National arbitration laws
What legislation applies to arbitration in your jurisdiction?
Both domestic and international arbitration proceedings are governed by Sections 577 et seq of the Code of Civil Procedure.
Are there any mandatory laws?
Respecting the principle of party autonomy, Austrian arbitration law contains a limited number of mandatory legal provisions. For example, Section 588 of the Code of Civil Procedure sets out the requirement for arbitrators to be impartial, while Section 594(2) provides for the fair and equal treatment of all parties and their right to be heard.
New York Convention
Is your country a signatory to the New York Convention? If so, what is the date of entry into force?
Yes, Austria is a signatory to the New York Convention. It acceded to the convention on 2 May 1961 and the treaty entered into force on 31 July 1961.
Are there any reservations to the general obligations of the convention?
No, Austria withdrew the reciprocity reservation made on accession to the convention by notifying the UN secretary general on 25 February 1988.
Treaties and conventions
What other treaties and conventions in relation to arbitration is your jurisdiction party to?
Austria has also adopted:
- the European Convention on International Commercial Arbitration 1961;
- the Convention on the Settlement of Investment Disputes between States and Nationals of Other States 1965;
- the Energy Charter Treaty; and
- a number of bilateral agreements.
Has your jurisdiction adopted the UNCITRAL Model Law?
In 2006 a new arbitration law came into effect comprehensively amending the old law on arbitration. It was not codified in a separate act, but continues to be part of the Code of Civil Procedure. The main purpose of this revision was to create a modern arbitration law which incorporates the principal features of the UNCITRAL Model Law 2006. Notwithstanding some distinctions, the Code of Civil Procedure provisions governing arbitration proceedings were aligned with the UNCITRAL Model Law.
Are there any impending plans to reform the arbitration laws in your jurisdiction?
The Austrian arbitration law was comprehensively amended in 2006, followed by a further amendment in 2013 which sought to improve the efficiency of state court proceedings relating to arbitration. The amendments provide, among other things, that proceedings for setting aside arbitral awards now fall within the exclusive jurisdiction of the Supreme Court as the first and final instance.
What are the validity requirements for an arbitration agreement?
Arbitration agreements must be set out in writing and clearly express the intention of both parties to submit a dispute to arbitration. They may be concluded by a separate agreement or included as an arbitration clause within a contract.
Arbitration agreements must either be signed by the parties to the agreement or contained in correspondence between the parties which provides a record of the agreement (eg, letters, emails or other means of communication). A reference in a contract to another document containing the arbitration clause amounts to a valid arbitration agreement, provided that this reference incorporates the separate document as part of the contract.
Arbitration agreements must specify that all or certain disputes that may arise in respect of a defined legal relationship – whether contractual or not – are to be resolved by arbitration. Thus, without a defined legal relationship, general arbitration agreements which refer all future disputes between the parties to arbitration, regardless of their origin or nature, are null and void.
Special provisions apply with regard to consumer or employment-related matters. For instance, an arbitration agreement between an entrepreneur and a consumer can be effectively concluded only after a dispute has arisen.
Enforcement of agreements
How are arbitration agreements enforced in your jurisdiction? What is the attitude of the national courts towards arbitration agreements?
It is generally acknowledged that the Austrian courts are arbitration friendly and respect and enforce arbitration agreements. If an arbitration agreement is binding and capable of being performed, a national court will dismiss a claim brought before it which deals with a matter that is subject to the arbitration agreement. Once arbitral proceedings have been commenced, no claim concerning the same subject matter may be brought before a national court (unless the arbitral tribunal’s jurisdiction has been disputed and the decision on jurisdiction will not be issued within a reasonable period). In general, the courts will dismiss any claim which is subject to an arbitration agreement or arbitral proceedings, unless the arbitration agreement is non-existent, invalid or impracticable.
Section 617(1) of the Code of Civil Procedure limits the enforceability of arbitration agreements in consumer-related matters, stipulating that an arbitration agreement between an entrepreneur and a consumer can be effectively concluded only after a dispute has arisen.
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 arbitration law does not expressly govern the consolidation of arbitral proceedings.
The Vienna International Arbitral Centre (VIAC) Rules of Arbitration (Vienna Rules) stipulate that – on a party’s request – the VIAC Board can consolidate two or more proceedings if the parties agree to it or the same arbitrators were nominated or appointed, provided that the place of arbitration in all arbitration agreements is the same (Article 15).
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?
Arbitral tribunals will decide disputes in accordance with the rules of law as agreed by the parties. The parties are free to decide on the applicable law. Failing any agreement by the parties, the arbitral tribunal will apply the law that it considers appropriate. The parties may also explicitly authorise the arbitral tribunal to make the decision ex aequo et bono.
Are there any provisions on the separability of arbitration agreements?
There are no provisions on the separability of arbitration agreements. This does not mean that arbitration agreements in Austria are invalid just because the main contract in which they are contained is invalid; rather, this is an issue of contract interpretation and thus must be determined in line with the parties’ intentions. Many Austrian court decisions have stated that an arbitration clause can survive the termination of the contract.
Are multiparty agreements recognised?
Multiparty agreements are recognised if the validity requirements for an arbitration agreement have been met. Section 587(5) of the Code of Civil Procedure explicitly stipulates that if several parties fail to appoint a common arbitrator or multiple arbitrators within four weeks, the appointment will be made by the Supreme Court (on one party’s request), unless the arbitration agreement calls for other measures.
Criteria for arbitrators
Are there any restrictions?
Only a natural person who has full legal capacity may be appointed as an arbitrator. There is no requirement for arbitrators to be qualified as lawyers or registered members of the bar. However, active Austrian judges are prohibited from accepting appointments as arbitrators during their tenure of judicial office.
What can be stipulated about the tribunal in the agreement?
Arbitration agreements can contain various provisions, typically regarding:
- the number of arbitrators;
- the language of the proceedings; and
- the place of arbitration.
The parties can also stipulate certain requirements that an arbitrator should fulfil (eg, professional qualifications, experience or language skills). The parties can further agree various aspects of the conduct of the arbitral proceedings, such as:
- the applicable rules, typically by choosing either an arbitration institution or – in the event of ad hoc arbitration – certain rules (typically the UNCITRAL Arbitration Rules); and
Arbitrators who do not possess the qualifications agreed by the parties can be challenged.
Are there any default legal requirements as to the selection of a tribunal - for example, concerning the number of arbitrators or their characteristics?
Unless otherwise agreed by the parties, tribunals consist of three arbitrators. If the arbitration agreement provides for an even number of arbitrators, party-appointed arbitrators will appoint an additional arbitrator as chair.
If the parties fail to select an arbitrator within four weeks of receiving the respective written notification, any party can request the Supreme Court to appoint the arbitrator. Section 587 of the Code of Civil Procedure generally determines the procedure for appointing arbitrators where the parties fail to agree such a procedure.
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?
Section 588 of the Code of Civil Procedure sets out that arbitrators may be challenged where:
- there are justifiable doubts as to their impartiality or independence; or
- they do not possess the specific qualifications agreed by the parties.
Parties are, in principle, free to decide a challenge procedure. In the absence of such an agreement, the challenging party must submit the grounds for challenge to the tribunal in writing. Where a challenge to an arbitrator is unsuccessful, the challenging party may – within four weeks of the arbitral tribunal’s decision – apply to the Supreme Court for a final decision pursuant to Section 589 of the Code of Civil Procedure.
How should an objection to jurisdiction be raised?
An arbitral tribunal’s jurisdiction should be challenged before going into the merits of the case. In line with the competence-competence principle, arbitral tribunals have the power to rule on their own jurisdiction. An award can be challenged by way of an application to set aside an award on the issue of jurisdiction, which falls under the Supreme Court’s exclusive jurisdiction where the seat of arbitration is in Austria.
Replacement of an arbitrator
Why and how can an arbitrator be replaced?
An arbitrator can be challenged if circumstances exist that give rise to justifiable doubts as to their impartiality or independence or if they do not possess the specific qualifications agreed by the parties. Early termination of an arbitrator’s mandate is possible if the parties agree so or the arbitrator withdraws from office. Further, the courts may – on a party’s request – terminate an arbitrator’s mandate where they are unable or fail to exercise their function in due time and one of the following conditions is satisfied:
- the arbitrator does not resign;
- the parties cannot agree on the termination of the arbitrator’s mandate; or
- the agreed procedure does not lead to the termination of the arbitrator’s mandate.
If an arbitrator’s mandate is terminated for any reason, a substitute arbitrator must be appointed in accordance with the rules applicable to the former appointment.
Powers and obligations
What powers and obligations do arbitrators have?
Arbitral tribunals have the power to, among other things:
- decide on their own jurisdiction (the competence-competence principle);
- conduct proceedings;
- render final and binding awards;
- order interim or protective measures;
- decide on costs; and
- correct clerical mistakes and typographical and mathematical errors in the arbitral award.
The Code of Civil Procedure provides that arbitrators must:
- be neutral and independent from the parties;
- disclose all circumstances which could raise doubts as to their impartiality and independence;
- not unduly delay proceedings; and
- treat the parties equally and fairly, which entails providing the parties with an opportunity to present their case.
Liability of arbitrators
Are arbitrators immune from liability?
If arbitrators fail to fulfil the duty assumed by the acceptance of their appointment or fail to fulfil this duty in a timely manner, they are liable to the parties for all damages caused by the refusal or delay (Section 594(4) of the Code of Civil Procedure). The Supreme Court has ruled that an arbitrator's liability presupposes that the contested act of omission has led to the setting aside of the award. The Vienna International Arbitral Centre (VIAC) Rules of Arbitration (Vienna Rules) exclude arbitrators’ liability for acts or omissions in relation to arbitral proceedings to the extent legally permissible.
Communicating with the tribunal
How do the parties communicate with the tribunal?
Sections 577 et seqq of the Code of Civil Procedure solely address the receipt of written communications set out in Section 580 of the code and stipulate that any written communication will be deemed to have been received:
- on the day on which it was delivered personally to the addressee or an authorised recipient; or
- if this was impossible, on the day on which it was delivered to the recipient’s seat, domicile or habitual residence.
The Vienna Rules stipulate that service of written submissions will be deemed to be validly executed if dispatched by:
- registered post or letter with confirmation of receipt;
- email; or
- any other means of telecommunication that ensures confirmation of transmission.
In practice, parties primarily communicate with a tribunal via email.
Is unanimous agreement of the tribunal required? If there is disagreement, does the will of the majority suffice? What are the implications of this?
Unless otherwise agreed by the parties, any arbitral tribunal decision must be made by a majority of its members. The chair alone can decide questions of procedure, if so authorised by the parties or all members of the tribunal.
Where one or more arbitrators do not participate in a vote without justified reason, the other arbitrators may decide without them. The necessary majority of votes will be calculated by the total of all participating and non-participating arbitrators in this case as well.
In addition, and unless otherwise agreed by the parties, the signatures of the majority of all members of the arbitral tribunal on the award will suffice, provided that the chair or another arbitrator records on the arbitral award the reason for any omitted signature.
Are there any disputes incapable of being referred to arbitration?
Pursuant to Section 582 of the Code of Civil Procedure, all pecuniary disputes that lie within the jurisdiction of the courts are arbitrable. Non-pecuniary claims are arbitrable if the parties can enter into a settlement agreement on the subject matter in dispute.
Matters of family law, claims based on contracts that are subject to the Tenancy Act or the Non-Profit Housing Act, as well as all claims relating to the ownership of apartments, are not arbitrable. Special provisions apply with regard to consumer or employment-related matters, whereas some employment and social security matters are generally not arbitrable.
Can the arbitrability of a dispute be challenged?
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?
Yes, the competence-competence principle is expressly regulated in Section 592 of the Code of Civil Procedure, which stipulates that arbitral tribunals rule on their own jurisdiction in the final or a separate award. The recourse against awards concerning the tribunal’s jurisdiction can be made in an application to the Supreme Court to set aside the award.
Starting an arbitration proceeding
What is needed to commence arbitration?
The Code of Civil Procedure does not expressly define the commencement of arbitration. The Supreme Court has ruled that an arbitration becomes pending on the respondent’s receipt of the statement of claims. Under the Vienna International Arbitral Centre (VIAC) Rules of Arbitration (Vienna Rules), an arbitration commences once the VIAC Secretariat receives the statement of claims.
Are there any limitation periods for the commencement of arbitration?
The commencement of arbitration is relevant for the interruption of the applicable limitation periods.
Are there any procedural rules that arbitrators must follow?
Procedural rules for arbitrators to follow derive from Section 577 et seq of the Code of Civil Procedure, the agreement of the parties and the applicable rules. If the arbitral tribunal has not complied with a procedural provision of the code from which the parties may derogate, or with an agreed procedural requirement of the arbitral proceedings, a party which proceeds with the arbitral proceedings without stating its objection immediately after having become aware thereof, or within the provided period, may not raise such an objection at a later stage (see Section 579 of the code).
Are dissenting opinions permitted under the law of your jurisdiction?
While Section 606 of the Code of Civil Procedure stipulates that the signatures of the majority of all members of the arbitral tribunal will suffice – provided that the chair (or another arbitrator) records on the arbitral award the reason for any omitted signature – the code is silent on the subject of dissenting opinions. There are divided opinions in the doctrine on this issue. In one decision, the Supreme Court found (in relation to the enforcement of a foreign arbitral award) that it was not obligatory to attach the dissenting opinion to the arbitral tribunal’s award, as the dissenting opinion did not form part of the award.
Can local courts intervene in proceedings?
Local courts may intervene in arbitration matters only when expressly authorised to do so by the Code of Civil Procedure (Section 578). Arbitral tribunals (as well as arbitrators who have been authorised accordingly by the arbitral tribunal or a party with the arbitral tribunal’s approval) may request the court to conduct judicial acts for which the arbitral tribunal has no authority. The Austrian courts can still grant interim or protective measures, even if a valid arbitration agreement exists and even while arbitral proceedings are pending. Further, the Supreme Court has jurisdiction to assist with the nomination and challenges of arbitrators and in proceedings for setting aside awards.
Can the local courts assist in choosing arbitrators?
Parties are free to agree on the procedure for appointing arbitrators – for example, by agreeing on certain arbitration rules. Failing such agreement on the appointment procedure, the parties will appoint the arbitrators in line with Section 587 of the Code of Civil Procedure. If the parties fail to appoint arbitrators within the deadlines set therein, the respective arbitrators can be appointed by the Supreme Court following a request by either party.
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 of the Code of Civil Procedure deals with the issues that may arise if there is a default by a party in arbitral proceedings. If the claimant fails to submit its statement of claim in accordance with Section 597(1) of the Code of Civil Procedure, the arbitral tribunal will terminate the proceedings. If the respondent fails to respond within the agreed or ordered term, the arbitral tribunal may continue with the arbitral proceedings and render a decision based on the evidence before it. This does not mean that the failure itself will be treated as an admission of the claimant’s allegations by the respondent. Further, the defaulting party may remedy the default at a later stage, provided that the arbitral tribunal finds the default to be sufficiently excused.
Parties cannot be compelled to participate in arbitration. As tribunals lack the power to compel witnesses, parties or experts to testify or the provision of pieces of evidence, they may request judicial assistance from the court, if necessary. On such request, the court can:
- summon witnesses;
- order the disclosure of documents (in certain cases); and
- penalise parties, witnesses or experts which fail to comply with the respective summons or order.
In what instances can third parties be bound by an arbitration agreement or award?
It is an accepted principle that arbitration agreements bind only the parties thereto. The Austrian courts are reluctant to bind third parties to arbitration agreements. In principle, arbitration agreements can validly bind:
- single and universal legal successors;
- beneficiaries of contracts concluded for the benefit of a third party; and
- shareholders of corporate entities, under certain conditions.
The Code of Civil Procedure contains no provisions on multiparty proceedings (with the exception of Section 587(5), which addresses only the appointment of arbitrators in multiparty proceedings). Whether third parties can be joined to or intervene in arbitral proceedings will depend on the applicable rules of the arbitration. Unlike the Code of Civil Procedure, the Vienna Rules contain a number of provisions relating to multiparty proceedings.
Third parties can be bound by an award only if they have been granted the same procedural rights as the parties.
Default language and seat
Unless agreed by the parties, what is the default language and location for arbitrations?
Parties are free to choose the language(s) of the arbitral proceedings. Failing such agreement, the language is determined by the arbitral tribunal.
Unless agreed by the parties or stipulated in the chosen rules, the seat of the arbitral tribunal will be determined by the tribunal having due regard to the circumstances of the case, including the convenience of such place for the parties. The hearings may be conducted anywhere that the arbitral tribunal considers to be appropriate.
Under the Vienna Rules, the default place of arbitration is Vienna.
How is evidence obtained by the tribunal?
Arbitral tribunals have the power to:
- decide on the admissibility of evidence;
- take such evidence; and
- determine its relevance.
The parties are entitled to receive sufficient notice concerning hearings and meetings of the arbitral tribunal for the taking of evidence. They also have the right to receive all submissions, documents or communications provided to the tribunal by the other parties, as well as expert reports or other evidence on which the tribunal may rely (Section 599 of the Code of Civil Procedure).
The Code of Civil Procedure stipulates that unless otherwise agreed by the parties, an arbitral tribunal has the authority to appoint experts to supply it with a report on specific issues. The arbitral tribunal can also require the parties to provide the expert with any relevant information or access to any relevant documents or objects for the expert’s inspection (Section 601 of the Code of Civil Procedure).
Where a tribunal lacks authority to conduct specific judicial acts, it can request judicial assistance from the court pursuant to Section 602 of the Code of Civil Procedure. This is relevant where, among other things, a witness is unwilling to testify in front of the tribunal.
What kinds of evidence are acceptable?
There is no conclusive catalogue of types of evidence. Arbitral tribunals decide which evidence is admissible and take such evidence and evaluate it at their discretion. They are not bound by the means of evidence foreseen in the Code of Civil Procedure for state court proceedings.
Is confidentiality ensured?
Although the Code of Civil Procedure does not expressly stipulate that arbitral proceedings are private, this prevailing principle of arbitration applies in Austria. Since the code does not expressly impose a duty on the parties to keep documents and materials produced in (or for the purposes of) arbitral proceedings confidential, it is advisable to include such provisions in the arbitration agreement or to choose arbitration rules that ensure confidentiality.
Can information in arbitral proceedings be disclosed in subsequent proceedings?
Section 616 of the Code of Civil Procedure stipulates that the public may be excluded in court proceedings regarding an action for setting aside an arbitral award or an action for the declaration of an award’s existence or non-existence where a legitimate interest in doing so can be shown. The code does not prohibit the disclosure of information disclosed or obtained in arbitral proceedings in subsequent proceedings.
What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
Austrian law contains no specific ethical codes for counsel and arbitrators involved in arbitration proceedings. However, Austrian lawyers are bound by professional ethical rules when acting as either counsel or arbitrators in arbitration proceedings.
Estimation & allocation
How are the costs of arbitration proceedings estimated and allocated?
Section 609 of the Code of Civil Procedure addresses decisions on costs in arbitration proceedings. Arbitrators decide on the parties’ obligation to reimburse the costs of the arbitral proceedings unless otherwise agreed by the parties. Further, arbitral tribunals determine the amount of the costs to be reimbursed. Tribunals have wide discretion in considering the circumstances of the case, particularly the outcome of the proceedings. It is common practice that the losing party pays the arbitrators’ fees and the costs of the arbitral proceedings, including the other party’s reasonable costs of legal representation (ie, the costs follow the event). Decisions on the obligation for reimbursement of costs and the determination of the amount of costs must 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?
The national courts can order security for costs. The Code of Civil Procedure does not explicitly provide arbitral tribunals with the power to order security for costs. Whether arbitral tribunals can order such measures is controversial.
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.
Rules and restrictions
Are there rules or restrictions on third-party funders?
There are no explicit rules on third-party funding in Austrian arbitration law.
Class-action or group arbitration
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?
Apart from Section 587(5) of the Code of Civil Procedure, which addresses the appointment of arbitrators in multiparty arbitration proceedings, Austrian law includes no provisions regarding class-action arbitration or group arbitration.
Are there any hot topics or trends emerging in arbitration in your jurisdiction?
Austria comprehensively amended its arbitration law in 2006. In 2013 the Code of Civil Procedure was further amended in order to improve the efficiency of state court proceedings relating to arbitration and make the Supreme Court the first and final instance for arbitration-related proceedings. Hot topics worth mentioning include:
- legal tech and the impact of artificial intelligence on dispute resolution;
- the European Court of Justice’s decision in Achmea and its implications;
- the Prague Rules on the Taking of Evidence; and
- the possible impact of Brexit on international arbitration.