Dorozumiany wybór prawa. Glosa do wyroku Sądu Najwyższego z dnia 8 stycznia 2003 r., II CKN 1077/00, niepubli.
The tacit choice of law. A comment on the judgment of the Supreme Court of 8 January 2003, II CKN 1077/00

Summary/Abstract: In the commented judgment, the Polish Supreme Court found that there was a tacit (implied) choice of Polish law. The note discusses the nature of the tacit choice of law. Various factors which can point to tacit choice are presented (such as e.g. a choice of forum, incorporation in the contract of the specific provisions of the given legal system, using a particular, system-specific form, etc.). The authors argue that a real (as opposed to hypothetical) intent has to exist in order for a court to be able to conclude that a choice was made tacitly. Therefore, any objective factors present under the circumstances of the case (such as e.g. choice of court) can only indicate a potential existence of the parties’ intent to choose the applicable law, but are not conclusive themselves. The authors submit that in the commented judgment, the Supreme Court has drawn hasty conclusions and wrongfully adopted Polish law to the detriment of the foreign law, which should have been applied by operation of the rules of private international law.

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