Table of Contents PREFACE... XIX ACKNOWLEDGEMENTS... XXI ABBREVIATIONS... XXIII

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1 PREFACE... XIX ACKNOWLEDGEMENTS... XXI ABBREVIATIONS... XXIII Chapter 1. COMMERCIAL LAW: DEFINITION, DEVELOPMENT, SCOPE & SOURCES DEFINITION, DEVELOPMENT & SCOPE SOURCES OF COMMERCIAL LAW... 5 Chapter 2. AN ENTREPRENEUR: TO BE OR NOT TO BE OVERVIEW BUSINESS ACTIVITY LEGAL FORMS THE ON ITS OWN BEHALF CRITERION REGISTERED ENTREPRENEUR STATUS COMMERCIAL ENTREPRENEURS AND REGISTERED ENTEREPRENEURS: RELATIONSHIPS DEFINTION OF AN ENTERPRISE AUXILIARY PERSONS OF THE ENTREPRENEUR DEPENDANT AUXILIARY PERSONS PROKURENT (a) NATURE, CAPACITY & FORMAL REQUIREMENTS (b) SCOPE (c) EXPIRY OF PROKURA PERSONS ACTING IN PLACE OF AN ENTERPRISE V

2 8.2. INDEPENDENT AUXILIARY PERSONS AGENT (a) Definition (b) Types of Agents (c) Duties (d) Rights AUTHORISED DEALERS FRANCHISEE Chapter 3. BUSNIESS NAME CREATION AND CONTINUED USAGE OF A BUSINESS NAME: RULES PRINCIPLE OF BUSINESS NAME HONESTY STEADINESS OF THE BUSINESS NAME BUSINESS NAME UNITY EXCLUSIVITY OF THE BUSINESS NAME PUBLICITY PRINCIPLE OF THE BUSINESS NAME INALIENABILITY OF THE BUSINESS NAME PROTECTION OF THE BUSINESS NAME Chapter 4. REGISTRATION OF ENTREPREUNERS: RULES THE POLISH COURT REGISTER CENTRAL INFORMATION OFFICE STRUCTURE REGISTRATION PROCEDURE CONSEQUENCES OF REGISTRATION THE BUSINESS ACTIVITY REGISTER Chapter 5. FORMS OF BUSINESS ORGANISATIONS I. INTRODUCTION II. PROPRIETORSHIP III. PARTNERSHIP LAW THE GENERAL PARTNERSHIP CHARACTERISITICS FORMATION OPERATION DISSOLUTION AND LIQUIDATION THE LIMITED PARTNERSHIP CHARACTERISTICS FORMATION VI

3 2.3. OPERATION DISSOLUTION AND LIQUIDATION PROFESSIONAL PARTNERSHIP CHARACTERISITCS FORMATION OPERATION DISSOLUTION AND LIQUIDATION LIMITED JOINT-STOCK PARTNERSHIP CHARACTERISITICS FORMATION OPERATION DISSOLUTION AND LIQUIDATION IV. COMPANY LAW THE JOINT-STOCK COMPANY FORMATION SHARES AND BONDS SHARES BONDS DEALINGS AND THE TRANSFORMATION OF THE POLISH CAPITAL MARKET OPERATION THE MANAGEMENT BOARD THE SUPERVISORY BOARD THE GENERAL ASSEMBLY DISSOLUTION AND LIQUIDATION DISSOLUTION LIQUIDATION THE LIMITED LIABILITY COMPANY CHARACTERISTICS FORMATION OPERATION INTRODUCTION THE MANAGEMENT BOARD THE SUPERVISORY BOARD THE GENERAL MEETING DISSOLUTION AND LIQUIDATION V. SUPRANATIONAL FORMS OF BUSINESS ORGANISATIONS THE EUROPEAN ECONOMIC INTEREST GROUPING INITIAL CONSIDERATIONS FORMATION VII

4 1.3. OPERATION MANAGEMENT BY MEMBERS MANAGEMENT BY MANAGERS DISSOLUTION WINDING UP THE EUROPEAN COMPANY (S.E.) INTRODUCTION ADVANTAGES OF THE EUROPEAN COMPANY FIELD OF APPLICABLITY AND LAW GOVERNING THE EUROPEAN COMPANY FORMATION PROCESS MERGERS FORMATION OF A HOLDING EUROPEAN COMPANY FORMATION OF A SUBSIDIARY EUROPEAN COMPANY CONVERTION OF AN EXISTING PUBLIC LIMITED- -LIABILITY COMPANY INTO A EUROPEAN COMPANY STRUCTURE OF THE EUROPEAN COMPANY WINDING UP AND LIQUIDATION Chapter 6. FOREIGN ENTITIES DOING BUSINESS IN POLAND: LEGAL ASPECTS LEGAL FRAMEWORK AND DEFINITION OF A FOREIGN ENTREPRENEUR MEANS OF CONDUCTING BUSINESS INTRODUCTION REPRESENTATIVE OFFICE BRANCH SUBSIDIARY REGISTRATION REQUIREMENTS Chapter 7. POLISH INTERNATIONAL CORPORATION LAW: AN EU LAW CONTEXT I. POLISH INTERNATIONAL CORPORATION LAW GENERAL OBSERVATIONS SEAT THEORY INCORPORATION THEORY II. EU LAW: FREEDOM OF ESTABLISHMENT FREEDOM OF ESTABLISHMENT: SIGNIFICANCE OF COMPANIES OR FIRMS SCOPE OF ARTICLE 43 OF THE TREATY OF ROME VIII

5 1.2. SCOPE OF ARTICLE 48 OF THE TREATY OF ROME COMPANIES OR FIRMS IN THE SAME WAY TREATMENT (i) FORMATION OF COMPANIES OR FIRMS IN ACCORDANCE WITH MEMBER STATE LAW...89 (ii) REGISTERED OFFICE, CENTRAL ADMINISTRATION OR PRINCIPAL PLACE OF BUSINESS (iii) THE RESIDENT CRITERION CONFLICT RULES OF INTERNATIONAL PRIVATE LAW AS GROUNDS FOR CLAIMING FREEDOM OF ESTABLISHMENT INITIAL CONSIDERATIONS DETERMINATION OF PERSONAL STATUS SECONDARY ESTABLISHMENT PRIMARY ESTABLISHMENT RELOCATION FROM A STATE USING THE INCORPORATION THEORY TO ANOTHER STATE USING THE INCORPORATION THEORY RELOCATION FROM A STATE USING THE SEAT THEORY TO ANOTHER STATE USING THE SEAT THEORY (i) PROBLEMS INHERENT IN LAWS OF CONFLICT (ii) PROBLEMS INHERENT IN SUBSTANTIVE LAW RELOCATION FROM A STATE USING THE INCOR- PORATION THEORY TO A STATE USING THE SEAT THEORY RELOCATION FROM A STATE USING THE SEAT THEORY TO A STATE USING THE INCORPORATION THEORY III. CONSISTENCY OF THE SEAT THEORY WITH FREEDOM OF ESTABLISHMENT: JUDICIAL DECISION OF THE EUROPEAN COURT OF JUSTICE INTRODUCTION THE ECJ s DAILY MAIL JUDGEMENT OF 27 SEPTEMBER THE ECJ s CENTROS JUDGEMENT OF 9 MARCH THE ECJ s ÜBERSEERING JUDGEMENT OF 5 NOVEMBER THE ECJ s INSPIRE ART JUDGEMENT OF 30 OCTOBER IV. CONSEQUENCES OF ECJ JUDGEMENTS FOR POLISH LAW INITIAL CONSIDERATIONS THE REAL SEAT PRINCIPLE AS INCONSISTENT WITH FREEDOM OF ESTABLISHMENT MOVING-IN: CASES DEPARTURE: CASES IX

6 X 2.3. APPLICATION OF POLISH LAW TO FOREIGN COMPANIES RELOCATING THEIR REAL SEAT TO POLAND: SCOPE BUSINESS NAME REGULATION LEGAL CAPACITY MINIMUM CAPITAL LIABILITY OF DIRECTORS AND SHAREHOLDERS: PROTECTION OF CREDITORS PROTECTION OF MINIORITY SHAREHOLDERS CO-DETERMINATION WINDING UP AND LIQUIDATION LAW OF TORTS AND CRIMINAL LAW ABUSE Chapter 8. CHARACTERISTIC FEATURES OF COMMERCIAL CONTRACTS I. INTRODUCTION II. ACCEPTANCE OF A REVOCABLE OFFER III. PERMISSIBILITY OF ACCEPTANCE OF A MODIFIED OFFER IV. THE LETTER OF CONFIRMATION V. EXCLUSION OF THE AD PROBATIONEM FORM VI. RULES FOR MAKING AN OFFER IN ELECTRONIC FORM VII. THE CRITERION OF REQUIRED CARE FOR ENTREPRENEURS VIII. EXCLUSION OF THE REVALUATION PRINCIPAL IX. CONCLUSION OF CONTRACTS BY USAGE OF DIFFERENT STANDARD FORMS OF CONTRACTS X. SILENCE AS ASSENT Chapter 9. PURCHASE AND SALE OF GOODS I. GENERAL CONTRACTUAL TERMS CHOICE OF LANGUAGE PAYMENT CLAUSE GOVERNMENT APPROVAL CLAUSE ARBITRATION CLAUSE FORCE MAJEURE CHOICE OF LAW AND JURISDICTION PENALTY CLAUSE II. NATIONAL TERMS OF DELIVERY AND PAYMENT MAIN CHARACTERISTICS OF THE PURCHASER AND SALE AGREEMENT

7 2. TERMS OF DELIVERY GENERAL PROVISIONS SPECIFIC PROVISIONS (a) DEFAULT OF THE PURCHASER (b) LIABILITY FOR DEFECTS TERMS OF PAYMENT III. INTERNATIONAL TERMS OF DELIVERY (INCOTERMS) EXW (Ex Works) GENERAL CHARACTERISTICS EXAMPLES OF SELLER S OBLIGATIONS EXAMPLES OF BUYER S OBLIGATIONS FCA (Free Carrier) GENERAL CHARACTERISTICS EXAMPLES OF SELLER S OBLIGATIONS EXAMPLES OF BUYER S OBLIGATIONS FAS (Free Alongside Ship) GENERAL CHARACTERISTICS EXAMPLES OF SELLER S OBLIGATIONS EXAMPLES OF BUYER S OBLIGATIONS FOB (Free On Board) GENERAL CHARACTERISTICS EXAMPLES OF SELLER S OBLIGATIONS EXAMPLES OF BUYER S OBLIGATIONS CFR (Cost and Freight) GENERAL CHARACTERISTICS EXAMPLES OF SELLER S OBLIGATIONS EXAMPLES OF BUYER S OBLIGATIONS CIF (Cost, Insurance and Freight) GENERAL CHARACTERISTICS EXAMPLES OF SELLER S OBLIGATIONS EXAMPLES OF BUYER S OBLIGATIONS CPT (Carriage Paid To) GENERAL CHARACTERISTICS EXAMPLES OF SELLER S OBLIGATIONS EXAMPLES OF BUYER S OBLIGATIONS CIP (Carriage and Insurance Paid to) GENERAL CHARACTERISTICS EXAMPLES OF SELLER S OBLIGATIONS EXAMPLES OF BUYER S OBLIGATIONS DAF (Delivered at Frontier) GENERAL CHARACTERISTICS XI

8 XII 9.2. EXAMPLES OF SELLER S OBLIGATIONS EXAMPLES OF BUYER S OBLIGATIONS DES (Delivered Ex Ship) GENERAL CHARACTERISTICS EXAMPLES OF SELLER S OBLIGATIONS EXAMPLES OF BUYER S OBLIGATIONS DEQ (Delivered Ex Quay) GENERAL CHARACTERISTICS EXAMPLES OF SELLER S OBLIGATIONS EXAMPLES OF BUYER S OBLIGATIONS DDU (Delivered Duty Unpaid) GENERAL CHARACTERISTICS EXAMPLES OF SELLER S OBLIGATIONS EXAMPLES OF BUYER S OBLIGATIONS DDP (Delivered Duty Paid) GENERAL CHARACTERISTICS EXAMPLES OF SELLER S OBLIGATIONS EXAMPLES OF BUYER S OBLIGATIONS IV. INTERNATIONAL TERMS OF PAYMENT , NET CASH CLAUSE CASH AGAINST INVOICE CASH ON DELIVERY / PAY ON DELIVERY CASH AGAINST DOCUMENTS CASH AGAINST A LETTER OF CREDIT OR DOCUMENTS AGAINST A LETTER OF CREDIT V. INTERNATIONAL PRIVATE LAW VI. EU LAW AND INTERNATIONAL TREATIES OR CONVENTIONS VII. UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (1980) INTRODUCTION STRUCTURE AND ESSENTIAL FEATURES CONDITIONS AND SCOPE OF APPLICABLITY CONDITIONS OF APPLICABLITY SCOPE OF APPLICABLITY GENERAL PROVISIONS OFFER, ACCEPTANCE AND FORMATION OF CONTRACT BASIC LEGAL REMEDIES REMEDY TO REQUIRE PERFORMANCE OF ANY OBLIGATION AND RATIFICATION OF SUBSEQUENT DELIVERY REMEDY AS RIGHT OF RETENTION

9 6.3. CLAIMS FOR COMPENSATION TERMINATION OF CONTRACT VII. WORLD TRADE ORGANISATION Chapter 10. DANGEROUS PRODUCTS LIABILITY I. GENERAL CHARACTERISTICS II. PRODUCER III. PERSONS INJURED IV. DANGEROUS PRODUCTS V. SCOPE OF DAMAGE VI. EXEMPTION OF PRODUCERS FROM LIABLITY Chapter 11. PURCHASE AND SALE OF IMMOVABLE PROPERTY I. INITIAL CONSIDERATIONS II. THE FUNCTION OF LAND REGISTER III. CONTRACTS FOR THE SALE OF IMMOVABLE PROPERTY CONFLICT OF LAWS: PRINCIPLES FORMAL REQUIREMENTS CONTENTS OF A CONTRACT FOR THE SALE OF IMMOVABLE PROPERTY MINIMUM CONTENT PARTIES TO A CONTRACT FOR SALE OBJECT OF SALE PURCHASE PRICE HANDING-OVER DATE DEFECTS OF QUALITY AND DEFECTS OF TITLE PURCHASE PRICE AND MEANS OF PROVIDING SECURITY FOR THE PAYMENT IV. PRIVATE AND PUBLIC RESTRITIONS REGARDING THE PURCHASE OF IMMOVABLE PROPERTY PRIVATE RESTRICTIONS INTRODUCTION SCOPE OF THE ACT ON THE ACQUISITION OF IMMOVABLE PROPERTY BY FOREIGNERS, 24 MARCH APPROVAL FOR THE ACQUISITION OF IMMOVABLE PROPERTY EXEMPTIONS TREATMENT OF NATIONALS AND ENTREPRENEURS FROM EEA MEMBER STATES XIII

10 XIV 2. PUBLIC RESTRICTIONS THE ACT ON THE SHAPING OF AGRICULTURE STRUCTURES, 11 APRIL THE ACT ON MANAGMENT OF AGRICULTURAL IMMOVABLE PROPERTY OF THE STATE TREASURY, 19 OCTOBER THE ACT ON THE MANAGEMENT OF IMMOVABLE PROPERTY, 21 AUGUST Chapter 12. PURCHASE AND SALE OF AN ENTERPRISE (PRIVATE ACQUISITION) I. PROCESS OF ACQUISITION OF AN ENTERPRISE II. ASSET DEAL LEGAL BACKGROUND FOR THE PURCHASE OF AN ENTEPRISE IN THE FORM OF AN ASSET DEAL INTRODUCTION ARTICLES 55 1 AND 55 2 OF THE CIVIL CODE LEGAL BASIS FOR THE PURCHASE OF AN ENTEPRISE WARRANTY CLAUSES IN THE PURCHASE OF AN ENTERPRISE WITH RESPECT TO AN ASSET DEALS PRELIMINARY EXPLANATION DUE DILIGENCE PRIOR TO CLOSING DUE DILIGENCE AFTER CLOSING WARRANTY PROVISIONS IN GENERAL DEFECTS IN QUALITY OF AN ENTERPRISE DEFECTS IN TITLE OF AN ENTERPRISE DEFECTS OF AN ENTIRE ENTERPRISE AND DEFECTS OF SEPARATE COMPONENTS OF AN ENTEPRISE EXCLUDING THE SELLER S WARRANTY BUYER S CLAIMS BASED ON WARRANTY NOTICE OF DEFECT CESSATION OF WARRANTY CLAIMS BASED ON DEFECTS IN AN ENTERPRISE THE CONTRACTUAL MODIFICATION OF A SELLER S LIABILITY FOR DEFECTS IN AN ENTERPRISE CONCEQUENCES OF THE ASSET DEAL TO THE LAW OF EMPLOYMENT III. A SHARE DEAL LEGAL BACKGROUND FOR THE PURCHASE OF AN ENTEPRISE IN THE FORM OF AN SHARE DEAL

11 1.1. INTRODUCTION LEGAL BASIS WARRANTY CLAUSES IN THE PURCHASE OF AN ENTERPRISE WITH RESPECT TO SHARE DEAL RESTRICTIONS ON SALE OF SHARES/INTREST IN ACCORDANCE WITH PROVISIONS OF COMMERCIAL COMPANIES CODE COMPANY LAW PARTNERSHIP LAW CONSEQUENCES OF THE SHARE DEAL TO THE LAW OF EMPLOYMENT IV. SOME LEGAL ASPECTS OF COMPETITION LAW WITH RESPECT TO ASSET AND SHARE DEAL TRANSACTIONS INTRODUCTION NOTIFICATION OF CONCENTRATION EXCEPTIONS OF THE PROPOSED CONCENTRATION POWERS OF DECISIONS OF THE COMPETITION OFFICE V. ASSET DEAL TRANSACTION AND THE ACQUISITION OF IMMOVABLE PROPERTY Chapter 13. INSOLVENCY INTRODUCTION APPLICABLITY OF THE INSOLVENCY AND REORGANISATION LAW REASONS FOR ANNOUNCEMENT AND REASONS FOR REJECTIONS OF THE ANNOUNCEMENT OF THE INSOLVENCY PROCEEDINGS REASONS FOR ANNOUNCEMENT REASONS FOR REJECTIONS OF ANNOUNCEMENT REASONS FOR COMMENCING REORGANISATION PROCEEDINGS PROCEEDINGS REGARDING THE ANNOUNCEMENT OF INSOLVENCY AND MAKING DECISION CONSEQUENCES OF THE ANNOUNCEMENT OF INSOLVENCY ORGANS INVOLVED IN THE INSOLVENCY PROCEEDINGS CHARACTERISTIC COMMON REGULATIONS FOR TRUSTEE, COURT SUPERVISOR, AND ADMINISTRATOR FURTHER DUTIES AND POWERS OF THE TRUESTEE FURTHER DUTIES AND POWERS OF THE COURT SUPERVISOR FURTHER DUTIES AND POWERS OF THE ADMINISTRATOR XV

12 XVI 8. PARTICIPANTS IN THE INSOLVENCY PROCEEDINGS INSOLVENT DEBTOR CREDITORS DEFINITION MEETING OF CREDITORS BOARD OF CREDITORS COMMON REGULATION FOR INSOLVENCY PROCEEDINGS INCLUDING THE COMPOSITION AGREEMENT AND INSOLVENCY PROCEEDINGS INCLUDING LIQUIDATION CLAIMS REQUIRED TO BE FILED FILING CLAIMS LIST OF CLAIMS INSOLVENCY PROCEEDINGS INCLUDING THE COMPOSITION AGREEMENT CLAIMS INCLUDED IN THE COMPOSITION CONTENT OF THE COMPOSITION PROCEEDINGS REGARDING THE CONCLUDING OF THE COMPOSTION INSOLVENCY PROCEEDINGS INCLUDING THE LIQUIDATION PROCEEDINGS REORGANISATION PROCEEDINGS CHARACTERISTIC AND PURPOSE COMMENCEMENT OF THE REORGANISATION PROCEEDINGS AND THE REORGANISATON PLAN LEGAL CONSEQUENCES OF THE INITIATION OF REORGANSIATON PROCEEDINGS COMPOSITION WITH CREDITORS Chapter 14. ARBITRATION LEGISLATION GENERAL PROVISIONS SCOPE OF APPLICATION SCOPE OF ISSUES SUBMITTED TO THE ARBITRATION PROCESS (ARBITRABILITY) RECEIPT OF WRTITTEN COMMUNICATION ARBITRATION AGREEMENT DEFINITION KINDS OF ARBITRATION COURTS FROM OF THE ARBITRATION AGREEMENT COMPOSITION AND JURISDICTION OF THE ARBITRATION COURT NUMBER OF ARBITRATORS APPOINTMENT OF ARBITRATORS

13 4. JURISDICTION OF THE ARBITRATION COURT CONDUCT OF ARBITRATION PROCEDDINGS GENERAL RULES OF PROCEEDINGS PLACE AND COMMENCEMENT OF ARBITRATION PROCEEDINGS LANGUAGE AND COURSE OF PROCEEDINGS THE AWARD AND TERMINATION OF PROCEEDINGS JUDICAL REVIEW OF ARBITRATION ISSUES INDEX REFERENCES XVII