Special Topics - Chapter 3 - Arbitration Law of Austria: Practice and Procedure

About the Author:

Alice A. Fremuth-Wolf is an arbitrator and mediator in Vienna, Austria. Having studied law at the University of Vienna and at the London School of Economics and Political Science (LLM), she served as an assistant at the Institute of Civil Procedural Law at the Law Faculty of Vienna University and worked as an associate with Wolf Theiss (Vienna) and Baker & McKenzie (Vienna) before opening her own law firm in 2004. She has acted as arbitrator and party-representative in international commercial arbitration proceedings in English and German and is also a qualified mediator. She has authored articles and books on arbitration and is co-editor of Arbitration Law and Practice in Central and Eastern Europe. She also lectures at the Law Faculty of Vienna University, coaching the team of Vienna University for the annual Willem C. Vis International Arbitration Moot. Besides being a founding member of the Young Austrian Arbitration Practitioners (YAAP), she is member of several international arbitration associations.

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Originally from Arbitration Law of Austria: Practice and Procedure

SPECIAL TOPICS

3.1 CONFIDENTIALITY IN ARBITRATION

One of the significant advantages of arbitration compared to jurisdiction of domestic courts is commonly held to be confidentiality – which is often not distinguished from the privacy of the arbitral proceedings (“proceedings in camera”). In the following, the question of the obligation of confidentiality of the parties in arbitral proceedings will be dealt with but not the obligation of the arbitrators.

The issue of confidentiality may arise prior to, during or following arbitral proceedings. Unless the arbitration agreement contains explicit confidentiality provisions – which it does not in most cases – the agreed procedural rules and the applicable lex arbitri may provide clarity.

In Austria there are no court decisions in respect to confidentiality, nor has legal literature dealt with that topic in detail up until now. Fasching1 merely states that the sessions and hearings of the arbitral tribunal are closed to the public if the arbitration agreement does not contain any provision to the contrary, or if there is no subsequent written agreement. The question of confidentiality is left open. Liebscher2 alluded to confidentiality as a problem that should be considered in the course of the arbitration law reform because – except for the case in which the parties have stipulated an express obligation of confidentiality – the legal basis under the Old Law was unclear. The legislator however chose not to include a special provision on confidentiality in the Act. The only provision dealing with confidentiality is sec 616 (2), according to which the public may be excluded upon request of a party in settingaside proceedings or in proceedings concerning the declaration of the existence or non-existence of an arbitral award where a legitimate interest in doing so can be shown.

Table of Contents:

Chapter 3 Special Topics

3.1 Confidentiality in Arbitration
3.2 Arbitration Agreement and Third Parties
    (i) The Separability Doctrine - Autonomy or Dependency from Main Contract
    (ii) Legal Nature of the Arbitration Agreement
    (iii) Writing Requirement
        (1) Universal Successors
        (2) Singular Successors (especially assignment of claims)
        (3) Other Third Parties
        (4) Group of Companies and Groups of Contracts
3.3 Arbitrators' Liability
    1. Introduction
    2. Applicable Law
    3. Procedural Remedies
    4. Extent of Liability
    5. Arbitrator's Contract
    6. Requirements for Liability
      6.1 Case Law
      6.2 Legal Literature
      6.3 Extensive Interpretation of Sec 594 (4)
      6.4 Standard of Care
    7. Conclusion
3.4 Enforcement and Recognition of Arbitral Awards
    1. Introduction
    2. Domestic versus Foreign
    3. Level of Scrutiny
    4. Domestic Arbitral Awards
      4.1 General
      4.2 Confirmation of Enforceability
      4.3 No Leave for Enforcement
      4.4 Potential Remedies against Court Order Granting Enforcement
      4.5 Consideration of Grounds of Setting Aside in Other Proceedings
    5. Foreign Arbitral Awards
      5.1 General
      5.2 Multilateral Treaties / New York Convention
      5.3 Leave for Enforcement and Enforcement Authorization
      5.4 Austrian Case Law
    6. Jurisdiction
      6.1 Foreign Arbitral Awards
      6.2 Domestic Arbitral Awards
3.5 Arbitration and Bankruptcy
    1. Introduction
    2. Austrian Bankruptcy Law
    3. Effects of Bankruptcy on Arbitration Agreements
      3.1 General
      3.2 Cases of Impecuniosity as a Consequence of Bankruptcy
    4. Effects of Bankruptcy on Pending Arbitral Proceedings
      4.1 Automatic Stay of Arbitral Proceedings
      4.2 Trustee Instead of Debtor
    5. Arbitrability of Bankruptcy Matters and Claims
    6. Is the Trustee Bound by "Pre-Bankruptcy" Arbitration Agreements?
      6.1 General
      6.2 Outstanding, Secured, Preferred and Asset Claims
      6.3 Challenge Claims on Behalf of the Estate
      6.4 Unsecured Claims