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National arbitration laws What legislation applies to arbitration in your jurisdiction? Austria has a long tradition of arbitration, with the oldest codified laws dating back some 250 years. Provisions on arbitration were also included in the first Austrian Code of Civil Procedure in 1895. Since then, there have been regular revisions of the arbitration law, thus ensuring a modern and arbitration-friendly legal environment.
Most notably, on July 1 2006 a comprehensive revision of Austrian arbitration law came into force. It is based on the United Nations Commission on International Trade Law (UNCITRAL) Model Law and governs all arbitrations seated in Austria that have been initiated on or after the date of its entry into force. The law is set out in Sections 577 to 618 of the Code of Civil Procedure.
Due to Austria’s location at the centre of Europe and its longstanding tradition of arbitration, a growing number of international parties choose Austria as the seat of arbitration, often opting for institutional arbitration. The main Austrian international arbitration body – the Vienna International Arbitral Centre (VIAC) – is one of Europe’s leading arbitral institutions. Benefitting from Austria’s modern arbitration law, a comprehensive body of case law and a convenient location, the VIAC has administered more than 1,300 proceedings since its inception in 1975 and has a steadily increasing caseload.
Mandatory laws Are there any mandatory laws? Austrian arbitration law is guided by the principle of party autonomy. Thus, there are only a few mandatory legal provisions, including:
- the right to be heard (Code of Civil Procedure Section 594(2));
- the principle of equal treatment (Code of Civil Procedure Section 594(2));
- the parties’ rights to representation (Code of Civil Procedure Section 594(4));
- rules on objective arbitrability (Code of Civil Procedure Section 582);
- formal requirements for an arbitration agreement (Code of Civil Procedure Section 583);
- special provisions relating to consumers and labour law matters (Code of Civil Procedure Sections 617 and 618);
- the ability to apply to the courts for an interim measure (Code of Civil Procedure Section 585);
- the competence of the arbitral tribunal to rule on its own jurisdiction (Code of Civil Procedure Section 592); and
- certain provisions for setting aside an award (Code of Civil Procedure Section 611).
New York Convention Is your country a signatory to the New York Convention? If so, what is the date of entry into force? Austria is a signatory to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The New York Convention was ratified on May 2 1961 and entered into force on July 31 1961.
Are there any reservations to the general obligations of the convention? There are currently no reservations in place. An initial reservation made under Article I(3) of the New York Convention was withdrawn on February 25 1988. Austrian courts recognise and enforce foreign arbitral awards in accordance with the terms of the New York Convention.
Treaties and conventions What other treaties and conventions in relation to arbitration is your jurisdiction party to? Austria is party to a number of multilateral conventions in relation to arbitration, including:
- the Geneva Protocol on Arbitration Clauses 1923;
- the Geneva Convention on the Execution of Foreign Arbitral Awards 1927; and
- the European Convention on International Commercial Arbitration 1961.
Moreover, Austria has signed several bilateral agreements relating to the recognition and enforcement of arbitral awards, including those with:
- the Soviet Union (1955), now applicable to Russia (BGBl 193/1956);
- Germany (1959; BGBl 105/1960);
- Yugoslavia (1960), now applicable to Bosnia-Herzegovina, Croatia, Kosovo, Macedonia, Montenegro, Serbia and Slovenia;
- Switzerland (1960; BGBl 125/1962);
- Belgium (1961; BGBl 287/1961); and
- Liechtenstein (1975; BGBl 114/1975).
Austria has also signed a number of multilateral agreements providing for investor-state arbitration, such as the Convention on the Settlement of Investment Disputes between States and Nationals of other States 1965 and the Energy Charter Treaty 1991. Likewise, Austria has signed more than 60 bilateral investment agreements providing for arbitration as a means of dispute settlement between investors and the state.
UNCITRAL Has your jurisdiction adopted the UNCITRAL Model Law? Austrian arbitration law is based on the UNCITRAL Model Law and all of its main features are mirrored in the Austrian legislation.
However, there are a number of minor differences. For instance, in contrast to the UNCITRAL Model Law, Austrian law makes no distinction between national and international arbitrations or between commercial and non-commercial arbitrations. Further, under Austrian law, procedural defects lead to the setting-aside of the arbitral award only if they violate Austrian procedural public policy. Moreover, unlike the UNCITRAL Model Law, Austrian law provides that an arbitration agreement between an entrepreneur and a consumer can be effectively concluded only after the dispute has arisen. Austrian arbitration law also includes special provisions concerning consumer and labour law-related matters.
Reform Are there any impending plans to reform the arbitration laws in your jurisdiction? At the moment, no imminent reforms are planned. However, Austrian arbitration laws are constantly monitored by leading practitioners and were last revised in 2013. This revision provided that all judicial activity relating to arbitral proceedings falls within the exclusive jurisdiction of the Supreme Court as the first and final instance.
Validity What are the validity requirements for an arbitration agreement? Substantively, Austrian law requires that an arbitration agreement identify the parties and clearly express their intention to submit a specific dispute to arbitration. The agreement can relate to both existing and future disputes, but must be made in relation to a pre-defined legal relationship.
Formally, an arbitration agreement must be in writing. This can be done in a written document signed by both parties or in letters, faxes, emails or other forms of communication that prove the existence of the agreement.
Enforcement of agreements How are arbitration agreements enforced in your jurisdiction? What is the attitude of the national courts towards arbitration agreements? For many years, Austrian courts have taken a pro-arbitration stance generally aimed at upholding the validity of arbitration agreements.
In contrast to other jurisdictions, Austrian law does not curtail the arbitral tribunal’s competence-competence. Thus, the state court before which an action is brought in a matter which is the subject of an arbitration agreement must reject the claim, unless the defendant makes submissions on the substance of the dispute or orally pleads before the court without making an according objection. This does not apply if the court establishes that the arbitration agreement does not exist or cannot be performed. While such proceedings are pending before a court, arbitral proceedings may nevertheless be commenced or continued and an award may be made (Code of Civil Procedure Section 584(1)). Similarly, while arbitral proceedings are pending, no further action may be brought before a court or an arbitral tribunal concerning the asserted claim (Code of Civil Procedure Section 584(3)).
Consolidation Can an arbitral tribunal with its seat in your jurisdiction consolidate separate arbitral proceedings under one or more contracts, and, if so, in what circumstances? Austrian law does not explicitly provide for the consolidation of arbitral proceedings. However, the parties and the arbitral tribunal can freely agree on consolidating proceedings.
The Vienna International Arbitral Centre Rules of Arbitration and Conciliation (‘Vienna Rules’) specifically address the consolidation of proceedings. Article 15(1) of the Vienna Rules provides that two or more arbitral proceedings may be consolidated if the parties agree to the consolidation or the same arbitrators were appointed in all of the proceedings. In addition, the seat of arbitration needs to be the same in all of the arbitration agreements on which the claims are based.
Choice of law How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be? The parties are free to choose any statutory provisions or rules of law as substantive law of the dispute. Failing an explicit or implied choice by the parties, the arbitral tribunal shall apply the substantive law that it considers appropriate (Code of Civil Procedure Section 603). In deviation from the United Nations Commission on International Trade Law Model Law, Austrian arbitration law follows a voie directe approach, providing the arbitral tribunal with absolute flexibility when determining the applicable law. Typically, the arbitral tribunal will draw on accepted conflict of law rules, such as the centre of gravity test.
Separability Are there any provisions on the separability of arbitration agreements? Austria refrained from expressly including the separability doctrine in the 2006 revision of the Austrian arbitration law. Nevertheless, the doctrine is accepted in Austria in both case law and academic writing. Thus, it is generally accepted that the invalidity of the main contract does not automatically render the arbitration agreement invalid.
Multiparty agreements Are multiparty agreements recognised? While recognising multiparty agreements, Austrian law does not provide detailed regulations on multiparty proceedings; rather, it merely addresses the appointment of arbitrators in multiparty disputes. Section 587(5) of the Code of Civil Procedure sets out that if the parties fail to jointly nominate an arbitrator within four weeks, any party to the arbitration may request the court to appoint the arbitrator.
The Vienna Rules have more detailed provisions on multiparty proceedings, setting out rules as to the constitution of the arbitral tribunal in multiparty proceedings (Article 18), the advance on costs (Article 42) and the service of written submissions (Article 42).
Criteria for arbitrators Are there any restrictions? There are no requirements as to the age, qualification or profession of an arbitrator. Austrian law merely requires arbitrators to:
- be impartial and independent;
- have full legal capacity (ie, the power to make legally binding commitments); and
- fulfil the requirements set out in the arbitration agreement.
Aside from these requirements, the only restrictions stipulated by Austrian law are those found in certain rules governing professions, most notably that active Austrian judges are prohibited from acting as arbitrators in Austria.
Contractual stipulations What can be stipulated about the tribunal in the agreement? The parties are free to agree on the number of arbitrators. If the parties have decided on an even number of arbitrators, the arbitrators shall appoint a further person as chairman (Code of Civil Procedure Section 586). Likewise, the parties are free to agree on the appointment procedure (Code of Civil Procedure Section 587).
Moreover, the parties can impose any number of additional requirements on the arbitrators, such as particular qualifications or a particular professional background.
Default requirements Are there any default legal requirements as to the selection of a tribunal - for example, concerning the number of arbitrators or their characteristics? Section 586(2) of the Code of Civil Procedure stipulates that in the absence of an agreement by the parties, the number of arbitrators will be three. No default requirements are provided as to the characteristics of arbitrators.
Challenging the appointment of an arbitrator Can the appointment of an arbitrator be challenged? Can an arbitrator be disqualified? What is the procedure for this? Pursuant to Section 588 of the Code of Civil Procedure, an arbitrator can be challenged if there are justifiable doubts as to his or her impartiality or independence, or if he or she does not possess the qualifications agreed on by the parties. A party-appointed arbitrator can be challenged by the party that appointed him or her only for reasons that become known to the appointing party after the appointment is made.
The arbitrator must disclose any circumstances that are likely to give rise to doubts as to his or her impartiality or independence, or which conflict with the agreement of the parties.
The parties are free to agree on a procedure for challenging an arbitrator. In the absence of such agreement, Section 589(2) of the Code of Civil Procedure sets out that the challenging party must submit a written statement to the arbitral tribunal describing the grounds for the challenge. This statement must be submitted within four weeks after the party has become aware of such grounds. The entire arbitral tribunal, including the challenged arbitrator, then decides on the challenge, except the challenged arbitrator resigns or the other party agrees to the challenge.
If the challenge is unsuccessful, Section 589(3) of the Code of Civil Procedure provides that within four weeks after receiving the arbitral tribunal’s decision, the challenging party can request the Supreme Court to decide on the challenge. While the request is pending, the arbitral tribunal – including the challenged arbitrator – may continue the proceedings and render an award.
Article 20 of the Vienna International Arbitral Centre (VIAC) Rules of Arbitration and Conciliation (‘Vienna Rules’) sets out the procedure for challenging arbitrators in arbitral proceedings under the auspices of the VIAC, providing that a party’s challenge of an arbitrator must be submitted to the VIAC secretariat within 15 days of the date that the challenging party became aware of the grounds for the challenge. If the challenged arbitrator does not resign, the VIAC board decides on the challenge, after the secretary general of the VIAC has gathered comments from the challenged arbitrator and the other parties.
Jurisdictional objections How should an objection to jurisdiction be raised? Section 592 of the Code of Civil Procedure stipulates that an objection to jurisdiction should be raised no later than the first pleading on the substance of the dispute. However, participating in the appointment of an arbitrator does not preclude the party from raising an objection to jurisdiction.
A plea that the arbitral tribunal is exceeding its jurisdiction must be raised as soon as the matter which is alleged to be beyond the scope of its authority is made the subject of a request for relief.
Replacement of an arbitrator Why and how can an arbitrator be replaced? An arbitrator can be replaced if:
- the parties agree on removal of the arbitrator;
- the arbitrator resigns;
- the arbitrator becomes unable to perform his or her functions or fails to act within a reasonable time; or
- the arbitrator has been successfully challenged.
If an arbitrator’s mandate terminates early, a substitute arbitrator will be appointed in accordance with the rules that applied to the appointment of the replaced arbitrator (Code of Civil Procedure Section 590).
Powers and obligations What powers and obligations do arbitrators have? Austrian law confers various powers on the arbitral tribunal, such as the power to:
- rule on its own jurisdiction (Code of Civil Procedure Section 592);
- conduct the arbitral proceedings in any manner deemed appropriate if the parties have not agreed otherwise or the law stipulates otherwise (Code of Civil Procedure Section 594); and
- order interim or protective measures (Code of Civil Procedure Section 593).
However, the arbitral tribunal is obliged to conduct the proceedings according to the parties’ agreement, complying with due process and remaining independent and impartial throughout the proceedings (Code of Civil Procedure Section 594).
Liability of arbitrators Are arbitrators immune from liability? No. Pursuant to Section 594(4) of the Code of Civil Procedure, arbitrators who do not fulfil their obligations or do not fulfil them in a timely manner can be held liable by the parties for all damages caused by their wrongful refusal or delay. Under Austrian law, as a general rule an arbitrator can be held liable only if the award has been set aside on grounds for which the arbitrator is at fault.
Communicating with the tribunal How do the parties communicate with the tribunal? Austrian law does not expressly regulate how the parties and the arbitral tribunal should communicate. During the course of the proceedings it is common to communicate by means of telecommunications (eg, email and telephone). If the parties have not agreed to hold an oral hearing, the arbitral tribunal decides whether to hold oral hearings or conduct the proceedings solely in writing (Code of Civil Procedure Section 598). Section 580 of the Code of Civil Procedure addresses the delivery and receipt of written communications, implementing Article 3(1) of the United Nations Commission on International Trade Law Model Law, with a few deviations.
Reaching decisions Is unanimous agreement of the tribunal required? If there is disagreement, does the will of the majority suffice? What are the implications of this? Decisions are made by a majority of the arbitral tribunal. If an arbitrator refuses to participate in the decision-making process for no justified reason, the remaining arbitrators can proceed without him or her (Code of Civil Procedure Section 604).
Arbitrability Are there any disputes incapable of being referred to arbitration? Austrian law provides wide scope as to the arbitrability of claims. As provided by Section 582(1) of the Code of Civil Procedure, any claim involving an economic interest within the jurisdiction of the courts may be subject to an arbitration agreement. This encompasses all monetary claims and all claims based on a proprietary legal relationship. Subject matters within the jurisdiction of regulatory, administrative and supervisory authorities cannot be referred to arbitration.
However, there are numerous exceptions to this rule. Section 582(1) of the Code of Civil Procedure stipulates that all matters of family law and certain matters of tenancy law cannot be subject to an arbitration agreement. Arbitration agreements between an entrepreneur and a consumer can be validly concluded only if the dispute has already arisen (Code of Civil Procedure Section 617). Likewise, future disputes in employment matters cannot be submitted to arbitration.
Can the arbitrability of a dispute be challenged? The arbitrability of the dispute can be challenged before the arbitral tribunal (Code of Civil Procedure Section 592).
If the subject matter is not arbitrable under Austrian law and an arbitral award has been issued, the award can be set aside in accordance with Section 611(2)(7) of the Code of Civil Procedure.
Jurisdiction and competence-competence Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence? Section 592(1) of the Code of Civil Procedure enshrines the competence-competence principle in Austrian law. After arbitral proceedings have been initiated, only the arbitral tribunal can decide on its jurisdiction.
While arbitral proceedings are pending, a state court must reject claims brought before it that are subject to an arbitration agreement (Code of Civil Procedure Section 584).
Starting an arbitration proceeding What is needed to commence arbitration? Austrian arbitration law provides no specific rules as to the commencement of an arbitration proceeding.
In ad hoc arbitrations, the arbitral proceeding is typically commenced by sending a request for the appointment of an arbitrator to the other party. Pursuant to Section 587(4) of the Code of Civil Procedure, the request must state what claim is being asserted and which arbitration agreement the requesting party refers to. The request is considered to interrupt statutes of limitations at the time that the other party receives the request.
Institutional arbitral proceedings are usually commenced by filing a statement of claim with the institution. Statutes of limitations are typically interrupted when the institution receives the statement of claim.
Limitation periods Are there any limitation periods for the commencement of arbitration? There are no specific limitation periods for the commencement of arbitration under Austrian law. However, the parties are free to agree on a limitation period in the arbitration agreement.
Procedural rules Are there any procedural rules that arbitrators must follow? The arbitral tribunal must follow the rules of procedure agreed on by the parties. Failing such agreement, the arbitral tribunal can proceed in any manner that it deems appropriate. In any event, the arbitrators must follow the mandatory provisions of Austrian arbitration law (eg, granting each party the right to be heard).
Dissenting arbitrators Are dissenting opinions permitted under the law of your jurisdiction? Austrian law does not expressly permit dissenting opinions, but does provide for decisions to be made by a majority vote and stipulates that the presiding arbitrator must provide reasons for any omitted signature on the award. Commentators argue that this can be regarded as an implicit admittance of dissenting opinions under Austrian law.
In a similar vein, the Supreme Court recently acknowledged that dissenting opinions are permissible in arbitrations under the International Chamber of Commerce Rules and held that a dissenting opinion need not be submitted in enforcement proceedings in Austria.
Judicial assistance Can local courts intervene in proceedings? Pursuant to Section 578 of the Code of Civil Procedure, Austrian courts can intervene only in very limited circumstances and on the request of a party. In particular, the court may act on a party’s request:
- to grant an interim or protective measure (Code of Civil Procedure Section 585);
- if the parties cannot agree on a sole arbitrator (Code of Civil Procedure Section 587(2)(1));
- if a party fails to appoint an arbitrator (Code of Civil Procedure Section 587(2)(4));
- if several parties fail to jointly appoint an arbitrator (Code of Civil Procedure Section 587(5));
- if the appointment cannot be made for other reasons or cannot be made in reasonable time (Code of Civil Procedure Section 587(6));
- if a challenge to an arbitrator is unsuccessful and the challenging party requests the court to decide the challenge (Code of Civil Procedure Section 589(3)); or
- if an arbitrator’s mandate has been terminated and the arbitrator does not resign or the other party does not agree to the termination (Code of Civil Procedure Section 590(2)).
Moreover, the arbitral tribunal may request judicial assistance from Austrian courts to:
- enforce an interim or protective measure (Code of Civil Procedure Section 593); or
- gather certain evidence for which the arbitral tribunal has no authority – that is, examining witnesses, compelling witnesses to attend the hearing, ordering document disclosure and requesting legal assistance by a foreign court (Code of Civil Procedure Section 602).
Can the local courts assist in choosing arbitrators? If a party fails to appoint an arbitrator or the parties fail to agree on a sole arbitrator, either party may request the court to choose an arbitrator (Code of Civil Procedure Section 587(2)(1) and (4)). Similarly, the court may appoint an arbitrator on the request of a party if several parties fail to jointly appoint an arbitrator or if the appointment cannot be made for other reasons (Code of Civil Procedure Sections 587(5) and (6)).
What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration? Can the courts compel parties to arbitrate? Can they issue subpoenas to third parties? Section 600(2) of the Code of Civil Procedure governs default by a respondent in arbitral proceedings. In the absence of a contrary agreement by the parties, the arbitral tribunal will proceed with the arbitration without treating the respondent’s failure in itself as an admission of the claimant’s allegations. Thus, Austrian law does not allow a decision by default; nor can the courts compel parties to arbitrate.
Pursuant to Section 602 of the Code of Civil Procedure, the arbitral tribunal can request the courts to provide judicial assistance through judicial acts for which the arbitrators have no authority. This is not limited to evidentiary acts, but encompasses any form of judicial assistance, including issuing subpoenas to third parties. Moreover, unlike the United Nations Commission on International Trade Law Model Law, Austrian arbitration law explicitly allows Austrian courts to request a foreign court or authority to perform judicial acts.
Third parties In what instances can third parties be bound by an arbitration agreement or award? Austrian arbitration law does not explicitly provide for the extension of an arbitration agreement to third parties.
In the past, Austrian courts have been reluctant to extend the scope of an arbitration agreement to non-signatories. However, arbitration agreements have been extended to legal successors and third-party beneficiaries. Thus far, there have been no court decisions on the application of the group of companies doctrine and with regard to the existing body of case law, its seems highly unlikely that the Supreme Court would uphold an application of the doctrine.
Default language and seat Unless agreed by the parties, what is the default language and location for arbitrations? In the absence of an agreement by the parties, the arbitral tribunal will determine the language to be used in the proceedings (Code of Civil Procedure Section 596).
Likewise, failing an agreement by the parties, the seat will be determined by the arbitral tribunal, having regard to the circumstances of the case, including the convenience of such place for the parties (Code of Civil Procedure Section 595(1)).
Gathering evidence How is evidence obtained by the tribunal? Pursuant to Section 599(1) of the Code of Civil Procedure, the arbitral tribunal has broad discretion as to the obtaining of evidence. It is authorised to rule on the admissibility of the taking of evidence, to carry out such taking of evidence and to freely evaluate the result thereof.
The arbitral tribunal can also request the courts to assist in gathering evidence for which the arbitral tribunal has no authority (Code of Civil Procedure Section 602).
What kinds of evidence are acceptable? It is for the arbitral tribunal to decide on the admissibility of evidence (Code of Civil Procedure Section 599(1)). The tribunal is thus not bound to the means of evidence admissible in state court proceedings.
Confidentiality Is confidentiality ensured? Although Austrian arbitration law does not contain an express stipulation of confidentiality, the proceedings and hearing are not public. Commentators note that Austrian law allows for the argument that a confidentiality obligation is implied by law. However, to ensure that documents produced in the course of the proceedings are kept confidential, the parties should include a confidentiality obligation in the arbitration agreement.
Can information in arbitral proceedings be disclosed in subsequent proceedings? Austrian law does not explicitly stipulate confidentiality in arbitral proceedings. Thus, information might be disclosed in subsequent proceedings if the parties have not explicitly or implicitly agreed on a duty of confidentiality.
Ethical codes What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction? Members of the Austrian Bar are subject to the Austrian lawyers’ code of conduct and must comply with it when acting in Austria or abroad. However, the code of conduct contains no specific regulations regarding arbitral proceedings.
As provided by the charter of core principles of the European legal profession and the Code of Conduct for European lawyers (CCBE), Austrian professional standards also apply to lawyers from the European Union participating in arbitral proceedings seated in Austria (CCBE Articles 4(1) and 5(4)).
Estimation & allocation How are the costs of arbitration proceedings estimated and allocated? Section 609 of the Code of Civil Procedure regulates cost issues in arbitral proceedings. Unless the parties have agreed otherwise, the arbitral tribunal will decide on the obligation to reimburse costs and determine the specific amount. In making its decision, the arbitral tribunal will have regard to the circumstances of the case, in particular the outcome of the proceedings. The decision on costs will be made in the form of an award.
Security for costs Can the national court or tribunal order security for costs under the law in your jurisdiction? Austrian arbitration law does not expressly provide for the arbitral tribunal’s authority to order security for costs. Whether security for costs can be ordered as an interim or protective measure in accordance with Section 593 of the Code of Civil Procedure is the subject of controversy.
However, the parties are free to agree on vesting the arbitral tribunal with such authority. In practice, this is frequently done by referring to institutional arbitration rules in the arbitration agreement, which often provide for the arbitral tribunal’s authority to grant security for costs.
Similarly, pursuant to Section 585 of the Code of Civil Procedure, a party may request the court to grant an interim or protective measure.
Requirements What legal requirements are there for recognition of an award? Must reasons be given for the award? Does the award need to be reviewed by any other body? Section 606 of the Code of Civil Procedure sets out the legal requirements for the recognition of an award:
- the award must be in writing;
- the award must be signed by the arbitrators, although the signatures of the majority of arbitrators suffices if reasons are given for the missing signature(s);
- the award must state the date that it was rendered; and
- unless the parties have agreed otherwise, the award must state the reasons on which it is based.
The award need not be reviewed by any other body.
Timeframe for delivery Are there any time limits on delivery of the award? There are no time limits on the delivery of an arbitral award under Austrian law.
Remedies Does the law impose limits on the available remedies? Are some remedies not enforceable by the court? From an Austrian law perspective, the available remedies are a matter of applicable substantive law. Provided that the remedy does not violate Austrian public policy, there are thus no restrictions in place as to the types of remedy available.
What interim measures are available? Will local courts issue interim measures pending constitution of the tribunal? Austrian law does not limit the types of interim measure available. Pursuant to Section 593(1) of the Code of Civil Procedure, the arbitral tribunal may order any interim measures that it deems appropriate. However, the interim measure must be ordered:
- in respect of the subject matter of the dispute; and
- if the enforcement of the claim would be frustrated or considerably impeded, or a risk of irreparable harm would arise, without the measure.
By way of example, interim measures may include the prohibition against selling specific assets or an order to furnish security.
Interim measures can be requested from either the courts or the arbitral tribunal. The parties can request interim measures from a court before or during arbitration proceedings (Code of Civil Procedure Section 585).
Interest Can interest be awarded? Yes. However, Austrian law perceives interest as a matter of applicable substantive law.
At what rate? Failing an agreement of the parties, Austrian substantive law – if applicable – determines interest at a basic percentage of 4% a year for contractual relationships and 9.2% a year above the base lending rate for commercial transactions (ie, contracts between non-consumers).
Finality Is the award final and binding? Austrian law stipulates that an arbitral award has a final and binding effect on the parties (Code of Civil Procedure Section 607).
What if there are any mistakes? Within four weeks of receiving the arbitral award, each party may request the arbitral tribunal to correct any errors in computation, clerical or typographical errors or errors of a similar nature (Code of Civil Procedure Section 610(1)(1)). Similarly, a party may request the arbitral tribunal to make an additional award as to claims asserted in the course of the proceedings but not disposed of in the award (Code of Civil Procedure Section 610(2)(3)). If agreed by the parties, the parties may also request the arbitral tribunal to explain certain parts of the award (Code of Civil Procedure Section 610(2)(2)).
The arbitral tribunal must decide on the request to correct or explain the award within four weeks and on the issuance of an additional award within eight weeks (Code of Civil Procedure Section 610(3)).
Can the parties exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide? In advance, the parties cannot validly waive their right to challenge the arbitral award. Grounds for challenging the award that relate to the public interest (ie, lack of objective arbitrability and violation of Austrian public policy) cannot be waived under any circumstances.
Appeal What is the procedure for challenging awards? With the latest amendment of Austrian arbitration law in 2013, proceedings for the setting aside of arbitral awards now fall within the exclusive jurisdiction of the Supreme Court. The Supreme Court acts as the only instance in such proceedings, thus not allowing any further appeal.
On what grounds can parties appeal an award? Section 611(2) of the Code of Civil Procedure sets out an exhaustive list of grounds on which the arbitral award may be challenged, which follows Article V of the New York Convention and Article 34 of the United Nations Commission on International Trade Law Model Law. The grounds are as follows:
- lack or invalidity of an arbitration agreement;
- lack of subjective arbitrability (ie, incapacity to conclude an arbitration agreement);
- violation of the right to be heard;
- the subject matter is beyond the scope of the parties’ agreement (decision ultra petita);
- failure in the constitution or composition of the arbitral tribunal;
- the conduct of proceedings violates Austrian public policy (procedural ordre public);
- the fulfilment of requirements for an action for revision (see Code of Civil Procedure Section 530);
- lack of objective arbitrability (ie, the matter in dispute is not arbitrable); and
- the award violates Austrian public policy (substantive ordre public).
Enforcement What steps can be taken to enforce the award if there is a failure to comply? Awards issued by an arbitral tribunal having its seat in Austria are directly enforceable in accordance with Article 1(16) of the Enforcement Act. The party intending to enforce the award must merely request enforcement authorisation from the competent local court, which is either the district court where the respondent has its seat or the district court where the enforcement is to be conducted (Enforcement Act Article 82).
Foreign awards must first be declared enforceable in Austria in line with Article 79(1) of the Enforcement Act. The party intending to enforce the award must provide the court with the original award or a certified copy thereof. The arbitration agreement must be presented only if so requested by the court. Having been granted a declaration of enforceability, the party can then request enforcement authorisation from the competent local court.
Can awards be enforced in local courts? Yes. Enforcement is usually straightforward. Local courts recognise and enforce foreign arbitral awards in accordance with the New York Convention.
How enforceable is the award internationally? Austria is party to the New York Convention and a number of other international conventions on the recognition and enforcement of arbitral awards. Thus, Austrian arbitral awards are easily enforceable internationally.
To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage? Enforcement of an arbitral award against a state is in general admissible. However, enforcement is possible only with regard to a foreign state’s commercial assets in Austria.
Are there any other bases on which an award may be challenged, and if so, by what? Aside from those grounds listed under Section 611(2) of the Code of Civil Procedure, a party can also request a declaration on the existence or non-existence of an arbitral award (Code of Civil Procedure Section 612). Such claim for a declaratory award requires a legal interest of the claimant – in particular, that its legal position is affected by the outcome of the arbitral proceedings. The provision was mainly introduced for parties that are unsure whether an arbitral tribunal decision can be qualified as an arbitral award or an expert determination.
How enforceable are foreign arbitral awards in your jurisdiction? Austrian courts have in the past shown a pro-enforcement approach towards foreign arbitral awards and enforce foreign arbitral awards in line with the New York Convention.
Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction? An award that is set aside in the country of origin may still be enforced in Austria. The Supreme Court has held that the setting aside of an award by the courts at the seat of arbitration on the grounds that it violates the seat’s public policy will not prevent its enforcement in Austria, provided that it is not incompatible with the Austrian legal order.
Rules and restrictions Are there rules or restrictions on third-party funders? Third-party funding is well established for arbitral proceedings seated in Austria. There are no specific rules or restrictions on third-party funders under Austrian arbitration law. In this context, it is noteworthy that contingency fees for lawyers are expressly forbidden by the Austrian lawyers’ code of conduct.
Class-action or group arbitration
Concept Is there a concept in your jurisdiction providing for class-action arbitration or group arbitration? If so, are there any limitations to the arbitrability of such claims or requirements that must be met before such claims may be arbitrated? Austrian arbitration law does not provide for class-action arbitration, as the concept of class action in general is unknown to the Austrian legal system.
Emerging trends Are there any hot topics or trends emerging in arbitration in your jurisdiction? Austria can be regarded as being at the forefront of the development of national arbitration statutes. The recent amendment providing for the exclusive jurisdiction of the Supreme Court for all judicial activity relating to arbitral proceedings further bolsters its position as a leading arbitration venue.