According to Article 1104 § 1 of the Code of Civil Procedure, parties to a specific legal relationship may agree in writing to submit any disputes arising from or potentially arising from that relationship concerning property rights to the jurisdiction of Polish courts. This is known as a prorogation agreement, which can only pertain to property rights disputes. Another condition is that these disputes must stem from a specific legal relationship. Such an agreement may cover both existing disputes and those that may arise in the future. Notably, the failure to precisely define the legal relationship or the inclusion of a prorogation agreement regarding a matter not involving property rights renders such an agreement null and void.
Parallel to this, EU law regulates the institution of jurisdiction agreements, which are purely procedural in nature. A jurisdiction agreement must be made in writing under penalty of nullity. In practice, a jurisdiction agreement often takes the form of a so-called jurisdiction clause, constituting one of the provisions of the contract that forms the basis of the legal relationship between the parties.
There are no restrictions on the nature of the jurisdiction adopted in such an agreement. This means that contractual jurisdiction can be optional relative to jurisdiction arising from statutory provisions or can be exclusive, provided it is not used to circumvent exclusive jurisdiction arising from statutory provisions. It is important to note that exclusive contractual jurisdiction cannot be presumed; its recognition requires an explicit provision in the agreement. Consequently, the fact that the parties chose Polish courts in their agreement, without indicating the courts of any other state, does not yet determine the exclusivity of the agreed contractual jurisdiction. Therefore, if one party to such an agreement files a lawsuit in a foreign court, any subsequent attempt to initiate a second proceeding in a Polish court, as designated in the agreement, will result in suspension of the latter proceeding.
It should be noted that entering into a jurisdiction agreement in matters that, according to Polish law, fall under the exclusive jurisdiction of foreign courts is inadmissible.
The provisions governing the possibility of entering into jurisdiction agreements in cases adjudicated in proceedings are set out in Article 25 of Regulation No. 1215/2012, which applies if the prorogated court is a court of an EU Member State and the matter is of a civil or commercial nature, regardless of whether the matter has any connection to the territory of the relevant Member State. The dispute may be current or future and must always arise from a legal relationship specified in the agreement. The regulation does not require that at least one party to the jurisdiction agreement resides in the territory of the EU.
According to Article 25 of Regulation No. 1215/2012, the choice of jurisdiction may occur by indicating the country alone or together with the designation of the specific court within that country. It is possible to designate one or several Member States; in such cases, unless otherwise stipulated in the agreement, the party has the option to choose from the options provided in the agreement. In practice, so-called unilateral jurisdiction agreements can be problematic, as they give one party a privileged position by offering a broader range of jurisdictional bases. The permissibility of such agreements is limited by the provisions protecting the weaker party; however, unilateral jurisdiction agreements can be freely concluded in transactions between businesses. Agreements that give the plaintiff complete freedom to choose the forum at their discretion are not permissible.
Regulation No. 1215/2012 adopts the concept that the jurisdiction of the courts of the Member State designated by the parties in the agreement is, in principle, exclusive unless the parties decide otherwise in the agreement. As mentioned above, jurisdiction agreements cannot be used to circumvent exclusive jurisdiction as per Article 24 of Regulation No. 1215/2012, nor can they conflict with regulations protecting weaker parties. Exclusive jurisdiction arising solely from an agreement will not be recognized by the court ex officio and does not preclude establishing jurisdiction by engaging in the dispute.
A negative condition for using contractual jurisdiction is the circumstance that the jurisdiction agreement is "materially invalid under the law of the Member State." This includes issues such as capacity to conclude the agreement or defects in the declaration of will. For such a determination, the court will refer to its substantive law, considering conflict of laws rules.
It is possible to conclude a jurisdiction agreement in writing or orally confirmed in writing. Regarding the written form, it is sufficient to exchange written declarations, and in the case of including a jurisdiction clause in general terms and conditions, the clause's validity depends on indicating in the agreement that the general terms and conditions form part of the agreement. For oral agreements confirmed in writing, the confirmation can come from either party to the agreement, including the party relying on the agreement. According to the regulation, any electronic communication that enables a durable record of the agreement is treated as equivalent to the written form (this includes concluding an agreement by ticking a box on a website, as per the CJEU judgment of 21.5.2015 in Case C-322/14 (Jaouad El Majdoub v. CarsOnTheWeb.Deutschland GmbH).
A jurisdiction agreement may also be concluded in a form consistent with the practice established between the parties. In international trade, a jurisdiction agreement may be concluded in a form consistent with a trade custom that the parties knew or should have known, and that is generally known and regularly observed by parties to agreements of that type in the particular trade sector.
Importantly, a jurisdiction agreement that forms part of the main contract is treated as independent from other provisions of the main contract. This means that the validity of the jurisdiction agreement cannot be challenged solely on the basis of the invalidity of the main contract. The court specified in the jurisdiction agreement has the competence to examine the validity of the main contract.
According to the Supreme Court Ruling of October 5, 2018, I CSK 611/17, the inclusion of a jurisdiction clause using the term "for any case" in a framework distribution agreement means that it covers all claims arising from both the framework distribution agreement and the associated sales agreement.
The regulation provides for the primacy of the jurisdiction of the court specified in the jurisdiction agreement over the obligation to respect the prior pendency of a case before a court of another Member State.
Article 1104 § 2 of the Code of Civil Procedure provides for the possibility of establishing the jurisdiction of a Polish court by the defendant entering into a dispute before that court. This institution is permissible only in cases where a prorogation agreement can be concluded, i.e., in matters concerning property rights. This can also occur if the parties had previously contractually excluded a particular matter from the jurisdiction of Polish courts.
The objection to the lack of national jurisdiction should be raised in the response to the claim or at the first hearing. If the objection to the lack of national jurisdiction is not raised, the jurisdiction of the Polish court to which the claim was brought is established. If the defendant initially raises a procedural objection other than the objection to the lack of national jurisdiction, it will not be permissible to raise the objection to the lack of national jurisdiction later, after the court has negatively decided on the previously raised procedural objection, as entering into the dispute on the merits has occurred.
In EU law, the possibility of establishing jurisdiction based on the defendant's conduct is provided for in Regulation No. 1215/2012. The condition for establishing the jurisdiction of a Member State's court, to which no provision of the regulation grants jurisdiction, is the defendant's entering into a dispute before such a court, unless the defendant does so to raise an objection to the lack of jurisdiction.
The concept of entering into a dispute should be interpreted more broadly than under national regulations, as the EU legislator does not require it to relate to the substance of the case. Jurisdiction is established by any action that does not aim to contest jurisdiction, even if the action does not relate to the merits of the claim.
In situations where jurisdiction can be established by the defendant entering into a dispute, the examination is conducted in two stages. The court lacking jurisdiction first suspends the proceedings to ascertain the circumstances required by the provision, and only then does it determine the lack of its jurisdiction.