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Commercial Arbitration 2017

Last verified on Friday 21st July 2017

Austria

Philipp A Peters and Christian W Konrad
Konrad & Partners

    Infrastructure

  1. 1.The New York Convention
    Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?
    1. Austria has withdrawn its original reciprocity reservation in 1988 and thus no longer maintains any relevant declarations or reservations.

  2. 2.Other treaties
    Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?
    1. Austria ratified the European Convention on International Commercial Arbitration in 1964. Since 1971, it has been a contracting state to the ICSID Convention which guarantees the enforcement of awards in investor-state arbitrations conducted under the Convention.

      Apart from these multilateral treaties, Austria has also signed a number of bilateral agreements on the recognition and enforcement of arbitral awards namely with Belgium, British Columbia, Croatia, Germany, Kosovo, Liechtenstein, Macedonia, Montenegro, the Russian Federation, Slovenia, Switzerland and Serbia.

  3. 3.National law
    Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?
    1. Sections 577 to 618 of the Austrian Code on Civil Procedure (hereinafter ACCP) govern Austrian Arbitration law both domestically and internationally. The law is based on the UNCITRAL Model Law and was enacted in 2006 to adapt Austrian Arbitration to the standards of the international practice.

      In a 2013 revision, Austrian Arbitration Law vested the Austrian Supreme Court with the sole authority to hear disputes over almost all arbitration-related issues.

  4. 4.Arbitration bodies in your jurisdiction
    What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?
    1. The Vienna International Arbitral Center (VIAC) is the leading arbitration institution in Austria. It was founded in 1975 and has since administered more than 1300 arbitral proceedings.

      VIAC is attached to the Austrian Federal Economic Chamber and was originally granted the authority to administer solely international arbitrations. Recently, the law governing VIAC and the Austrian Federal Economic Chamber was amended to allow VIAC to administer arbitration in purely domestic disputes if parties agree.

      The latest revision of the Vienna Rules entered into force in 2013 adjusting VIAC’s procedural framework to the current demands in international arbitration.

  5. 5.Foreign institutions
    Can foreign arbitral providers operate in your jurisdiction?
    1. Foreign and international arbitration institutions may freely administer disputes and provide their arbitration services in Austria. The International Chamber of Commerce is permanently represented in Vienna. It serves as appointing authority, provides advice on drafting arbitration clauses and promotes arbitration as a dispute resolution mechanism.

  6. 6.Courts
    Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with the law and practice of international arbitration?
    1. Since the latest amendment of the Austrian Arbitration Law in 2013, a division of the Austrian Supreme Court consisting of reputable judges specialized in arbitration has been designated to rule on almost all arbitration-related issues and most importantly on challenges against arbitrators and against arbitral awards. Since the Supreme Court is the first and last instance to hear such cases, proceedings are of short duration which contributes to the overall effectiveness of arbitration in Austria.

    Agreement to arbitrate

  7. 7.Formalities
    What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?
    1. For an arbitral agreement to be valid, it must meet certain minimum requirements on content and form.

      The agreement must identify the parties, making them at least definable; it must indicate their will to be bound by the arbitration agreement; and it must refer to a "specified legal relationship", ie, to a specific dispute or to any potential dispute arising from a specified legal relationship.

      Section 583 ACCP generally provides that the document of the arbitral agreement must bear the signatures of the parties, permitting also electronic signatures. Section 583(2) ACCP, however, clarifies that if a contract fulfilling the form requirements for an arbitral agreement makes reference to a separate document that contains the arbitration agreement and thus makes it part of the original contract, then such arbitration agreement would be valid. This is significant for arbitration clauses contained in general terms and conditions. An arbitral agreement may also be validly concluded by any means of communication proving both the offer to arbitrate and the acceptance thereof.

      Parties also need to be aware of concerns with the power of representation required for a valid arbitration agreement. It is not uncommon for parties to use agents to negotiate and conclude a contract. Section 1008 of the Austrian Civil Code requires an agent signing an arbitration agreement to be granted a special written power of attorney by the principle which expressly entitles the agent to conclude an arbitration agreement.

      In 2007, an amendment to the Austrian Act on Commerce stipulated that a "commercial power of attorney" as defined in section 54(1) leg. cit. is deemed to include the power to conclude an arbitration agreement. Even prior to this amendment, it was widely accepted that a "Prokura" (a power of attorney granted by an entrepreneur and registered with the Commercial Register) includes the power to conclude arbitration agreements.

      Arbitration agreements concluded between consumers and entrepreneurs and in some employment matters must be concluded only after the dispute has arisen and the consumer or employee has been given written advice on the differences between arbitration and court proceedings.

      Formally invalid arbitration agreements lack legal effect with consequences for the jurisdiction of the arbitral tribunal and the proceedings based on such an invalid agreement. However, if a party has entered an appearance in the case without raising an objection alleging a formal defect with its first submission on the matter, it is generally barred from raising this objection at a later stage.

  8. 8.Arbitrability
    Are any types of dispute non-arbitrable? If so, which?
    1. Section 582 ACCP renders all pecuniary disputes arbitrable. In particular, this includes disputes over anti-trust and competition claims and corporate disputes. Non-pecuniary disputes are only arbitrable if their subject matter may become the subject of a legal settlement under Austrian law. Pursuant to section 582(2) ACCP, matters of family law are not arbitrable. The same is true with respect to claims regarding contracts to which the Landlord and Tenant Act or the Limited Profit Housing Act apply and all claims relating to condominium property. Furthermore, section 9(2) Labour and Social Courts Act renders matters of social security law and disputes arising out of collective labour agreements non-arbitrable.

  9. 9.Third parties
    Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?
    1. With respect to universal succession, the Austrian Supreme Court has ruled that an arbitral tribunal binds the parties’ heirs. This has also been confirmed for the universal successors of a company after a merger, a transfer of assets or a transformation of a company’s legal form. 

      Regarding singular succession, it is generally accepted that an arbitration agreement between a debtor and an assignor of a claim is binding. Generally, the same is true for de lege subrogation and redemption of debt. Similarly, the Austrian Supreme Court has confirmed that an arbitration agreement is binding to the "new" debtor in a contract on the assumption of debt and to the new parties after a contract is transferred. Also, where a contract confers benefits to a third party, the latter may not accept the benefits without the arbitration agreement.

      Under Austrian civil law, if a guarantor has paid a creditor the amount of money owed by a debtor, they subrogate into the right of the creditor from the contract. This also applies to any rights arising from an arbitration agreement concluded with respect to this contract.

      Austrian arbitration law does not expressly govern joinder of third parties. However, where an arbitration is governed by the Vienna Rules, article 14 provides for a comprehensive framework for this purpose. Each party and the third party in question may request a joinder at any stage of the proceedings. Whether the request will be granted is within the discretion of the arbitral tribunal. Before deciding the issue, it must hear the parties and the third party to be joined.

  10. 10.Consolidation
    Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?
    1. Consolidation of arbitral proceedings is not expressly governed by Austrian arbitration law. However, pursuant to article 15 of the Vienna Rules, the VIAC Board may decide to consolidate two or more proceedings provided that the seat of arbitration is the same. The parties’ consent is required where different arbitrators have been appointed to hear the disputes. Before deciding upon a consolidation request, the VIAC Board has to hear all parties and already appointed arbitrators with respect to all relevant circumstances.

  11. 11.

    Groups of companies
    Is the "group of companies doctrine" recognised in your jurisdiction?

    1. Where an arbitration agreement has been signed by only one of companies forming a group, the “group of companies doctrine” provides that the agreement binds any other company of the same group which has participated at the conclusion, performance or termination of the contract.

      Austrian law remains silent on this issue and the Austrian Supreme Court has not had the opportunity to decide on it. The doctrine is facing opposition in Austrian literature due to the strict formal requirements for the arbitration agreement.

  12. 12.Separability
    Are arbitration clauses considered separable from the main contract?
    1. While the doctrine of separability has been widely accepted in Austrian literature, the Austrian Supreme Court regards it as an issue of contract interpretation and applies it on a case-by-case basis. The parties’ intentions at the time the agreement was signed will need to be examined to determine whether the invalidity or voidness of the main contract results in invalidity or voidness of the arbitration agreement.

  13. 13.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?
    1. The principle of competence-competence is expressly stipulated in section 592 ACCP.

  14. 14.Drafting
    Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?
    1. The will of the parties to finally submit their dispute to arbitration must be clearly and unambiguously stated in the arbitration agreement. The Austrian Supreme Court has therefore ruled that a dispute resolution clause providing that the parties should “aim” to resolve their disputes through arbitration does not represent a sufficiently clear expression of their will to arbitrate.

      However, the Austrian Supreme Court has adopted an arbitration-friendly approach and confirms the validity of arbitration clauses where interpretation thereof might equally well lead to the opposite conclusion.  

  15. 15.Institutional arbitration
    Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?
    1. So far, there are no statistical data revealing parties’ preferences regarding ad hoc and institutional arbitration in Austria.

  16. 16.Multi-party agreements
    What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.
    1. Apart from the requirement that the arbitration agreement applies to all parties to the arbitration, all the parties must be granted the right to be heard.

      This has particular implications in the appointment of arbitrators. Generally, parties are free to agree on a special procedure regarding the constitution of the arbitral tribunal.

      Where two or more parties share one side in an arbitration (eg, the one of the respondents), section 587(5) ACCP requires them to jointly appoint one of the arbitrators and provides that any party to the arbitration is entitled to apply to the Austrian Supreme Court to step in and appoint an arbitrator, should they fail to do so within four weeks upon their notification.

    Commencing the arbitration

  17. 17.Request for arbitration
    How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?
    1. Pursuant to section 587(4) ACCP, the request for arbitration should be in writing and should contain a reference to the relevant arbitration agreement and indicate the claims it raises.

      The Austrian Supreme Court has ruled that arbitration is deemed pending upon receipt of the statement of claim by the respondent. For this purpose, the statement of claim must specify the subject of the dispute. As a result, the applicable statutory periods of limitation are interrupted. This is true even where the claimant has not yet appointed an arbitrator. 

      Under the Vienna Rules, pursuant to article 7(1), proceedings are deemed pending upon receipt of the statement of claim by the Secretariat. The Vienna Rules only allow for a complete statement of claim containing information about the parties, a statement of facts, the request for relief, a statement regarding the number of arbitrators, information with respect to the arbitration agreement and an appointment of an arbitrator or an application that an arbitrator be appointed by the Board. Thus, they differ from the rules of other institutions where a mere "notice of arbitration" is sufficient (ie, a notice which may be subsequently supplemented once the arbitral tribunal is established).

    Choice of law

  18. 18.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?
    1. Pursuant to section 604 ACCP, the parties are free to choose the law or “rules of law” they are able to agree upon. In the absence of such an agreement, it is within the discretion of the arbitral tribunal to choose the law it deems appropriate. The tribunal may not decide on the claims ex equo et bono unless the parties have authorised it to do so.

    Appointing the tribunal

  19. 19.Choice of arbitrators
    Does the law of your jurisdiction place any limitations in respect of a party’s choice of arbitrator?
    1. Austrian law only requires that they are natural persons and have full legal capacity. State court judges on active duty are prevented from serving as arbitrators under the disciplinary laws that govern their profession.

      Naturally, arbitrators must be independent and impartial and remain so through the proceedings. While the IBA Guideline on Conflicts of Interests in International Arbitration may not have the force of law, they are widely accepted and regarded as an authoritative point of reference.

  20. 20.Foreign arbitrators
    Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?
    1. Austrian law does not provide for any restrictions regarding the nationality of the arbitrators.

  21. 21.Default appointment of arbitrators
    How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?
    1. Pursuant to section 587(2) ACCP, any party may request the Austrian Supreme Court to step in and appoint an arbitrator where the parties themselves have failed to do so within four weeks upon their receipt of a written notification that they should do so.

      The same is true where the party-appointed arbitrators fail to agree on the appointment of the president of the arbitral tribunal.

  22. 22.Immunity
    Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?
    1. In the absence of an arrangement, section 594(4) ACCP provides that an arbitrator may become liable for any damage suffered by the parties due to a “wrongful refusal or delay”. This includes cases where the arbitrator issues a non-award or the award is set aside or its enforcement is refused due to the arbitrator’s gross negligence. Arbitrators are also liable for damages suffered due to their unjustified resignation and where they justifiably resign or get successfully challenged due to reasons they should have disclosed at the outset.

  23. 23.Securing payment of fees
    Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?
    1. Austrian arbitration law does not provide for any particular mechanism for securing the arbitrator’s fees. In the absence of institutional rules or other arrangements governing this issue, the arbitrators typically request the parties provide an advance on their costs and refuse to proceed with the arbitration unless this payment is made.

      Article 42 of the Vienna Rules governs the advance on arbitrators’ costs and provides that by agreeing to the Vienna Rules, the parties mutually agree to pay their equal shares into an account held by VIAC.

    Challenges to arbitrators

  24. 24.Grounds of challenge
    On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?
    1. Pursuant to section 588(2) ACCP and article 20(1) of the Vienna Rules, an arbitrator may only be challenged due to justifiable doubts as to their impartiality or independence or on the ground that they do not fulfil the qualifications agreed by the parties.

      Whether or not there are justifiable doubts as to the arbitrator’s independence and impartiality is to be examined from an objective perspective (ie, from the perspective of a reasonable third person test). The IBA Guidelines for Conflicts of Interest in International Arbitration are a widespread and authoritative tool which may greatly assist the parties and the tribunal. 

      Section 589 ACCP provides a procedural framework for challenging an arbitrator. A party may challenge an arbitrator within four weeks from the constitution of the arbitral tribunal or from the day it gained knowledge of the ground for a challenge. Under the Vienna Rules, this time period is reduced to just 15 days from the date the party that raises the challenge learned about the relative circumstances.

      Under the ACCP, unless the challenged arbitrator steps down or the other party agrees with the challenge, the arbitral tribunal, including the challenged arbitrator, will decide on the motion. Pursuant to article 20(2) of the Vienna Rules, the decision on challenge will be made by the VIAC Board.

      If the challenge is rejected, the party may refer it to the Austrian Supreme Court within four weeks from the day it received the decision. Section 589(3) ACCP provides that the arbitral tribunal is not required to wait for the Austrian Supreme Court’s decision, but may nevertheless continue the arbitration and even render an award.

       

    Interim relief

  25. 25.

    Types of relief
    What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?

    1. Section 593 ACCP authorises arbitral tribunals to order interim or protective measures upon a party request if it considers that otherwise the enforcement of the claim would be frustrated or significantly impeded and also where it considers that a risk of irreparable harm exists. Parties may also turn to a state court to request such measures. Therefore, generally, they are free to choose between the arbitral tribunal and state courts.

      Arbitral tribunals lack coercive powers and their decisions must be enforced by state courts. As a result, while tribunals may order types of interim relief which are unknown under Austrian law, enforcement courts in Austria will have to transform them into such interim measures that they are authorised to enforce and that come closest to the type of interim relief originally granted by the tribunal.

      Austrian law does not provide for anti-suit injunctions.

  26. 26.Security for costs
    Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?
    1. Austrian arbitration law does not expressly govern the issue of security for costs. Whether such measures may be ordered under section 585 ACCP, which governs interim relief, is still under debate.

    Procedure

  27. 27.

    Procedural rules
    Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (eg, general duties of the tribunal and/or the parties)?

    1. Austrian Arbitration champions the principle of party autonomy and enables parties to deviate from most of its provision if they agree. Parties, however, may not validly waive their right to be heard or their rights to fair and equal treatment, to representation or to challenge an arbitrator or the arbitral award. Also, the principles of competence-competence, the uneven number of arbitrators and the tribunal’s authority to admit evidence are mandatory. Parties also may not deviate from the right to notification of the proceedings.

  28. 28.Refusal to participate
    What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?
    1. Pursuant to section 600 ACCP, if a party refuses or for any other reason fails to participate in the arbitration, the arbitral tribunal shall continue with the proceedings but may not treat this omission as consent to the other party’s assertions. Also, the tribunal may review the reasons for the default and if it considers it justified, it may order that the omitted act be subsequently carried out.

  29. 29.

    Admissible evidence
    What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Arbitration generally be taken into account?

    1. Section 599 ACCP, a mandatory rule, vests the arbitral tribunal with the power to rule on the admissibility of evidence, to carry out the taking of evidence and to evaluate the results. The tribunal thereby enjoys wide discretion powers. Article 29(1) of the Vienna Rules follows the same approach and also expressly vests the tribunal with the authority to request the parties to submit evidence.

      The arbitral tribunal must, however, adhere to the principles of fair treatment of the parties and the right to be heard. Therefore, parties must be granted an opportunity to submit evidence, participate in the taking of evidence and comment on the results thereof. Also, all evidence produced to the tribunal by one of the parties must be communicated to the other party.

      Regardless of their wide discretion powers, arbitral tribunals are also highly recommended to be cautious of the different legal traditions represented in the cases they hear. The IBA Rules on the Taking of Evidence, due to their wide international acceptance, may prove a very useful and reliable tool.

  30. 30.Court assistance
    Will the courts in your jurisdiction play any role in the obtaining of evidence?
    1. Article 602 ACCP authorises arbitral tribunals to request judicial assistance from Austrian courts. This provision also applies to arbitrations which are not seated in Austria. However, the requested judicial act must be one that the arbitral tribunal cannot carry out by itself and the requested type of assistance must not violate Austrian public policy. Provided that this is indeed the case, the competent court must grant the judicial act without examining its usefulness or suitability.

  31. 31.Document production
    What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?
    1. Subject to a party agreement on this matter, the wide powers of discretion enjoyed by the arbitral tribunal in the process of taking of evidence also apply to the question whether document production shall take place or not. Austrian arbitration law and the Vienna Rules deliberately avoid specifying which methods of document production are permitted and which ones are not. Thus, they allow the tribunal to take into account the circumstances of the case and also the legal cultural background of the parties.

      Document production may be based on section 593 ACCP and article 29 of the Vienna Rules which vest the tribunal with the authority to make production orders.

      Again, the IBA Rules on the Taking of Evidence in International Arbitration may serve as guidance that would help the tribunal find the middle ground between the very different legal traditions of civil law and common law.

  32. 32.Hearings
    Is it mandatory to have a final hearing on the merits?
    1. Failing a party agreement on this matter, a party’s request to hold a hearing must be granted by the tribunal or otherwise the award will be set aside.

  33. 33.

    Seat or place of arbitration
    If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?

    1. Arbitral proceedings whose seat is in Austria may also be conducted in any other place. This is made clear by section 595 ACCP. It follows the approach taken by article 20 of the UNCITRAL Model Law but also improves its wording by differentiating between the “seat” and the “place” of arbitration.

    Award

  34. 34.Majority decisions
    Can the tribunal decide by majority?
    1. Generally, pursuant to section 604(1) ACCP and in line with standard international practice, the arbitral tribunal decides by a simple majority of its members, which also corresponds with article 29 of the UNICTRAL Model Law. Parties, however, are free to agree on a different decision-making process. Article 35(1) of the Vienna Rules does not deviate from this standard. 

      If one or more of the arbitrators unjustifiably remain absent from the decision-making process, pursuant to section 604(2) ACCP, the vote may continue without them. However, the required simple majority must be calculated by the total of all members and not just of the ones who actually participate in the voting. Where the vote is on an arbitral award, the parties must be informed in advance of the arbitrators’ intention to find a majority in this particular manner.

  35. 35.Limitations to awards and relief
    Are there any particular types of remedies or relief that an arbitral tribunal may not grant?
    1. Apart from Austrian public policy, there are no restrictions in the type of relief that may be requested and granted. Austrian law regards this issue as a matter of substantive law.

  36. 36.Dissenting arbitrators
    Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?
    1. Austrian arbitration law does not expressly govern dissenting opinion but it does provide that if an arbitrator’s signature is missing from the final award, the president of the arbitral tribunal must explain the reasons of its absence. This has been regarded by some authors as an indication that a dissenting opinion is permitted. Others argue that dissenting opinions are in breach of the confidentiality of the deliberations and the vote of the arbitral tribunal.

      The Austrian Supreme Court has not yet ruled on this issue. Nonetheless, its approach to the matter has become evident from two decisions on the enforcement of arbitral awards. In these cases, the Austrian Supreme Court carefully examined the applicable institutional rules and found that the dissenting opinions do not form part of the arbitral award.

  37. 37.Formalities
    What, if any, are the legal and formal requirements for a valid and enforceable award?
    1. Pursuant to section 606(1) ACCP, an arbitral award has to be in writing and it has to bear the signatures of all arbitrators. If an arbitrator is prevented from signing the award for longer than just a brief period of time, the signatures of the majority of the arbitrators would suffice, provided that the reasons for the omission of the signature are recorded on the award by one of the other arbitrators.

      Section 606(2) ACCP also provides that the award has to state its date and the place where it was made.

      Furthermore, the award must state the names of the members of the arbitral tribunal and indicate the parties. It must contain a decision on the claims granting a clearly determined relief and, unless otherwise agreed by the parties, it shall state the reasons for the decision.

  38. 38.Time frames
    What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?
    1. Austrian arbitration law does not provide for a time limit for rendering an arbitral award thus allowing parties to specify this in their arbitration agreement.

      Once the award is received by the parties, a period of four weeks starts running pursuant to Section 610(1) ACCP during which a party may request the arbitral tribunal to correct the award and supplement it with respect to claims raised during the proceedings but not resolved by the tribunal. The same period applies to party requests to the tribunal to explain certain parts of the award, provided that the parties have agreed to allow such requests.

      The receipt of the award by the parties also triggers a time period of three months during which the parties may challenge it before the Austrian Supreme Court.

       

    Costs and interest

  39. 39.

    Costs
    Are parties able to recover fees paid and costs incurred? Does the "loser pays" rule generally apply in your jurisdiction?

    1. The allocation of costs is governed by section 609 ACCP, which grants parties maximum autonomy. In the absence of a party agreement, the provision also vests the arbitral tribunal with a wide-range of discretionary powers requiring it to consider the circumstances of the case and the outcome of the proceedings.

      Pursuant to section 609 ACCP, reimbursement of the costs may be granted for all reasonable and appropriate costs. This would typically include the costs for party representation before the arbitral tribunal, the advance on costs provided by the parties, the internal costs of a party’s legal department, experts’ fees and expenses. Similarly, reimbursable costs may be incurred by witnesses for their attendance at the oral hearings or by the parties for the preservation or taking of evidence.

      Article 37 of the Vienna Rules does not provide for any restrictions as to the allocation of the costs by the arbitral tribunal thus allowing for maximum flexibility.

      Importantly, the tribunal’s powers to decide on costs are restricted with respect to its own costs. Such a decision would not be subject to enforcement in Austria. The decision on the costs must not violate Austrian public policy.

  40. 40.Interest on the award
    Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?
    1. Austrian arbitration law allows the arbitral tribunal to grant interest.

      In general, Austrian law treats the issue of interest as a matter of substantive law. Therefore, Austrian law would apply to the interest rate only if so agreed by the parties. Where this is the case, section 1000 of the Austrian Civil Code provides for a rate of 4 per cent, which applies to contractual relationships. The interest rate for commercial transactions, however, is governed by section 352 of the Austrian Act on Commerce, which provides for an increased rate of 9.2 per cent above the base lending rate. With respect to compound interest, section 1000(2) of the Austrian Civil Code provides for an interest rate of 4 per cent, which applies both to general contractual transactions and to commercial transactions. Neither of these rates is mandatory but deviating party agreements must not violate Austrian public policy.

    Challenging awards

  41. 41.Grounds for appeal
    Are there any grounds on which an award may be appealed before the courts of your jurisdiction?
    1. Austrian courts are not vested with the authority to conduct révision au fond, ie, they are not allowed to revise the factual and legal basis of the award. Article 611(2) No.1 to 8 ACCP provides an exhaustive list of grounds for challenging an arbitral award:

      1. a valid arbitration agreement does not exist or one of the parties was under an incapacity to conclude a valid arbitration agreement under the law that governs its personal status, or the arbitral tribunal has denied its jurisdiction;
      2. a party was not properly notified of the arbitral proceedings or of the appointment of an arbitrator or for another reason was unable to presents its case;
      3. the award includes a decision on a dispute or an issue which is not covered by the arbitration agreement or by the parties’ requests;
      4. the composition or constitution of the arbitral tribunal was in breach of party agreement on this issue or in breach of the applicable ACCP provisions;
      5. a violation of public policy, ie, the manner in which the arbitral proceedings were conducted is in conflict with the fundamental values of Austrian law (procedural public policy);
      6. the grounds for which an action for revision under section 530(1) No. 1 to 5 ACCP may be filed against a court judgement;
      7. non-arbitrability of the subject matter of the dispute under Austrian law; and
      8. the arbitral award itself is in conflict with fundamental values of the Austrian legal system (substantive public policy).
  42. 42.Other grounds for challenge
    Are there any other bases on which an award may be challenged, and if so what?
    1. The list in section 611(2) ACCP is exhaustive. There are no other grounds for challenging an arbitral award.

      Pursuant to section 612 ACCP, a request may be brought before the Austrian Supreme Court to establish the existence or non-existence of an arbitral award.

  43. 43.Modifying an award
    Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?
    1. Parties may not validly agree to expand the list of grounds for challenging an arbitral award by adding new grounds. Neither may they waive any of these grounds in advance. The grounds set out in section 611(2) No.1 to 6 ACCP (ie, non-arbitrability of the subject matter of the dispute and violations of substantive public policy) should be examined by the arbitral tribunal ex officio and the parties may not validly agree to exclude them even after they have received the arbitral award.

    Enforcement in your jurisdiction

  44. 44.Enforcement of set-aside awards
    Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
    1. The Austrian Supreme Court has not yet decided whether the successful challenge of an arbitral award abroad constitutes a ground for refusing its enforcement under Austrian law.

  45. 45.Trends
    What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?
    1. The Austrian Supreme Court has maintained its traditional approach of interpreting the grounds for challenge of arbitral awards with great caution.

  46. 46.State immunity
    To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
    1. The theory of restricted immunity is recognised in Austria. In contrast to the theory of absolute immunity, it only grants other states protection from prosecution with respect to their acts in their capacity and function as states.

    Further considerations

  47. 47.Confidentiality
    To what extent are arbitral proceedings in your jurisdiction confidential?
    1. Austrian arbitration law does not provide for a specific duty to keep the arbitral proceedings confidential. Failing a clear party agreement, whether or not such a duty may be derived from the arbitration agreement must be examined on a case-by-case basis and taking into account not just the arbitration agreement but also the main contract from which the dispute arises.

      Parties are therefore well advised to agree on a clause governing confidentiality or to choose a set of institutional rules that unambiguously deal with this issue. Article 16(2) of the Vienna Rules stipulates a duty of the arbitrators to keep confidential all information they have acquired in the course of their duties.

  48. 48.Evidence and pleadings
    What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?
    1. See question 47.

  49. 49.Ethical codes
    What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
    1. Austrian law does not provide for specific ethical codes governing the conduct of arbitration practitioners in particular.

  50. 50.Procedural expectations
    Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?
    1. Austria offers parties, counsels and arbitrators a very modern and sophisticated arbitration law. It provides a reliable arbitral institution with long experience which is aware of international trends and ready to adjust its rules to keep them current. Austria is also home to a vibrant community of internationally renowned arbitration specialists and scholars.

      Austria is therefore widely regarded as an arbitration-friendly jurisdiction. 

  51. 51.

    Third-party funding
    Is third-party funding permitted in your jurisdiction?

    1. Austrian arbitration law does not expressly govern third-party funding and the Austrian Supreme Court has not yet had the opportunity to rule on the issues it raises.

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GAR know-how provides reliable cross-jurisdictional insight to help cement the building blocks of international practice. In this section, select experienced practitioners answer commonly asked questions for key jurisdictions so allowing readers to be better-placed to solve the challenges of their working days.

Questions

    Infrastructure

  1. 1.The New York Convention
    Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?
  2. 2.Other treaties
    Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?
  3. 3.National law
    Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?
  4. 4.Arbitration bodies in your jurisdiction
    What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?
  5. 5.Foreign institutions
    Can foreign arbitral providers operate in your jurisdiction?
  6. 6.Courts
    Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with the law and practice of international arbitration?
  7. Agreement to arbitrate

  8. 7.Formalities
    What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?
  9. 8.Arbitrability
    Are any types of dispute non-arbitrable? If so, which?
  10. 9.Third parties
    Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?
  11. 10.Consolidation
    Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?
  12. 11.

    Groups of companies
    Is the "group of companies doctrine" recognised in your jurisdiction?


  13. 12.Separability
    Are arbitration clauses considered separable from the main contract?
  14. 13.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?
  15. 14.Drafting
    Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?
  16. 15.Institutional arbitration
    Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?
  17. 16.Multi-party agreements
    What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.
  18. Commencing the arbitration

  19. 17.Request for arbitration
    How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?
  20. Choice of law

  21. 18.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?
  22. Appointing the tribunal

  23. 19.Choice of arbitrators
    Does the law of your jurisdiction place any limitations in respect of a party’s choice of arbitrator?
  24. 20.Foreign arbitrators
    Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?
  25. 21.Default appointment of arbitrators
    How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?
  26. 22.Immunity
    Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?
  27. 23.Securing payment of fees
    Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?
  28. Challenges to arbitrators

  29. 24.Grounds of challenge
    On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?
  30. Interim relief

  31. 25.

    Types of relief
    What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?


  32. 26.Security for costs
    Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?
  33. Procedure

  34. 27.

    Procedural rules
    Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (eg, general duties of the tribunal and/or the parties)?


  35. 28.Refusal to participate
    What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?
  36. 29.

    Admissible evidence
    What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Arbitration generally be taken into account?


  37. 30.Court assistance
    Will the courts in your jurisdiction play any role in the obtaining of evidence?
  38. 31.Document production
    What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?
  39. 32.Hearings
    Is it mandatory to have a final hearing on the merits?
  40. 33.

    Seat or place of arbitration
    If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?


  41. Award

  42. 34.Majority decisions
    Can the tribunal decide by majority?
  43. 35.Limitations to awards and relief
    Are there any particular types of remedies or relief that an arbitral tribunal may not grant?
  44. 36.Dissenting arbitrators
    Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?
  45. 37.Formalities
    What, if any, are the legal and formal requirements for a valid and enforceable award?
  46. 38.Time frames
    What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?
  47. Costs and interest

  48. 39.

    Costs
    Are parties able to recover fees paid and costs incurred? Does the "loser pays" rule generally apply in your jurisdiction?


  49. 40.Interest on the award
    Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?
  50. Challenging awards

  51. 41.Grounds for appeal
    Are there any grounds on which an award may be appealed before the courts of your jurisdiction?
  52. 42.Other grounds for challenge
    Are there any other bases on which an award may be challenged, and if so what?
  53. 43.Modifying an award
    Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?
  54. Enforcement in your jurisdiction

  55. 44.Enforcement of set-aside awards
    Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
  56. 45.Trends
    What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?
  57. 46.State immunity
    To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
  58. Further considerations

  59. 47.Confidentiality
    To what extent are arbitral proceedings in your jurisdiction confidential?
  60. 48.Evidence and pleadings
    What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?
  61. 49.Ethical codes
    What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
  62. 50.Procedural expectations
    Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?
  63. 51.

    Third-party funding
    Is third-party funding permitted in your jurisdiction?