More and more often, foreign clients of
KIEŁTYKA GŁADKOWSKI KG LEGAL take part in online hearings as a part of civil
lawsuits. This also applies to foreign witnesses in commercial proceedings
conducted for foreign clients and settled by the Polish civil courts.
The widespread use of remote (online)
questioning of witnesses results from a temporary change in the Polish civil
procedure, which adapted the practice of conducting court cases in the
realities of the pandemic. The proliferation of the practice of questioning
witnesses has created the standard practice of summoning foreign witnesses in
writing by document, which the Polish court delivers by conventional mail to
the witness’ address and summons the witness to participate in the online
hearing. The court in such a letter explains in great detail to the witness how
and when the witness is to connect to the court online.
Due to the fact that the court informs the
foreign witness in great detail about how the foreign witness is to connect
online with the Polish court using a computer, KIELTYKA GLADKOWSKI KG LEGAL
presents below the full content of the Polish Court’s summons and instructions.
It may turn out to be very helpful for
foreign readers doing business in Poland, because this type of summons is very
standard and is used in a very similar way by all Polish common courts.
The summons begins with the designation of
the court by which the summons is issued. Full text of the summons together
with instructions on the consequences of failure to appear online is presented
below:
Changes in the procedure in the Polish civil and administrative court proceedings under the Acts of May 14, 2020 and May 28, 2021 on the amendment of certain acts in the field of protective measures in connection with the spread of SARS-CoV-2 virus.
The epidemic caused by the Covid-19 virus has
significantly introduced changes in the search for safe solutions for
people-to-people contact. These changes also affected the courts and the mode
of court hearings, in order to ensure the greatest possible safety for the
parties to the proceedings and court employees. In this situation, the best way
to limit direct contact was the possibility of using electronic communication
methods.
Legal basis
Amendment to the Polish Act of March 2, 2020
on special solutions related to the prevention, counteraction and combating of
COVID-19, other infectious diseases and the emergencies caused by them,
implemented by two acts of May 14, 2020 and May 28, 2021, allowed for the
possibility of holding court hearings in Polish courts with using means of
distance communication. The change resulting directly from article 15 zzs1
of the Polish Act of 2 March 2020 allowed for the possibility of participating
in a remote hearing from a place other than the court, because until now the Polish
Code of Civil Procedure allowed for the possibility of conducting a remote
hearing, but the persons participating in it had to be present in the court
building. Pursuant to article 15zzs1 point 1 of the Polish Act of 2
March 2020, during the period of the epidemic threat or epidemic state
announced due to COVID-19 and within one year of the last of them being
recalled in cases examined under the provisions of the Polish Code of Civil
Procedure, court hearings or open sessions are held with the use of technical
devices enabling them to be carried out at a distance with the simultaneous
direct transmission of image and sound, except that the people participating in them
do not have to be in the court building, unless holding a hearing or a public
hearing without the use of the above devices causes excessive health risk to
the participants.[1]
Online
interrogation of a foreign witness by a Polish court in a commercial court case
– practical bullet points on the example of a specific witness summons.
The changes in the functioning of the
justice system caused by the COVID-19 have been ongoing since the first quarter
of 2020. The first of them were introduced in the Polish legal system at the
beginning of March 2020, and to date these regulations have already been
amended several times. The changes mainly concern court proceedings, the way in
which cases are dealt with, as well as the issue of questioning witnesses. The
present article will focus on the latter issue, in order to explain in detail
how a witness is summoned and examined by a Polish court.
In accordance with article 15 zzs1
of the Polish Act of March 2, 2020 on special solutions related to the
prevention, counteraction and combating of COVID-19, other infectious diseases
and crisis situations caused by them (hereinafter as the “Act”):
The Wall Street Journal recently described quirks in the U.S. Tax Treaty with Malta that became a popular topic in the legal advice sector.[1] In the said article, WSJ describes an offshore tax shelter (a tax regulation in Malta) which promises rich Americans they can avoid lots of capital-gains taxes by setting up pensions in Malta. This issue is not only American struggle with tax abuse. For instance, Poland has also signed an international tax treaty with Malta (Agreement between the Government of the Republic of Poland and the Government of Malta for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income signed in La Valetta on 7 January 1994)[2] and in 2020 the Treaty was amended due to the necessity of closing loopholes in the international (bilateral) tax system[3]. Moreover as a restoration of the Polish industry after COVID-19 pandemic, the Polish Government and the Ministry of Finance prepared the new Tax Act which shall prevent the change of the entity’s tax residence to the offshore tax shelter [4].
Before
we move to the tax abuse based on the U.S. bilateral tax treaty with Malta it
is advisable to start with Treaty’s provisions treatment.
U.S.
– MALTA TAX TREATY
The Treaty was done in 8 August 2008 and came into force in late 2010. As Jeffrey L. Rubinger wrote The Treaty contains very favorable provisions that can result in significant tax benefits to U.S. members of a Maltese pension. In order for such U.S. members to take advantage of these benefits, the pension must qualify as a resident of Malta under the Treaty and also satisfy the limitation on benefits (LOB) article of the Treaty. [5]In his article Rubinger enumerates the Treaty’s provisions that could become a victim of the interpretation tax abuse.
On 2 to 4 November 2021 KIELTYKA GLADKOWSKI KG LEGAL will take part in the virtual SPG 2021 Forum organised by R3 (Association of Business Recovery Professionals) SPG Forum (link) is a conference for trustees, restructuring experts and their employees.
During this 3-day event, our lawyers will have the opportunity to discuss the
practical issues, participate in workshops and network with peers.
Some of the topics discussed will be the current regulatory framework for
insolvency practitioners, key legal changes affecting the insolvency and
restructuring of people and companies, and the exclusion of directors, the FCA’s
guidelines for managers appointed or intended to be appointed by regulated
firms; panel sessions with representatives of the financial industry discussing
their experiences with the pandemic, recovery and new market trends; workshops,
during which it will be possible to look at issues related to the insolvency of
a real estate enterprise; workshop sessions during which the investigation and
prosecution of claims in insolvent real estate will be discussed in-depth; interactive
workshops, entirely devoted to the possibilities of the hotel business dealing
with the challenges of the pandemic.
