Zakres swobody miarkowania kar umownych przez sądy arbitrażowe w świetle klauzuli porządku publicznego – glosa do wyroku Sądu Apelacyjnego w Szczecinie z 10.10.2019 r. (I AGA 35/19)

Abstrakt

The author explores the scope of discretion from which arbitrators benefit in mitigation of liquidated damages – among other angles, from the perspective of the possible functions that liquidated damages may serve. Referring to the distinction between “positive” and “intuitive” legal norms posited by the Polish legal philosopher Leon Petrażycki, she classifies mitigation of liquidated damages in the latter category, with the arbitrators’ discretion in this regard deriving from interpretation of general legal norms (as opposed to express provisions of substantive law).

The author concurs with the court’s position that review of the exercise of this discretion by an arbitral tribunal may lead to overturning of the arbitral award only in the event that the tribunal is found to have abused its powers. One of the forms which such abuse may assume, the court continued in the ruling commented upon by the author, is comprised in lack of coherence of the reasoning adduced for the arbitral award.

In a strictly axiological sense, it is not for the state courts to draw up some catalogue of criteria and values and to rank them in any order of importance. Intervening to amend an arbitral award running contrary to the basic principles of the legal order would be justified in very rare cases only. The compensatory nature of liability for damages must not apply – certainly not in some absolute sense – to assessment of liquidated damages for purposes of mitigation.