Arbitral Proceedings and the Enforcement of the Award: Particularly in Relation to Austrian Law and the Rules of Arbitration of the SCC, the ICC and the Austrian Federal Economic Chamber - (SAR) 2001 - 2
1 PDF Version from "Stockholm Arbitration Reporter"
As the economy becomes more competitive in the present era of globalisation, commercial disputes are being fought more vigorously, too. Very often, a party which has not been successful in the arbitral proceedings does not respect the award. Issues related to the enforcement of arbitral awards have therefore become more important to the arbitration community.
The purpose of this article is to suggest, from a practical point of view, a number of issues related to the enforcement of arbitral awards which must be taken into consideration already before the commencement of the enforcement proceedings. Although these issues are focused on the Austrian law on enforcement, the same or similar problems may arise in
many other jurisdictions when a party applies for enforcement. Of course, the issues mentioned in the following are not comprehensive. In order to avoid any problems which may arise with regard to the enforcement of an award, it is advisable to consult, if possible already in the course of the arbitral proceedings, an expert in the law of enforcement of the country where the award will most likely be relied upon.
In this connection, it must be stated that the enforceability of an arbitral award should be a concern not only, as it is obvious, of the parties but also of the arbitrators and the arbitral institution. As a general rule, article 35 of the ICC Rules, for instance, provides that the Arbitral Tribunal and the ICC International Court of Arbitration shall make every effort to make
sure that the award is enforceable. If the award rendered by the arbitrators is unenforceable owing to a gross negligence of the arbitrators, they may even become liable under Austrian law vis-à-vis the parties.