Inability to Bear Arbitration Costs as a Basis for Court's Refusal to Enforce Arbitration Agreement. Commentary on the Supreme Court Decision of 19 January 2024, case II CSKP 897/22

Abstrakt

The paper analyses the groundbreaking decision issued by the Polish Supreme Court on 19 January 2024, case II CSKP 897/22, addressing the interplay between the enforceability of arbitration agreements and a party's financial inability to bear arbitration costs. The decision underscores the paramount importance of the right of access to justice, prioritizing it over contractual autonomy and the sanctity of agreements when arbitration becomes financially inaccessible. By invoking the principle of proportionality, the Court balanced the defendant's legitimate expectations of arbitration as the exclusive dispute resolution forum with the plaintiff's fundamental right to legal remedies, ultimately affirming that arbitration agreements must remain practically viable to be enforceable. While the judgment aligns with European judicial trends, such as those reflected in the ECHR and the EU Charter, the author argues it could have demanded more rigorous proof of plaintiffs' efforts to secure alternative funding, such as third-party financing.