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
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.
2. Drafting of the Arbitration Clause
2. a) Applicability of the New York Convention