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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?
The award must be in writing and signed by the arbitrators (the signatures of the majority of all members of the arbitral tribunal will suffice, provided that the chair or another arbitrator records on the award the reason for any omitted signature). The award should also include the date on which it was rendered and the seat of the tribunal. Unless otherwise agreed by the parties, the tribunal must substantiate the award (ie, state the reasons on which it is based). Apart from proceedings for the setting aside of an arbitral award or a declaration on its existence or non-existence, there is no review mechanism under Austrian law.
Timeframe for delivery
Are there any time limits on delivery of the award?
Unless the parties have agreed otherwise, there are no time limits on delivery of an award.
Does the law impose limits on the available remedies? Are some remedies not enforceable by the court?
There exist no specific limits on the remedies available. In general, the enforcement must be in accordance with the applicable enforcement treaties and law and the remedies must not violate public policy.
What interim measures are available? Will local courts issue interim measures pending constitution of the tribunal?
Parties can request interim relief from both the national courts and arbitral tribunals. An arbitral tribunal is not limited to a set of enumerated interim remedies; however, the requested remedies should be compatible with Austrian enforcement law, as the courts will enforce the measure of protection under Austrian law which is closest to that ordered by the arbitral tribunal.
Section 585 of the Code of Civil Procedure explicitly declares that it is not incompatible with an arbitration agreement for a party to petition the courts for an interim or protective measure and for the courts to grant such a measure before or during arbitral proceedings. The enforcement of interim measures lies within the competence of the courts.
Can interest be awarded?
At what rate?
Under Austrian (substantive) law, statutory interest of civil claims is 4% per year pursuant to Section 1,000 of the Civil Code. For business-related legal transactions between companies, the default interest rate is 9.2% over the basic interest rate (as published by the Austrian National Bank) applied for late payment of outstanding debts in accordance with Section 456 of the Commercial Code. Compound interests governed by Section 1,000(2) of the Civil Code amount to 4% per year.
Is the award final and binding?
Yes. Recourse against an award (including recourse against awards concerning the tribunal’s jurisdiction) may be made only in an application to set aside the award. A request to determine the existence or non-existence of an award is possible if the applicant shows that it has a legitimate legal interest in such a declaration.
What if there are any mistakes?
Arbitrators can correct clerical mistakes and typographical and mathematical errors in an award within the time set out in Section 610 of the Code of Civil Procedure. The correction can be made at the request of the party or ex officio. Where the parties seek interpretation of certain parts of the award, they can request the tribunal to provide respective explanations. Where claims have been asserted but not decided by the award, the parties can request that the arbitral tribunal issue an additional award.
Can the parties exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?
In general, awards are not subject to appeal, unless the parties provide for measures of appeal in their arbitration agreement. The Code of Civil Procedure provides for an application to set aside an award as the only recourse (including recourse against awards concerning the tribunal’s jurisdiction). With the exception of objective arbitrability and violations of substantive public policy, the grounds for setting aside an award can be waived after the award has been rendered.
What is the procedure for challenging awards?
An application to set aside an award must be filed with the Supreme Court, with no possibility of a further appeal. The application to set aside an award must be filed within three months of receipt of the arbitral or additional award.
On what grounds can parties appeal an award?
Section 611 of the Code of Civil Procedure provides an exhaustive list of grounds for challenging an award. A party can file an application to set aside an arbitral award on the following grounds:
- a valid arbitration agreement does not exist, the arbitral tribunal has denied its jurisdiction despite the existence of a valid arbitration agreement or a party was unable to conclude the arbitration agreement because of its status or lack of capacity;
- a party was not given proper notice of the appointment of arbitrators or of the proceedings or was otherwise unable to present its case;
- the arbitral tribunal rendered an award on a dispute not covered by the arbitration agreement or raised by the parties or made decisions on matters which were not subject to the arbitration agreement or claimed by the parties;
- the arbitral tribunal was not constituted or composed in accordance with contractual or statutory provisions;
- the arbitral proceedings were conducted in a way that violated Austrian public policy or the award itself violates public policy;
- the matter in dispute is not arbitrable under Austrian law;
- conditions are present whereby a request may be made for a court judgment to be set aside and the case to be reopened by means of a claim of revision in accordance with Sections 530(1)(1) to (5) of the Code of Civil Procedure (eg, when the award is based on false testimony or a criminal verdict that was subsequently lifted by the competent authority).
Pursuant to Section 612 of the Code of Civil Procedure, a party may request a declaration on the existence or non-existence of an arbitral award if it shows that it has a legitimate legal interest in such a declaration.
What steps can be taken to enforce the award if there is a failure to comply?
A party can request the enforcement of an award before the state courts. Domestic arbitral awards are equivalent to domestic court judgments. As such, they can be directly enforceable before the local courts in accordance with the Enforcement Act. Foreign awards are enforceable under the New York Convention or other bilateral or multilateral treaties and must first be declared enforceable.
The party requesting the enforcement of an arbitral award must submit the respective request, including either an authenticated original or a duly certified copy of the award. The original arbitration agreement (or a certified copy thereof) must be submitted only if requested by the court.
Can awards be enforced in local courts?
How enforceable is the award internationally?
Austria is a party to various treaties concerning the recognition and enforcement of arbitral awards. Most notably, it is a signatory state to the New York Convention.
To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
States can raise the immunity defence in relation to sovereign assets, but they do not enjoy immunity against the enforcement of an award with regard to their commercial assets.
Are there any other bases on which an award may be challenged, and if so, by what?
An award can be set aside on the basis of Section 611 of the Code of Civil Procedure. Further, a party can request a declaration on the existence or non-existence of an arbitral award if it can show that it has a legitimate legal interest in such a declaration pursuant to Section 612 of the code.
How enforceable are foreign arbitral awards in your jurisdiction?
Foreign awards are enforceable under the New York Convention or other bilateral or multilateral treaties. To date, the enforcement of foreign awards in Austria has not presented a problem.
Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
Challenge proceedings do not automatically stay enforcement proceedings; rather, the party seeking such measures must file a respective application with the state court. The enforcement of foreign awards that have already been set aside must be assessed based on the specific case. For instance, the enforcement of set-aside awards is explicitly mentioned in Article V of the New York Convention and Article IX of the European Convention on International Commercial Arbitration.
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