause to the formally unconcerned members of a group of companies.

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