dr hab. Marcin Lemkowski | In Principle
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dr hab. Marcin Lemkowski
Construction market when there is a war abroad
contract, public procurement
The construction market is facing more challenges. After many problems associated with the pandemic, other major difficulties have arisen due to Russia’s war on Ukraine. This presents the second recent case of
affecting the economy. Although the construction sector did well in the pandemic crisis, this time the outlook is much more pessimistic. Thus the new reality requires a rapid response and search for solutions to mitigate numerous risks.
The public procurement market doesn’t need a special act for Covid or the Ukraine crisis
Special acts introduced in isolation from existing solutions distort good law. This can be seen in how the public procurement market in Poland has been affected by successive amendments to the Covid Special Act. Today a special act is unnecessary, and
provisions will suffice. Instead, it would be useful to amend the provision governing claims for a change in the amount or method of payment for public contracts.
Indexation of road and rail contracts
The rapid price increases for construction materials observed since the beginning of 2021 raises the question whether the indexation clause used in contracts for construction of roads and upgrading of rail lines in Poland will prove effective in practice. To make an assessment, we must understand the substance of the clause.
Changes in civil procedure: High hopes, some difficulties
already in force, litigation
An overhaul of Polish civil procedure was published on 6 August 2019. The amending act partly entered into force on 21 August, but most of the new rules apply from 7 November. What can we say so far about the new rules, what should be expected, and what are the worries?
Guarantee of payment or guarantee of withdrawal from contract?
real estate, contract
Art. 6491–6495 of the Civil Code is intended to ensure that the security in the form of a payment guarantee for construction works provided at the investor’s request secures timely payment of the contractor’s fee. However, one may suspect that in practice this instrument is used for a completely different purpose.
new provisions, litigation, public procurement
Chapter X of the draft new Public Procurement Law (Art. 620–655) obliges the contracting authority and the contractor to conduct a mandatory conciliation procedure. While the very idea of settlement of disputes deserves full support, the proposed detailed solutions raise serious doubts under the Polish Constitution and EU law.
Litigation due to increasing electricity prices
Changing energy prices observed in the last few months on the Polish Power Exchange (TGE) are causing disputes between energy suppliers and customers. Suppliers are raising prices unilaterally, the buyers respond by terminating their agreements, and the first cases are being heard in the courts. The large amount of uncertainty on the market is hindering the signing of agreements for the future. Even large and experienced businesses are finding this new situation daunting.
The practice of obtaining a predicate ruling requires reform
Pursuing compensation from the State Treasury for loss caused by issuance of an unlawful judgment is predicated on obtaining a finding in an earlier proceeding that the judgment was unlawful. But the regulations governing how to obtain such a predicate ruling generate serious doubts.
It’s possible to defend effectively against contractual penalties
This is the conclusion flowing from a non-final judgment issued by the Poznań Regional Court on 2 February 2017 in a case involving one of the largest infrastructure projects in Poland, completed in December 2016.
Courts make mistakes too
Losses caused by human errors should be made up. But there are fields where it is particularly difficult to obtain damages to redress mistakes.
Contractual penalties: Theory and reality
Many contractors, including those involved in public projects carried out under the Public Procurement Law, lose sleep over the theoretically harmless instrument provided for in Civil Code Art. 483 and 484. Contractual penalties are reserved for all manner of breaches of contract and in huge amounts. The time has to come to change that.
Poland’s rules of civil procedure require the parties to present all their evidence at the very beginning of the case. This is supposed to expedite the proceedings. But is it counterproductive?