Austria - National Report - World Arbitration Reporter (WAR) - 2nd Edition
Stefan Riegler, a Partner of Baker & McKenzie in Vienna, specializes in international commercial arbitration and litigation. He is acting both as counsel (before state courts and arbitral tribunals) and increasingly as arbitrator in international arbitrations under the major institutional rules and in ad hoc arbitrations. Dr. Riegler has published extensively on international arbitration, particularly as co-editor and author of Arbitration Law of Austria: Practice and Procedure (Juris Publishing 2007). He received his postgraduate degree from the London School of Economics and Political Science and his Ph.D. from the University of Vienna; he is also an alumnus of the School of International Arbitration at Queen Mary, University of London. Dr. Riegler is a founding member and former chairman of YAAP (Young Austrian Arbitration Practitioners).
Christian Koller, a senior research and teaching assistant at the University of Vienna and the University of Zurich, specializes in international commercial arbitration and litigation. He lectures on complex dispute resolution as well as cross-border enforcement of judgements and arbitral awards at the University of Vienna. Dr. Koller has published extensively on international arbitration, most recently a monograph on set-off and counterclaim in international commercial arbitration (Manz, 2009). He received his Ph.D. from the University of Vienna.
Originally from World Arbitration Reporter (WAR) - 2nd Edition
I. INTRODUCTION: ARBITRATION IN AUSTRIA – HISTORY AND INFRASTRUCTURE
A. History and Current Legislation on Arbitration
1. Historical evolution of law relating to arbitration
Prior to the adoption of the UNCITRAL Model Law (hereinafter “Model Law”) in 2006, the main provisions of Austrian arbitration law originated from the year 1895, i.e. the original version of the Austrian Code of Civil Procedure (hereinafter “ZPO”),1 which entered into force 1898. The provisions on Austrian arbitration law were (and still are) contained in the fourth chapter of the ZPO (secs 577 to 599 ZPO). The purpose of a (minor) reform in 1983 was to adapt Austrian arbitration law to international standards and practice, thereby increasing Austria’s attractiveness as a place of arbitration: The formal requirements for arbitration agreements were liberalized by including telegrams and telexes; additionally, it was clarified that a (mere) violation of mandatory law does not lead to the setting aside of an arbitral award, but rather only an infringement of fundamental values of the Austrian legal system.
In 2002 the Working Group of the Ludwig-Boltzmann-Institut für Rechtsvorsorge und Urkundenwesen devised a first draft of the new Arbitration Act. The draft was based on the Model Law as a starting point and aimed at harmonizing the Model Law provisions with Austrian arbitration law and practice at that time. The Working Group considered the laws of Switzerland, England and France. Moreover the experiences of Germany adopting the Model Law in 1997 had a substantial impact on the Working Group and its draft. On the basis of the Working Group’s draft, the Austrian Federal Ministry of Justice commenced its work and presented a ministerial draft in May 2005, which led to the Arbitration Reform Act 2006 (“Schiedsrechts-Änderungsgesetz 2006”) (hereinafter “Act”)2 eventually making Austria a Model Law country. The Act amended the fourth chapter of the ZPO – now consisting of secs 577 to 618 – entirely.
5. Special provisions for consumers and labour law matters B. Doctrine of Separability 1. Statutory provisions 2. Practice and case law C. Jurisdiction 1. Which forum decides jurisdiction 2. Prima facie determination 3. Competence-competence 4. Interaction of national courts and tribunals D. Arbitrability 1. Notion and functions of arbitrability 2. Applicable law 3. Subjective arbitrability a) Natural persons b) Legal persons c) States and state entities 4. Objective arbitrability a) General remarks b) Examples of restrictions to objective arbitrability at law c) Cases restricting objective arbitrability i. Claims involving an “economic interest” ii. Claims not involving an “economic interest” E. Arbitral Tribunal 1. Status and qualifications of arbitrators a) Number of arbitrators b) Legal status c) Qualifications and accreditation requirements d) Arbitrators’ rights and duties e) Relevant codes of ethics 2. Appointment of arbitrators a) Methods of appointment b) Appointing authorities c) Payment agreements d) Resignation and its consequences 3. Challenge and removal a) Grounds for challenge b) Procedure for challenge c) Removal procedure d) Replacement of arbitrators 4. Arbitrator liability and immunity F. Conducting the Arbitration 1. Law governing procedure a) Determination of law and rules governing procedure b) Notion and role of seat of arbitration c) Methods for selection of seat absent party choice d) Mandatory rules of procedure 2. Conduct of arbitration a) Basic procedural principles b) Party autonomy and arbitrators’ power to determine procedure c) Style and characteristics of the oral hearing d) Documents only arbitrations e) Submissions and notifications f) Deadlines , and methods for their extension g) Legal representation h) Default proceedings 3. Effect of the insolvency of a party on pending arbitral proceedings 4. Taking of evidence a) Admissibility b) Burden of proof c) Standards of proof d) Evidentiary means- in general e) Documentary evidence and privilege i. Form and kind of documents to be presented to the arbitral tribunal ii. Privilege f) Production of documents g) Witnesses i. Ability of a person to act as a witness ii. Preparation of witnesses and limits thereof iii. Admissibility of written witness statements iv. Entitlement of a party to have a hearing or cross-examination of witnesses h) Tribunal-appointed experts i. General remarks ii. The parties’ influence on the experts terms of reference iii. The expert’s impartiality and independence
iv. Oral examination of an expert in a hearing i) Party-appointed experts 5. Interim measures of protection a) Jurisdiction for granting interim measures b) Availability of preliminary or ex parte orders c) Types of measures d) Form of measures e) Security for costs f) Enforcement mechanisms 6. Interaction between national courts and arbitration tribunals a) General remarks b) Court assistance during the arbitration 7. Multiparty, multi-action and multi-contract arbitration a) Constitution of the arbitral tribunal b) Consolidation of arbitrations c) Joinder of third parties d) Parallel and concurrent proceedings 8. Law and rules of law applicable to the merits a) Determining the applicable law and rules b) Party autonomy c) Determination by arbitrators d) Non-national and substantive rules, general principles of law and transnational rules e) Mandatory rules 9. Costs a) Arbitration costs i. General allocation of the costs of the proceedings ii. Deposit of advances for the costs or fees iii. Costs of the administration by an arbitration institution iv. Arbitrator’s fees: law and practice, judicial control b) Legal costs c) Security for costs d) Time and form of the decision on costs G. Arbitration Award 1. Types of awards a) Partial awards b) Final awards c) Interim awards d) Consent awards e) Default awards f) Awards and other decisions of the tribunal 2. Form requirements a) Essential content b) Reasons c) Time limits for making the award d) Notification to parties and registration 3. Remedies a) (Monetary) Damages b) Specific performance c) Other typical remedies d) Interest 4. Decision making a) Deliberations b) Majority or consensus? c) Dissenting and concurring opinions d) Signature 5. Settlement a) Settlement recorded in an award b) Settlement without an award c) Use of settlement techniques by arbitrators 6. Effects of award a) Effects between parties b) Effects against third parties c) Res judicata 7. Correction, supplementation, and amendment a) Correcting the award b) Additional award c) Interpretation of award H. Challenge and Other Actions against the Award 1. Setting aside a) Grounds i. Grounds with respect to the arbitration agreement ii. Grounds with respect to the right to be heard, Sec 611 (2) No 2 iii. Grounds with respect to scope of arbitration agreement, Sec 611(2) No 3 iv. Grounds with respect to the arbitral tribunal Sec 611(2) No 4 v. Grounds with respect to procedural order public, Sec 611 (2) No 5 vi. Grounds for the reopening of court proceedings, Sec 611(2) No 6 vii. Grounds with respect to objective arbitrability Sec 611(2) No 7 viii. Grounds with respect to substantive odre public, Sec 611(2) No 8 ix. Additional grounds for consumer and labour law matters b) Time limits c) Procedure d) Limiting judicial review of awards by contract e) Effects of successful challenge f) Consideration of grounds for setting aside in other proceedings 2. Appeal on the merits 3. Declaration of the existence or non-existence of an arbitral award III. RECOGNITION AND ENFORCEMENT OF AWARDS A. Domestic Awards 1. Statutory or other regime a) No need for a declaration of enforceability b) Grounds for refusing recognition and enforcement c) Formal requirements for enforcement of awards d) Enforcement procedure e) Appeal against decisions granting/refusing enforcement f) Execution 2. Practice B. Foreign Awards 1. Various regulatory regimes a) Domestic rules b) New York Convention c) Other international conventions and bilateral treaties d) Court practice applying regimes other than the New York Convention 2. Distinction between recognition and enforcement 3. Remedies against decisions granting/refusing enforcement 4. Extent of the enforcement court’s review and examination 5. Application of New York Convention by local courts a) Grounds for refusing recognition of enforcement i. The “in writing requirement” of art II NYC ii. Violation of due process, art V(1)(b) NYC iii. Irregularity in the composition of the arbitral tribunal and procedure, art V(1)(d) NYC iv. Enforcement of annulled arbitral awards, art (V)(1)(e) NYC b) Enforcement procedure i. General requirements ii. Formalities required by art IV NYC c) Public policy as a ground to refuse enforcement IV. APPENDICES AND RELEVANT INSTRUMENTS A. National Legislation (See CD ROM) B. Arbitration Institutions C. Cases D. Bibliography E. Abbreviations