International Dispute Resolution: Will the Law Catch Up (in Poland)?
It will be a story about how the Law chases after the ever-changing world, especially the technology aspect in that world, and how it is difficult for the Law to catch up – and even if it makes the run, achieving the anticipated goal is not certain.
The Law in Poland was tasked with the purpose of “catching up” when a new form of legal actions was introduced into Polish Civil Code on 8 September 2016. It is so called “documentary form”. The purpose was to simplify commercial relations by allowing the parties to enter into an agreement in less formalized form.
The documentary form is now one of the three basic forms of legal actions, in addition to the written and electronic form. The documentary form is indeed the least formalized of them all. To satisfy the form’s requirements, it is enough to: (i) make a statement of will in a form of a document and, at the same time, (ii) make it in such a way that it will be possible to identify the person making the statement. Signature of the person making the statement is not required. What is important is the ability to confirm the identity of the person who made the statement.
By the document mentioned in point (i) above, we should understand any carrier of information enabling to get acquainted with its contents. A carrier of information could be anything that allows the information to be stored and then reproduced. An obvious example here would be an email, but also SMS, MMS, fax, audio file, audio-visual file or any other digital file, as long as it allows the information to be stored and then replayed.
Amendment in civil law was accompanied by the adjustment in civil procedure. Together with the aforementioned change to the Polish Civil Code, the Polish Code of Civil Procedure now states that its provisions regarding documents should be applied to documents containing text and allowing identification of person issuing the document. The civil procedure also provides that in case of documents where the carrier of information is audio and/or video (which, as we already know, is acceptable in the documentary form), the provisions regarding documents should be applied accordingly (mutatis mutandis).
In the court proceedings, when analyzing statements of will in the documentary form, most important will be confirmation of the identity of the sender of the statement. Obviously, this verification should be possible primarily from the perspective of the recipient of the statement. Unfortunately, the Law does not provide how this verification should be carried out. In the case of email for example, it may not include the name or surname of the sender. Or it may include the name and a surname of certain person, but it will be an email address set up and used by someone else.
In this case, it should probably be demonstrated that the sender of the statement used an email, which he or she used before in the correspondence with the addressee of the statement. Similarly, in the case of SMS message – only a message sent from the phone number earlier verified by the recipient of the statement as belonging to the sender may be regarded as a statement made in documentary form. However, in case of a dispute, it may often happen that the sender will maintain that it was not he or she who sent the statement, and that his or her email or phone was used by someone else without the knowledge and consent of the sender. The Law does not answer whether in such a situation it will be enough to prove that the email or the phone number that was used for making the statement was earlier used by the sender, or whether it will be necessary to prove that it was in fact the sender who sent the statement this time.
These questions will have to be answered by the court. It may be the case that the court will require to establish that it was the sender who used his or her email in this particular situation. If the interpretation of the provisions goes this way, the idea of simplifying and speeding up commercial relations will be lost. So the answer to the question whether this time the Law is “catching up” is still open.