Aleksander Godhe
King’s College London

Introduction

The Central and Eastern Europe (‘CEE’) region has one of the most valuable construction sectors in the world.^[1] It accounts for a considerable share of the GDP of its constituent economies, comfortably exceeding the European Union average of 5.4 per cent.^[2]

At the same time, the region has been relatively slow to adopt arbitration and alternative dispute resolution mechanisms to resolve construction disputes. On the available data, most cases are decided in litigation by the courts.^[3] This might come as a surprise given the broad international support for using arbitration as the final and binding method for resolving construction disputes, possibly alongside other dispute settlement mechanisms. After all, construction disputes have several endemic features that elevate arbitration into the preferred dispute resolution method.^[4] Construction disputes are common and numerous throughout the lifecycle of projects. There are many reasons for this contentious environment, ranging from force majeure events to the fact that every construction project is unique and its participants cannot foresee all its risks in advance. Evidence tends to be voluminous and factually complex, meaning that speed and efficiency are at a premium.^[5]

However, despite the general use of litigation, construction arbitration is certainly gaining momentum in the CEE region. This is evident from the widespread adoption of the UNCITRAL Model Law,^[6] the proliferation of robust arbitral institutions^[7] and other initiatives promoting arbitration in the region.^[8] CEE jurisdictions are also all members of the New York Convention 1958, ensuring the international enforceability of arbitral awards.^[9] From a construction perspective too, the CEE region is notable for its use of FIDIC forms, particularly in the context of EU-funded infrastructure projects. These contracts tend to contain modified Particular Conditions of Contract but typically retain the enclosed arbitration agreement, which forms part of a multi-tier dispute settlement mechanism involving a dispute board.^[10]

Against this background, the Court of Arbitration at the Polish Chamber of Commerce (‘PCC’), a leading Warsaw-based arbitral institution, adopted its latest arbitration rules that came into force on 1 January 2025 (‘PCC Rules’). Construction disputes are already its third-most represented sector, accounting for over 16 per cent of its impressive caseload of 183 new cases commenced in 2024. Twenty-eight per cent of PCC cases also had an international character.^[11]

This article comments on the new PCC Rules from the angle of construction dispute resolution. Where appropriate, the article will compare the revised PCC Rules with the ICC Arbitration Rules 2021 (‘ICC Rules’), the LCIA Arbitration Rules 2020 (‘LCIA Rules’), the SIAC Arbitration Rules 2025 (‘SIAC Rules’) and others.^[12]

Tribunal appointment and composition

Unlike many arbitration rules, which provide for a dispute to be heard by a sole arbitrator by default,^[13] the PCC Rules provide, by default, for a panel of three, with a sole arbitrator applying where the amount in dispute does not exceed PLN100,000,^[14] subject to party agreement to the contrary.^[15] In three-arbitrator cases, each party appoints one arbitrator and the arbitrators together appoint the president, with the PCC Arbitral Council stepping in if appointments are not made on time. In international cases, the Arbitral Council takes into account the arbitrators’ nationality, place of residence and relationships with the parties’ countries of origin when making an appointment, but the parties may agree to other selection criteria.^[16]

In its 2025 Rules, the PCC also removed the requirement for its Arbitral Council to appoint arbitrators only from its recommended arbitrators list,^[17] bringing its practices in line with those of other leading arbitral institutions. This development is critical to construction arbitrations, which are often technically complex and require arbitrators with niche industry expertise.^[18]

Arbitrator challenges

Arbitrators may be challenged and removed by the Arbitral Council under the PCC Rules at the request of a party on grounds of the existence of circumstances giving rise to reasonable doubts concerning arbitrators’ impartiality or independence or the absence of party-agreed qualifications.^[19] However, the Rules prevent parties from bringing such challenges opportunistically. If a party took part in the appointment of the arbitrator that it now seeks to challenge, the challenge can be brought only in relation to reasons of which the party became aware after the appointment had been made.^[20] Further, the challenge may only be brought within 14 days of the party becoming aware of the grounds for removal.^[21]

The arbitrators and the other party may provide comments on the challenge within 14 days of the date on which a copy of the challenge was delivered to them.^[22] The challenge also does not affect the course of proceedings unless the tribunal decides otherwise.^[23]

The 14-day deadline under the PCC Rules from the date that the party becomes aware of the grounds for removal is shorter than the 30-day deadline under the ICC Rules,^[24] slightly shorter than the 15 days under the SIAC Rules^[25] and identical to the deadline under the LCIA Rules.^[26] A failure to comply with the deadlines for raising challenges should be deemed as a waiver of the objection. As a consequence, an objecting party may be unable to challenge the arbitral award on the same grounds.^[27]

Emergency arbitration

Emergency arbitration has become an increasingly common feature of the modern practice of international construction arbitration.^[28] Emergency arbitration is available under many leading arbitration rules.^[29] It is particularly valuable in bond call scenarios and for preserving the status quo, evidence or ordering security and mandatory injunctions.

The 2025 amendment to the PCC Rules introduced the emergency arbitration mechanism for the first time. Before the tribunal constitution, a PCC emergency arbitrator may order interim measures to secure a claim or preserve evidence. The emergency arbitrator must be appointed within three business days of the application. The application may be made before the request for arbitration is filed and the emergency arbitrator must issue the order within 21 days. Emergency orders are non-binding on the later tribunal, lapse automatically if arbitration proceedings are not commenced within 30 days, and the emergency arbitrator’s mandate expires upon constitution of the main tribunal.^[30]

A distinctive feature of the PCC mechanism is its clear interaction with the main arbitration: the order on interim measures to secure a claim or preserve evidence lapses automatically if a main arbitration is not commenced within 30 days of the order,^[31] providing a degree of procedural discipline that may suit construction disputes where emergency measures are often sought in the context of an imminent main dispute.

The PCC emergency arbitration procedure also lasts longer than at many other institutions. SIAC is the fastest, with an appointment within 24 hours, followed by ICC (two days), and PCC and LCIA (three business days and three days, respectively). The ICC’s 15-day order deadline is more compressed than the PCC’s 21-day period. Nonetheless, while the emergency arbitration procedures may, in principle, be faster when conducted at other institutions, the deadlines therein tend to be subject to extensions. However, practitioners should note that across all institutions, enforceability of emergency arbitrator orders can be uncertain because they may fall outside the New York Convention’s scope, which covers awards, and their interaction with multi-tier clauses in particular can raise jurisdictional issues.^[32]

Early determination

The PCC Rules contain a new early determination procedure, also referred to as ‘summary disposal’. Section 29(1) provides:

‘A party may apply for early determination of each of the claims made by the parties, or early determination of a defence or an issue in dispute if:

1) its claim, defence or position on the issue in dispute is manifestly meritorious, or

2) a claim, defence or position of the other party on the issue in dispute is manifestly without merit.’

The provision can be contrasted with the LCIA Rules which provide in Article 22.1(viii) the power of the tribunal:

‘[T]o determine that any claim, defence, counterclaim, cross-claim, defence to counterclaim or defence to cross-claim is manifestly outside the jurisdiction of the Arbitral Tribunal, or is inadmissible or manifestly without merit; and where appropriate to issue an order or award to that effect (an “Early Determination”).’

The PCC Rules are hence innovative in permitting early determination not only in circumstances where a claim, defence or position is unmeritorious, as is the typical wording appearing in arbitration rules,^[33] but also where it is meritorious.^[34] This, in turn, allows the tribunal, for example, to refuse to hold a hearing even despite an application from a party.^[35] Reading the procedure consistently with the remainder of the PCC Rules, the tribunal must also be able to issue an order or an award on the issue subject to the early determination procedure, even though this power is not expressly mentioned in section 29 itself.

An early determination procedure is important for construction disputes which are numerous in number and require prompt resolution.^[36] From a practical perspective, tribunals must maintain due process and give the parties a reasonable opportunity to put their case, even despite adopting an early determination procedure. This is precisely the reason why, for example, the English Arbitration Act 1996, following the 2025 amendments, expressly empowers tribunals to dispose of claims and defences in an award on a summary basis.^[37]

Consolidation and joinders

Construction disputes often involve multiple parties, including the employer, the main contractor and a range of subcontractors. These disputes may relate to the same subject-matter, the same contract or the same project.^[38] For this reason, clear procedures for consolidating arbitrations and for joinders of third parties are essential to the attractiveness of arbitration rules.

The PCC Rules contain robust consolidation procedures. Following an application by a party, a tribunal may consolidate two or more proceedings as long as they are: between the same parties; the tribunal is the same; and the dispute is brought under identical arbitration agreements or the parties’ claims are related.^[39] Consolidation can also be ordered if the parties are not identical, if the other conditions are satisfied and the parties consent.^[40]

Separately, parties may also consent to the joinder of a third party in the arbitration as long as, pursuant to the arbitration agreement: the third party can assert a claim against a party to the proceedings; or a party to the proceedings can assert a claim against the third party.^[41]

A significant difference between the consolidation procedures under the PCC Rules is the tribunal’s role in determining the two issues. Under many arbitration rules, consolidations can be determined by the institution itself in the first place.^[42] Institutions may also play a role in determining joinder applications.^[43] In contrast, the PCC procedure is more streamlined, allowing the tribunal to decide on such applications directly.

Third-party funding disclosures

Under the revised PCC Rules, parties must now disclose the identity of a third-party funder in the request for arbitration and answer.^[44] If either party enters into such an agreement in the course of the arbitration, the arbitral tribunal must be notified as well.^[45] This is an innovative provision in line with the most recent arbitration rules, such as the SIAC Rules^[46] or the 2024 Stockholm Chamber of Commerce Arbitration Institute policy.^[47]

However, the PCC Rules are more relaxed when it comes to the consequences of a party having third-party funding arrangements in place. The Rules do not explicitly specify the tribunals’ powers in relation to third-party funding and their primary aim appears to be transparency. SIAC rules, in contrast, provide that the tribunal may request additional disclosures regarding the funding, such as presumably disclosures on the funding amounts and terms of the funding. SIAC tribunals may also give weight to third-party funding in apportioning costs.^[48]

Deadlines for rendering an award

One of the most significant new provisions in the PCC Rules relates to the deadline for rendering the arbitral award. Section 41(3) provides:

‘The award shall be rendered within six months from the date on which the file was transmitted to the Arbitral Tribunal, but no later than two months from the last day of the hearing or the date of the last written submission by a party.’

The provision should be read consistently with section 11(3), which states that the PCC Director General may, for good cause, extend the time limits provided in the PCC Rules.

This is a highly attractive provision of the PCC Rules. It means that the default duration of a PCC arbitration is the same as an expedited arbitration under many other arbitration rules, such as the SIAC^[49] and ICC Rules.^[50] It also explains why the PCC Rules do not contain a standalone expedited arbitration procedure; the default procedure is already incredibly efficient. Given that parties in construction arbitrations typically need a quick and binding resolution of their dispute, the expediency of PCC arbitrations is a considerable advantage. This is particularly the case when the said expediency is contrasted with the slow pace of construction litigation in many jurisdictions.^[51]

Light-touch award scrutiny

The revised PCC Rules provide that a draft of the arbitral award shall be submitted to the PCC Arbitral Council. The Council may then submit comments to the tribunal on non-substantive aspects of the award.^[52] This is an impressive procedure, particularly given the short timelines of a PCC arbitration. It follows best practices adopted by some institutions such as the Dubai International Arbitration Centre (‘DIAC’) Arbitration Rules.^[53] Such a light-touch process may help tribunals avoid non-substantive obvious errors in the award and also help the institution fix the tribunals’ final fees and expenses.

Appeals on points of law under leges arbitri?

Finally, the PCC Rules do not explicitly state that the award is final and binding on the parties, although the model arbitration clause does state that the dispute shall be ‘finally decided’ by a PCC arbitral tribunal. Nonetheless, the absence of a clear statement on the final and binding effect of awards in the PCC Rules may lead to the unintended result that the opt-out appeal mechanisms found in some leges arbitri may apply. For example, if the seat is in England, Wales or Northern Ireland, it may mean that section 69 of the Arbitration Act 1996, which allows appeals on points of English law, has not been excluded.^[54] This interpretation is particularly significant since English courts have been clear that the default position under the Act is that section 69 does apply and that parties must opt out of it explicitly. The inclusion of wording in the arbitration clause that a dispute shall be ‘finally settled’ in arbitration did not prevent that conclusion.^[55] Many arbitration rules hence contain provisions similar to the SIAC Rules which provide in Rule 51.7:

‘Unless otherwise agreed by the parties, and insofar as not prohibited by any applicable law, every award shall be final and binding between the parties in respect of the claims, counterclaims, cross-claims, and set-offs determined and, where appropriate, the issues of fact and law that it determines in order to rule on the parties’ claims, counterclaims, crossclaims, and set-offs.’^[56]

To avoid any difficult arguments at the post-award stage, the parties may be advised to expressly exclude any appeal or review rights that may exist under the applicable arbitration laws. However, the issue is likely to be moot as the number of arbitration laws providing for appeals is small and limited to select common law jurisdictions. Section 69 of the Arbitration Act 1996 also only applies to appeals on points of English law.

Other recent improvements

The revised PCC Rules also made other changes to the arbitration procedure that they provide for, simplifying and streamlining the process. This includes:

• permitting tribunals to allow party submissions to be made electronically only;^[57]
• stating that counterclaims must be filed in the response to the request for arbitration or later, if the tribunal agrees;^[58]
• no longer providing for a mandatory hearing. Instead, the PCC Rules envisage a hearing only following a party request or a tribunal decision;^[59]
• providing for a case management conference within 14 days of the transmission of the file. In the absence of a case management conference, Procedural Order No 1 must be issued within 21 days of the transmission of the file;^[60] and
• providing that tribunals may appoint tribunal-appointed experts if the parties are consulted.^[61]

As further evidence for the PCC’s internationalisation, the PCC Rules permit the arbitration to be conducted in English or another language as long as the parties provide for it in their arbitration agreement or, in the absence of such an agreement, the tribunal determines that a specific language shall be the language of proceedings.^[62] Separately, the tribunal has the power to order specific activities to be performed in a language other than the language of the proceedings.^[63] Such a procedure makes a PCC arbitration attractive from the standpoint of international disputes which may involve a range of relevant languages.

Conclusions

The CEE region is home to several impressive construction projects with an international or even global reach. This includes the construction of the first nuclear power plant in Poland^[64] or the Rail Baltica connecting the Baltic States with the European transport networks.^[65] Once the war in Ukraine ends, the country will be subject to one of the largest reconstruction projects in modern history – a process that is already being drawn up.^[66] Since regional and international parties are poised to play a significant role in these ventures, the need for dispute resolution mechanisms other than litigation is likely to increase. In an environment where parties likely have a strong preference for resolving disputes in arbitration but wish to rely on institutional support that is more local and cost-effective, the inclusion of a PCC model arbitration clause is an attractive option, even more so with its revised Arbitration Rules that are in line with international best practices and offer advantages to parties in the construction sector.

The PCC Rules have clearly set efficiency as their primary objective. This is evident from the short timelines for rendering awards, the concentration of powers – such as in relation to consolidation and joinders – in the hands of tribunals or the innovative provisions on light-touch award scrutiny, emergency arbitration and early determination. Finally, considering its cost calculator,^[67] a PCC arbitration offers a highly cost-effective arbitration at a recognised institution.

Dr Aleksander Godhe FCIArb is the Michael Brown Lecturer (Assistant Professor) at the Centre of Construction Law & Dispute Resolution, King’s College London. He is also a Visiting Fellow at the Stockholm Centre for Commercial Law at Stockholm University and an independent consultant. He can be contacted at aleksander.godhe@kcl.ac.uk.