Arbitration in employment disputes - de lege ferenda comments 15 years after arbitration clauses in employment relations were introduced in the civil procedure

The purpose of this paper is to analyse the existing model of employment arbitration in Poland in force since 2005. According to Article 1164 of the Code of Civil Procedure, arbitra¬tion clauses in employment disputes can only be established once a dispute has already arisen. In reality, this post-dispute voluntary regulation has no practical value and employment ar- bitration is an instrument used extremely rarely in Poland. On the basis of examination of applicable laws, the author shows that in given factual and legal circumstances a reasonable employee and a reasonable employer shall seldom have a cause to simultaneously agree to arbitrate an already existing dispute. By applying the com- parative method at the same time, the paper examines possible criteria of distinguishing categories of disputes, agreements, persons and other conditions that would permit a valid arbitration clause in employment agreements. In conclusion, the author demonstrates that, firstly, the existing voluntary post-dispute employment arbitration model in Poland is a fictitious one and requires reform and, sec- ondly, that both a full elimination of arbitration clauses in employment agreements and a full arbitration clause for all future disputes are too blunt a tool not taking into account the real needs and requirements of today’s employees and employers. The author calls for a more nu- anced regulation of employment arbitration in Poland.