Internet domains, case II C 1091/04

November 22nd, 2008, Tomasz Rychlicki

The Regional Court for Warszawa-Mokotów in its judgment case file II C 1091/04 ruled that according to Article 3851 § 1 the Civil Code – CC – (in Polish: Kodeks Cywilny) of 23 April 1964, Journal of Laws (Dziennik Ustaw) No. 16, item 93, with subsequent amendments, the provisions of a contract concluded with a consumer, which have not been individually agreed with him, shall not be binding thereupon, if his rights and duties have been stipulated in conflict with public decency and in flagrant violation of his interest (wrongful contractual provisions). According to Article 3853 § 1 of the CC, in the case of doubt, the wrongful contractual provisions should be, in particular these which exclude the jurisdiction of the Polish courts, or have the case decided by a Polish or a foreign conciliatory court or another authority, or force a decision in the case to be made by the court which has no local competence. According to the court’s decisions, the obligatory referral of a domain name dispute to a court of arbitration is a wrongful contractual provisions. For this reason Article 23 of the Domain Names Regulations issued by NASK, does not relate to or is not binding for consumers.

22. In case a third party initiates a legal action in the Arbitration Court against the Subscriber claiming that the Subscriber has infringed the rights of that person by entering into or performing the Agreement, the Subscriber shall submit to that Arbitration Court a duly signed arbitration clause to the Arbitration Court in due time stated in the summon to sign this arbitration clause.

23. The non-signing of the arbitration clause specified above shall result in the termination of the Agreement three months after the time stated to sign this arbitration clause, and this time limit shall be shortened to the date of the expiry of the calculating period based on the Price List if this date occurs before the end of the three month-period after the time stated to sign this arbitration clause. If the NASK has been informed during the time period specified above by the Arbitration Court about the delivery of the signed arbitration clause to that Court, the Agreement shall not be terminated.

Consequently, the termination of the contract based on these provisions could be regarded as invalid. The court also noted that such provisions could be challenged even in the course of a professional trade, as affecting the principle of contractual freedom and the right to a court.

See also “Polish case law on domain names“.