New technologies in Polish commercial arbitration on the background of European Union regulations

: Commercial arbitration in Poland has to face contemporary problems, including those related to the constant development of information technologies, and therefore new technologies. It is seen during the COVID pandemic. This article is intended to assess the state of Polish regulation on the background of European Union regulations in the above-mentioned area and to propose potential changes to the Polish legislation 1 if they are needed.


Introduction
In this article, I will describe the role of new technologies in Polish commercial arbitration. This article hypothesizes that the Polish provisions are sufficient in the field of the new technologies in the Polish commercial arbitration, but with an exception for cases involving consumers. To prove this hypothesis I will check the current Polish regulations and how they work in practice 2 , especially during the COVID pandemic.
concluded before the court upon recognition or enforcement thereof by the court" 7 .
According to the above-mentioned art. 1162 CCP " §1. The arbitration agreement shall be in writing.
§2. The requirement as to the form of the arbitration agreement shall also be met if the agreement is contained in correspondence exchanged between the parties or statements made using telecommunications enabling the content thereof to be recorded. Reference in a contract to a document containing a provision on submission of a dispute to arbitration shall meet the requirement as to the form of the arbitration agreement if the contract is made in writing and the reference is such that it makes the clause an integral part of the contract" 8 .
So in consumer matters, papers or statements exchanged by means of distance communication that make it possible to consolidate their content cannot be considered as an arbitration clause, so it can be said that the consumer protection does not take into account the development of the new technologies 9 . The reason for such strict regulation is the safety of the consumer as the weaker party.
We can see the new technologies not only as a useful tool but also as the object of the arbitration as well. There is no special regulation about the arbitrability of new technologies in Polish arbitration. Regardless of the kind of qualification of the new technologies disputes matters in the field of Polish law, because of art. 1157 CCP. On 8th September 2019, the amendment to the arbitration proceedings entered into force. The amendment covered, among other provisions art. 1157 CCP regulating the arbitrability 10 . According to it "Unless a special provision provides otherwise, the parties may subject to arbitration: 1) disputes regarding property rights, with the exception of cases regarding maintenance; 2) disputes regarding non-property rights, provided they can be the subject of a court settlement" 11 . Because of the current wording of art. 1157 CCP, the view that, in art. 1157 CCP, a reservation has been made that disputes over property or non-property rights -which might be the subject of a court settlement, might be submitted for arbitration, except for maintenance cases. This reservation ought to be understood in such a way that if the dispute were subject to the resolution of a state court, the parties, as to the rights in dispute, could conclude a settlement, therefore the arbitrability is subject to the settlement of the dispute (amicable settlement) 12 . It is nowadays only valid for non-property rights disputes 13 . Based upon art. 184 CCP "Insofar as their nature so permits, civil cases may be settled before an action is brought in court. The court shall consider a settlement agreement to be inadmissible if the content thereof is contrary to the law or principles of community life or if it seeks to circumvent the law" 14 .

Online Dispute Resolution (ODR)
Information technologies support in various ways not only the court settlement of disputes but also (...) out-of-court amicable forms. Firstly, by providing the parties with communication tools enabling synchronous (teleconference, chat) or asynchronous (e-mail) remote communication. (...) Secondly, legal information databases may play an important role in the settlement of disputes, providing negotiating parties with information on applicable regulations or court rulings issued by courts in a given jurisdiction. (...) Thirdly, computer programs called negotiation decision support systems (NDSS) generate prompts regarding the decisions of individual parties at a given stage of the negotiation process, as well as present important information of a different type (...). Fourthly, a computer program might propose a comprehensive solution to the dispute between the parties by a fully 11 POLISH CIVIL PROCEDURE CODE, http://arbitration-poland.com/legal-acts/ print,139.html. 12 Karol Ryszkowski, "Klauzula porządku publicznego w postępowaniu przed sądem polubownym a zdatność arbitrażowa, " ADR. Arbitraż i Mediacja, no. 1(21) (2013): 77. 13 Ryszkowski, "New technologies in the Polish commercial arbitration, " 250. 14 Code of Civil Procedure, Art. 184. Admissibility of a settlement agreement., Legalis, accessed February 08, 2021. automated allocation of individual disputed issues between the parties. (...) The research and practical-IT trends related to the use of new information technologies, especially network technologies, in alternative dispute resolution is known as Online Dispute Resolution (ODR) 15 .
Online Dispute Resolution (ODR) is a form of online dispute resolution using ADR methods. There are many terms in the doctrine that describe the same phenomenon, including Electronic ADR (eADR), Internet Dispute Resolution (iDR), and Online ADR (oADR), but ODR is the most common. There are many categories of online dispute resolution, including online arbitration 16 .
The ODR is regulated in the following EU normative acts 17 :  In this creation was "… demonstrated the will of the Council of Europe to promote the rule of law and fundamental rights in Europe, on the basis of the European Convention on Human Rights [the Convention for the Protection of Human Rights and Fundamental Freedoms 27 ], especially its Articles 5 (Right to liberty and security), 6 (Right to a fair trial), 13 (Right to an effective remedy) and 14 (Prohibition of discrimination)" 28 .
The activity of this entity may be useful in the development of new technologies in court proceedings, including commercial arbitration. An example of a solution that may prove helpful is the CEPEJ study "… on the establishment of a certification mechanism for AI tools and services used in the fields of justice and the judiciary. The study begins to implement the CEPEJ Charter on the use of AI in judicial systems and their environment, adopted in late 2018. Broadly, the CEPEJ proposes certification and labeling criteria for AI tools based on principles outlined in the Charter, including (1) the Principle of respect of fundamental rights; (2) the Principle of non-discrimination; (3) the Principle of quality and security (with regards to the processing of judicial decisions and data, using certified sources and intangible data in a secure technological environment); (4) Principle of transparency, impartiality, and fairness; and (5) Principle of "under user control" (ensuring users are informed actors and in control of their choices). The proposed CEPEJ certification requirements will likely impact 26 Council of Europe, Resolution Res (2002) cols Nos. 1,4,6,7,12,13 and 16,ETS No. 5: ETS No. 009,4: ETS No. 046,6: ETS No. 114,7: ETS No. 117,12: ETS No. 177. 28 Council of Europe, "MAKING JUSTICE MORE EFFICIENT, 15 years serving justice in Europe, " https://rm.coe.int/prems-083118-bil-2013-15e-anniversaire-cepej-web/ 16808b5ee4: 4. a number of "Legal Tech" areas, such as case law search engines, online dispute resolution, predictive analysis, automated legal drafting, and so on" 29 .
Moreover, this study directly refers to the New York Convention in the paragraph which stated that the "… certification of artificial intelligence systems in the judicial sphere would also make it possible to support private and public projects and to establish standards that reach beyond Europe, justifying, for example, the development of international mechanisms for the recognition and enforcement of foreign decisions (..) or arbitral awards (..) made by or with the assistance of artificial intelligence" 30 .
From the EU soft law acts which have their influence on ADR, and thus commercial arbitration, it is worth mentioning the Commission Recommendation of 4 April 2001 on the principles for out-of-court bodies involved in the consensual resolution of consumer disputes (Text with EEA relevance) (notified under document number C (2001) 1016)  In paragraph (14) of the preamble of 2001/310/EC, its aim is stated. According to it "(14) In accordance with Article 6 of the European Human Rights Convention, access to the courts is a fundamental right".
Recommendation 2001/310 / EC formulates four rules for the functioning of ADR bodies. These are 1) impartiality, 2) transparency, 3) efficiency (easy availability, low cost or no payment for consumers), 4) fairness. In fact, these principles differ little from the previous ones. This is just a different approach to similar requirements 32 . 29 Eric Chang, "A Roundup of Tech and Dispute Resolution News, March 9, 2021, " http:// arbitrationblog.kluwerarbitration.com/2021/03/09/a-roundup-of-tech-and-dispute-resolution-news/. 30 European Commission for the Efficiency of Justice, "Possible introduction of a mechanism for certifying artificial intelligence tools and services in the sphere of justice and the judiciary: Feasibility Study, " https://rm.coe.int/feasability-study-en-cepej-2020-15/1680a0adf4, 31.03.2021, p. 27. Moreover, these rules are commonly accepted in commercial arbitration, maybe with the exception of effectiveness which is not always connected with lower costs. However, in cases with a low amount of value of the dispute, there is a simplified type of procedure called small claims.
Small claims have fundamental importance for the arbitration proceedings because of guaranteeing the implementation of speed in arbitration 33 .

Implementation of EU regulations in the matter of commercial arbitration in the Polish legal system
Solutions from the Directive on consumer ADR were introduced to Polish arbitration by the Act of 23 rd September 2016 on Out-of-Court Consumer Dispute Resolution 34 . Pursuant to the justification for this Act, the Polish legislator having to bear in mind the fact that under the out-of-court consumer dispute resolution system there will also be ADR entities that currently resolve disputes using the mediation or arbitration procedure regulated in the provisions of the Code of Civil Procedure (CCP), in order to maintain the coherence of the system, these procedures had to be adapted to the requirements of the ADR directive 35 .
In the case of arbitration, the situation is more attractive for the parties, as there is greater freedom of both the arbitration court and the parties in 33 Karol Ryszkowski, "Problem small claims w arbitrażu handlowym w prawie polskim, " in Maloznačnì spori: êvropejskij ta ukraїns 'kij docvìd virìšennâ, eds. Ìrina Ìzarova, Radoslav Flejszar, and Roksolana Hanik-Pospolìtak (Kiїv: VD "Dakor", 2018), 148. About small claims institution see also Andrzej Olaś, "Some remarks on the pending reform of the polish domestic small claims procedure, " in Maloznačnì spori: êvropejskij ta ukraїns'kij docvìd virìšennâ, eds. Ìrina Ìzarova, Radoslav Flejszar, and Roksolana Hanik-Pospolìtak (Kiїv: VD "Dakor", 2018), 100, Karol Ryszkowski, "Kwestia small claims w arbitrażu handlowym w prawie polskim, " Zeszyty Naukowe Uniwersytetu Rzeszowskiego, no. 114, Seria Prawnicza, Prawo 32 (2021)  shaping the rules of the procedure itself. Nowadays, with the COVID-19 epidemic, the common courts work to a very limited extent. They practically do not hold hearings in open court, while meetings by videoconference are limited for technical reasons. On the other hand, in arbitration proceedings the question of whether to hold a hearing in open court, i.e. summon the parties to an arbitration court, or conduct a hearing by videoconference, teleconference, through the exchange of documents containing the parties' statements, or otherwise -for example by via instant messaging, it is, in fact, the responsibility of the arbitration court itself. In this respect, it is usually only bound by its regulations. Evidence can be taken through just such a videoconference where, for example, a witness, expert, or party can be heard. You can also hear a witness in writing, moreover, CCP now also introduces such a possibility, but here arbitration was the leader and it showed the way to such simplified evidence proceedings. Arbitral tribunals, especially electronic ones, commonly use electronic services 36 .