May International Arbitral Tribunals Declare Laws Unconstitutional? An International and a Polish Perspective on the Issue of Dealing with Unlawful Laws

Abstract

This article focuses on the issue of the international arbitral tribunals’ authority to disregard supposedly applicable statutory provisions of a given national law, which it deems to be non-compliant with relevant constitutional norms from the perspective of the Polish constitutional and arbitration law. Due to the fact that, in recent years, the present issue attracted a significant attention from the international academia, the analysis of the article begins with the report of various positions adopted by some of the leading international scholars on the matter in question. This initial study provides a firm basis for further exploration of this issue in light of the Polish law, which is preceded by a brief summary of the fundamental constitutional principles and notions underpinning the contemporary Polish legal order. Such critical analysis drives the author to a conclusion that there are no sufficiently persuasive arguments which would justify barring international arbitrators from applying the Polish substantive law in its entirety, including denying application of provisions violating the Constitution, which will supersede other normative acts. Conversely, the exercise of such arbitral review amounts to a basic duty of arbitrators (integral part of their mandate to resolve a dispute in accordance with the Polish law as the applicable substantive law of a dispute) rather than their discretionary authority.