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Banks as managers of customers’ interests

Mr Sidor argues that as far as banks are concerned, the west European legal scholarship treats banks as managers of financial matters of their customers, noting that this approach is increasingly often followed by Polish jurists. “This means that a bank is legally obliged to limit its activities that aim at maximising profits precisely because of the duty of care over a customer’s financial interests. Also, the Polish Supreme Court has developed in its jurisprudence a list of general obligations of a bank towards customers and other persons affected by the bank’s operations. These obligations are a consequence of banks having the status of institutions of public trust. As such, the obligations do not need to originate from specific contractual clauses, bank rules and regulations or provisions of law”, the piece reads.

A bank’s breach of the above general obligations may result in its liability to pay damages to an affected customer. “This was precisely the situation in the case decided by Warsaw’s Regional Court. According to media reports, the conduct of the bank and its appointee, a financial advisor, was extremely dishonest and the information they provided to a customer – “blatantly inaccurate”, Mr Sidor wrote.

ECJ ruling on the duty to properly inform a customer

In the context of the Warsaw court’s judgment, Mr Sidor points to a decision of the Court of Justice of the European Union, in which the Court reviewed Swiss franc-denominated loans given by a Romanian bank. “The CJEU ruled that the absence of proper notification of the foreign exchange risk and related economic consequences (i.e. the risk’s impact on the value of loan repayments) may lead to a significant imbalance of parties’ contractual positions”, the piece reads.

An opportunity for business borrowers

According to Artur Sidor, a bank’s failure to provide sufficient and adequate information on the credit risk, financial advisors’ behaviour that involves inducing purchases of additional, risky products or other disturbing behaviour contravening the principles of public policy can be cited as a cause of action brought by Swiss franc borrowers against banks.

“Importantly, this line of authority may be relied on by businesses taking legal action against banks, in particular by small companies that have no proceeds in Swiss francs. In fact, this is the only ground they may use as remedies against abusive clauses are available for consumers only. Still, in practice, a difference between a business and non-business customer is often illusory and the bank has overwhelming contractual and informational advantage over both”, Mr Sidor concludes in his piece.

The meeting was designed to serve as a platform for sharing experiences of practitioners from across the EU who discussed obstacles and problems related to the application of EAW. The discussion centred on both different aspects of observing the proportionality principle in applying the EAW procedure and grounds for non-execution of the warrant in another Member State.

“Those two elements, the principle of proportionality and the way in which an EAW is enforced in other Member States, are precisely the two aspects of the real-life application of the Warrant that are most commented by practitioners. Despite the continuously rising number of relevant judicial decisions, more and more new issues appear in those two areas, which leads to differences in judicial interpretation between Member States”, Mr Dąbrowska explains.

The discussion also involved topics related to the impact the application of the EAW may have on the protection of fundamental rights, especially insofar as the risk of violating such rights constitutes a ground for a refusal to execute an EAW.

One of the core areas of Pietrzak Sidor & Wspólnicy practice is proceedings with a cross-border element, including EAW issuance and EU cross-border proceedings. To find out more about this working area of our firm, check out the “Specialisations” section of our website.

More than 290 law firms applied to the current, 15th annual ranking released by the newspaper.

“We are extremely proud of this recognition”, says firm’s partner Mikołaj Pietrzak, was also personally named the Best Corporate Defence Attorney. “We’ve been shaping the market practices in this area of law for years, and I’m very glad to see that the effort made by our team is appreciated”, Mr Pietrzak adds.

The team of Pietrzak Sidor & Wspólnicy has the years’ worth of expertise in defending corporate criminal cases. “Our team comprises excellent lawyers who are constantly mastering their knowledge and skills in the field of criminal defence for business. My colleagues such as Ms Katarzyna Dąbrowska or Ms Małgorzata Jadowska are among the best experts in this area of law I’ve ever worked with”, Mr Pietrzak says.

Rzeczpospolita and the legal aid clearinghouse Centrum Pro Bono also named the Best Pro Bono Lawyer. This year, this recognition went to Ms Sylwia Gregorczyk-Abram of Clifford Chance.

Congratulations!

The Strasbourg Court is to examine the applications of four other couples. “It’s unacceptable that in 2017 the Polish state does not protect fundamental rights of its citizens. A judgment by the ECtHR should be a clear signal for Polish lawmakers reminding them that it is the state’s obligation to provide legal protection for same-sex relationships”, says Mikołaj Pietrzak, a partner at Pietrzak, Sidor & Wspólnicy. Another firm’s lawyer, Małgorzata Mączka-Pacholak adds: “We’d like to obtain a ruling similar to that given in Oliari and Others v. Italy in 2015”. In Oliari, the Court held that the absence of a possibility to officially recognise unions of same-sex couples violates the right to respect for private and family life guaranteed in Article 8 of the European Convention on Human Rights.

ECtHR application: what were the Coalition’s arguments?

Before submitting the applications to the Strasbourg Court, all couples needed to follow the legal path available under national law, taking their cases from register offices through district courts to regional courts. For all four couples, regional courts upheld decisions of district courts, which ruled that heads of register offices had lawfully refused to accept documents that confirmed the couples’ capacity to marry.

The conclusion of judicial proceedings in Poland created the possibility of complaining to the European Court of Human Rights. “We argue in the applications submitted to the European Court of Human Rights that the absence of the possibility to enter a civil union by persons of the same sex violates the right to respect for private and family life and constitutes an example of discrimination based on sexual orientation. We point to the fact that the applicable laws collide with the Polish social realities”, Ms Mączka-Pacholak explains. The Coalition also complained to the Constitutional Court. Commenting on this part of the Coalition’s legal strategy, Ms Mączka-Pacholak said: “We brought constitutional complaints to the Constitutional Court because it is in best the interest of all of our clients to exhaust any available domestic remedies”.

The Board of Trustees of the UN Voluntary Fund for Victims of Torture (Board) cooperates with the Office of the United Nations High Commissioner for Human Rights. The Board is responsible for developing recommendations on granting financial assistance to projects and support actions for victims of torture.

“The appointment to the Board is both an honour and a challenge,” says advocate Mikołaj Pietrzak. “I treat this nomination as an opportunity to continue the mission which is part and parcel of the advocate’s profession, namely providing support to people and facilitating enforcement of their rights,” he adds.

Mikołaj Pietrzak is a partner at the Pietrzak Sidor & Partners Law Firm and a member of the Warsaw Bar Chamber and the District Bar Council in Warsaw. He is also the chair of the Human Rights Commission at the Polish Bar Council. In 2014, he became a member of the Doughty Street Chambers with headquarters in London.

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment has so far been ratified by 150 states. In the light of the Convention, torture is an international crime, its prohibition is absolute and nothing can justify its use. In spite of this fact, the rights of torture victims to compensation and rehabilitation are not fully respected. “It is often impossible due to, for example, various armed conflicts and the scale of humanitarian crises,” advocate Mikołaj Pietrzak explains.

The next session of the Board will be held in April this year.

Legal advisor Artur Sidor’s professional experience includes, among others, arbitration proceedings. In 2015, he completed a postgraduate course on international and comparative commercial arbitration at the Queen Mary University of London. He is also on the list of arbitrators of the Arbitration Court at the Polish Bank Association. He engages in the promotion of knowledge on arbitration. In recent years, he took part in the Warsaw Pre-moot, an educational project which simulates real arbitration proceedings. More information on Artur Sidor’s experience is available here.

The Court of Arbitration at the Confederation of Lewiatan is an institution of an international and regional standing, allowing for fast resolution of commercial and corporate disputes. For entrepreneurs, it means quicker decisions solving their disputes and lower costs of commercial activity. The Court deals with disputes of economic nature, arising both between domestic and international entities (more information on the Court is available here).

In the course of acceptance, the inspector is obliged to verify whether construction work was conducted in accordance with the design, building permit and law. “The current law does not regulate the issue of acceptance, but concentrates on formal requirements […] It should not be forgotten, however, that the rules for acceptance of particular stages of construction work can be regulated in a contract,” write legal advisor Artur Sidor and Zuzanna Morawska in an article for the “Builder” magazine.

Construction contracts signed on account of big and complex investment usually make reservations as to which stages of construction work should be subject to separate acceptance. “The investors thus secure their greater control over the construction process […]  Further works should not be initiated until an acceptance record is signed or until the period when the investor should sign it ends,” the authors note.

In practice, disputes related to acceptance of construction work arise when acceptance is denied or in the case of actual absences when acceptance is performed. Oftentimes, in the contract, investors provide long and imprecise deadlines for acceptance.

“It seems that participants of the construction process do not make sufficient use of the opportunity to regulate the issue of acceptance in the contract,” the authors write in the article.

The previous Sejm was working on the draft Building code which would address the problem of ongoing monitoring of the state of construction work. The draft envisaged severe consequences for violation of provisions concerning acceptance of construction stages and determined a detailed procedure of their acceptance. “The draft clearly stated that, first and foremost, it is the investor who is liable for the object’s non-compliance with regulations,” the authors note.

In the light of the draft, the acceptance itself would consist in verifying the construction work’s compliance with the design, conditions provided in the building permit, regulations and principles of technical knowledge.

According to the authors, the planned changes could have “resulted in a decreased number of building disputes arising from performance (or non-performance) of acceptance.”

The amendments to the Law on Police and laws on other law enforcement agencies introduce two levels of protection for privileged professional communication. The first level concerns the attorney-client privilege and confessional privilege. “These privileges cannot be revoked or lifted, which means that when a particular agency comes across materials containing such privileged communication, they have to immediately destroy them. The second level concerns all other professional privileges, including medical and legal professional privilege,” explains advocate Małgorzata Mączka-Pacholak.

Advocate Małgorzata Mączka-Pacholak points out that an officer of a given agency assesses whether the material is covered by the privilege only after acquainting oneself with its content. “If an officer decides that the obtained material is protected by the legal or medical professional privilege, they have to contact the prosecutor who will then transfer the material to the court. The court will, in turn, decide whether the material can be used in proceedings or not,” specifies advocate Małgorzata Mączka-Pacholak.

She notes that confidentiality of professional communication is not a privilege, but – first and foremost – the right of clients or patients who place their trust in professionals such as advocates or doctors. “In the legal or medical profession, it is important for our client or patient not to be afraid to confide their secrets in us, so that we trust each other. In a situation when there is a suspicion that the client confides their secrets in somebody else as well, the performance of our work is more difficult,” advocate Małgorzata Mączka-Pacholak adds.

In 2003, the applicant’s daughter was detained pre-trial. The family informed the administration of the detention center about the woman’s medical problems. However, their concerns were not taken into consideration and, a couple of days after being placed in a detention center, the applicant’s daughter was transported to the hospital in serious condition. She died soon after. The proceedings against the detention center’s physician had been ongoing before Polish courts until December 2013 when they were discontinued at the appellate stage due to the expiry of the statute of limitations.

In her application, Ms. P. alleged that Polish authorities had violated her daughter’s right to life (art. 2 of the Convention), as they had not complied with an obligation to provide her daughter with proper medical care in the course of detention. “The applicant also claimed that procedural standards had been violated,” explains advocate Paweł Osik, the applicant’s co-counsel. “There were no timely and effective judicial proceedings in the case in order to establish the woman’s cause of death and punish those responsible,” he adds.

In the proceedings before the ECHR, the Polish government submitted a unilateral declaration in which it admitted that the applicant’s daughter had not been provided with proper medical care. The government also admitted that the lack of an effective investigation violated the Convention. The government pledged to pay 15 000 EUR in compensation.

„This is yet another case before the ECHR concerning article 2 of the Convention related to the lack of effective proceedings into the causes of death of the applicant’s relative,” says advocate Mikołaj Pietrzak. “I hope that both this decision and other ECHR decisions in similar cases will improve human rights standards in this matter,” advocate Mikołaj Pietrzak adds.

The case was conducted as part of the Strategic Litigation Program of the Helsinki Foundation for Human Rights. Advocates Mikołaj Pietrzak and Paweł Osik represented the applicant pro bono in the proceedings both in national courts and before the ECHR.

As a rule, the only requirement when constructing a provisional building object is to notify the appropriate body. There are, however, exceptions which require obtaining a building permit. This can be the case when construction work interferes with the local spatial development plan.

The notification on the construction of a provisional building object should only be accompanied by drafts, which do not provide a full presentation of the end result. Improper construction of an object can lead to numerous defects and, in a longer perspective, building accident. In such a situation, the liability for such events remains unclear.

The current regulations on provisional building objects raise various concerns, not only with respect to technical requirements, but also legal obligations imposed on those who construct such objects. “Insufficient requirements as to the methods of constructing provisional building objects were the cause of many emergencies, including building accidents. What is more, the question of liability for those events is not unambiguously determined in law,” the authors write in their article.

According to the authors, “it is important to amend the current regulations, mainly with respect to the size of provisional building objects but also the potential outcomes of building accidents involving provisional objects.”