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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.
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).
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).
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.
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).
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.
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