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Journal of Business Law 01/2021

ISBN: 0137-5490
Pages: 56
Publication date: 2020
Place publication: Warszawa
Binding: paperback
Format: A4
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DOI: 10.33226/0137-5490.2021.1.1

Despite numerous amendments, geology and mining legislation does not meet the current needs. This assessment refers to almost all of the issues governed by the Geological and Mining Act of 2011, as well as some solutions outside of it. First of all, it regards the scope of this Act and the unreasonable rigors of many of its solutions, that cause its evasion as well as discourage from the investment in the discussed area. Polish system of environmental impact assessment of the projects in the field of geology and mining is more rigorous than the requirements set by the European Union, while on the other hand it does not meet all of its requirements. Five years ago a complaint was submitted to the Polish Constitutional Tribunal regarding the conformity of Art. 41 of GMA that defines the concept of a party in the concession proceedings with the Constitution. Also the requirements for the licensing of hydrocarbons are excessively complicated. These problems (and many others) are well known, both to those concerned by the provisions discussed above and to the public authorities responsible for their application. Still, there is no information about initiatives aimed for amending the law in this regard. The aim of the article is to signal the key shortcomings of the aforementioned legal problems and the urgent need for their radical change.

Keywords: Geological and Mining Act; need of amendments
DOI: 10.33226/0137-5490.2021.1.2
JEL: K23

The purpose of the article is to discuss the principles of satisfying the debt of a borrower who has made an early loan repayment after the declaration of bankruptcy of the SKOK. The bankruptcy declaration made by a bank or by a savings and credit union does not affect the right of a consumer borrower to repay a credit earlier under the Article 48 and 49 ust. 1 of the Consumer Credit Act. If the loan has been granted before the bankruptcy was declared, the consumer credit agreement remains in force. The borrower has the obligation to repay the instalments, unless he repay a credit earlier. The early repayment means that the agreement ends and the a borrower has a claim against the bankruptcy estate for the operational costs under the Article 49 ust. 1 of the Consumer Credit Act. The claim arises after the commencement of the bankruptcy as a result of an elimination of the legal basis for the obligation (Article 410 § 2 of the Civil Code). This claim is generally satisfied wholly by a bankruptcy receiver from the bankruptcy estate without the need to present it in the bankruptcy proceedings.

Keywords: bankruptcy declaration; bank; savings and credit union; consumer; early repayment
DOI: 10.33226/0137-5490.2021.1.3
JEL: K15

By the Act of 4 July 2019 amending the Act - Code of Civil Procedure and certain other acts (Journal of Laws of 2019, item 1469), the legislator added Section IIa entitled Proceedings in commercial matters (articles 4581–45813 of the Code of Civil Procedure). This proceeding is another separate proceeding which may be conducted in a civil process in commercial matters listed in art. 4582 CCP. The legislator included on proceedings in commercial matters art. 4589 of the Code of Civil Procedure, which relates to evidence contracts. The regulation of evidence contracts can cause many doubts in the practice of applying the law regarding the legal nature of these contracts up to the legal effects of their introduction. In favor of the material and legal nature of these contracts, it is necessary to solve, under substantive law, problems related to defects of intention, interpretation of these contracts or the legal effects of these contracts for legal successors.

It may also be problematic to examine these contracts (whether only on demurrer or ex officio) and the legal consequences of their defects, as well as the question of the time when the parties may rely on such a contract. The aim of the authors is to present all substantive and procedural aspects of the existence of the institution of evidence contract, as well as to clarify doubts that may arise in the context of the institution in the practice of applying the law.

Keywords: civil proceedings; evidence; commercial issues; evidence proceedings; the dispositive principle
DOI: 10.33226/0137-5490.2021.1.4
JEL: K21

Competition law has established a distinction between agreements restricting competition 'by object' and 'by effect'. This division has a significant practical importance as in case of anticompetitive conduct consistent with these classified as a restriction 'by object' the competition authority's obligations to support its findings with the necessary evidence are much lowered — the competition authority does not need to prove the effects of the practice. However, there is still no uniform answer to the question of whether the presumption of harmfulness of by-object restrictions can be rebutted due to the context of a specific case. Polish jurisprudence does not provide an unambiguous answer, drifting between a formal and a more economic approach. More explicit conclusions in favor of an economic approach can be drawn from EU law. The aim of the article is to present and compare models of antitrust assessment of restrictions "by object" developed in Polish and EU jurisprudence, and to propose, on this basis, a solution, that should be adopted in Polish jurisprudence. The author argues in favor of the antitrust authority examining the broader economic context also in case of conducts that fall into the categories usually assessed as restrictions "by object", provided that an appropriate evidence and arguments exist that may refute the presumption of restriction of competition.

Keywords: competition law; agreements restricting competition; restrictions by-object
DOI: 10.33226/0137-5490.2021.1.5
JEL: K21, K29, K40

The primary goal of the paper is to elaborate on some of the recent changes of arbitration laws in Poland. The paper tracks selected measures relating to corporate disputes on an international level and compares and contrasts them with Polish regulations pertinent to the concept of arbitrability. The underlying objective of the paper is to highlight the novelties in Polish law, and how they correspond to the current international trends in the realm of arbitration. The paper highlights the importance of implementing ADR in a corporate setting. As evidenced by case law, corporate disputes are prone of having a significant impact on the functioning of a business enterprise, the market, and the economy. For these reasons, implementing the idea of dispute resolution into corporate governance may contribute to a shift in the way of doing business in Poland. The applied methodology is based on an analysis of selected Polish and international legislative acts pertinent to arbitration, supplemented by statistical data, viewpoints and opinion present in the doctrine of arbitration law.

Keywords: arbitrability; ADR (alternative dispute resolution); corporate disputes; corporate governance; shareholder's rights
DOI: 10.33226/0137-5490.2021.1.6
JEL: K23, K31

The aim of this article is to analyze the institution of a substitute governor's in conjunction with the Anti- Corruption Act. This article refers to the issue of legal regulations concerning the supplementary decree as one of the special instruments of personal supervision exercised by the voivode (a provincial representative of the central government in Poland) over the activities of local government. A supplementary decree may be issued by a voivode in cases where the local government bodies do not take action as prescribed by the law. With such an action the voivode substitutes local government bodies, taking over their competences on the basis of specific legal rules. The legal basis for issuing supplementary decrees are the provisions of the legal acts setting the legal framework for the Polish local government system acts in conjunction with the Anti- Corruption Act. The author bases his discussion on previous of legal writing and case law as well as his own practical experience in the interpretation and application of the Anti-Corruption act. The text partly uses findings of the author presented in other publications concerning the Anti-Corruption Act (Mroczka, 2020, p. 31–64).

Keywords: voivode (provincial governor); supplementary decree; supervision; local selfgovernment; anti-corruption law
DOI: 10.33226/0137-5490.2021.1.7
JEL: F210, F520, K330

The conditions for mechanisms of screening of foreign direct investments employed by EU Member States are set out in Article 3 of EU Regulation 2019/452 establishing a framework for the screening of foreign direct investments into the Union. The purpose of the article is to assess the consequences of this provision for Polish law, with particular emphasis on the possible need for legislative intervention to ensure its full effectiveness. The following requirements have been taken into consideration: non-discrimination, transparency, appropriate timeframes, protection of confidential information, ensuring the right of recourse, preventing circumvention of the screening mechanism. The analysis leads to a conclusion that the entry into force of Article 3 of Regulation 2019/452 does not require Polish legislation to be amended.

Keywords: foreign direct investment screening; EU Regulation 2019/452; Law on control of certain investments; protection of business secrets
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