AUSTRIA: An Introduction to Dispute Resolution: Arbitration
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Arbitration in Austria
Austria is an utmost arbitration-friendly jurisdiction and enjoys a pristine reputation as one of the world’s leading seats for arbitration. It is seen as neutral ground for the resolution of disputes with a high degree of legal certainty as well as clear and developed arbitration legislation and jurisprudence.
As a hub for arbitration in central and eastern Europe, Austria is further home to the Vienna International Arbitral Centre (VIAC), a well-established arbitration institution. Vienna has also been chosen by the China International Economic and Trade Arbitration Commission (CIETAC) for the seat of the CIETAC European Arbitration Centre.
Being a contracting state to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, the “New York Convention”, Austrian courts further regularly decide on the recognition and enforcement of foreign arbitral awards in Austria.
• Arbitration Legislation
Austrian arbitration legislation is mainly based on the UNCITRAL Model Law 1985 and directly incorporated into the Austrian Code on Civil Procedure (ACCP). As lex arbitri these provisions of Chapter 4 ACCP (sections 577-618) govern all arbitrations seated in Austria. Two major reforms (2006 and 2013) helped to further develop Austrian Arbitration legislation to facilitate a more modern and party-driven approach to arbitration proceedings.
Under Austrian arbitration laws the parties to an arbitration are largely free to shape the proceedings after their needs and are bound only by a limited number of mandatory provisions. The provisions which are not open to party discretion primarily aim at guaranteeing fair treatment of the parties and ensuring due process.
• Arbitrability and Arbitration Agreements
Austrian law provides that any claim involving an economic interest (“vermögensrechtlicher Anspruch”) may be subject to an arbitration agreement. Claims without an economic interest may further be brought to arbitration if the parties may legally conclude a settlement on the matter. In contrast to the broad scope of claims open for arbitration, section 582 (2) ACCP expressly excludes arbitrability for all matters concerning family law and contracts falling under the scope of the Austrian Tenancy Act (“Mietrechtsgesetz”).
An arbitration agreement must either be signed by the parties or form part of exchanged written communications between the parties, to be valid (e-mails are expressly included). The parties are free to conclude an arbitration agreement as a standalone agreement or incorporate it into a contract.
• Austrian Court System and Arbitration – Austrian Supreme Court
The Austrian Supreme Court is the court of highest significance in arbitration-related matters in Austria. A reform of the Austrian arbitration laws in 2013 made the Austrian Supreme Court the main, and in many cases, sole instance for most arbitration-related matters in order to facilitate swifter proceedings. Previously a total of three instances were foreseen by law.
Proceedings such as the challenging of an arbitrator or the setting aside of an arbitral award fall under the sole jurisdiction of the Austrian Supreme Court. One out of the Supreme Court’s 18 expert committees is solely dedicated to arbitration matters.
• Interim Measures
Both an arbitral tribunal (or sole arbitrator) and national courts are competent to issue interim measures. While the parties may by mutual agreement not grant an arbitral tribunal the power to issue interim measures, the jurisdiction of Austrian courts cannot be excluded by party agreement in this regard.
Austrian courts are responsible for the enforcement of interim measures whether issued by an arbitral tribunal or an Austrian court itself. State courts also enjoy discretion when an arbitral tribunal has ordered security measures that are foreign to the measures available to a national court within the Austrian Enforcement Act (“Exekutionsordnung”). In such a case, the national court will hear the defendant and order the most suitable interim relief measure available under Austrian law.
• Recognition and enforcement of Awards
Arbitral awards rendered by a tribunal or sole arbitrator seated in Vienna, so called “domestic awards”, carry the same significance as a final Austrian court decision and are enforceable without the need to take additional steps.
In contrast, awards rendered by an arbitral tribunal not seated in Austria, “foreign awards”, must first be formally recognised by the competent Austrian court. One of the main advantages of such proceedings in Austria is that an application for recognition of a foreign award may be combined with the application for enforcement measures. The debtor under the foreign award will therefore not be able to move his assets and prevent successful enforcement. The proceedings are in principle governed by the Austrian Enforcement Act, save where relevant international law provides differing provisions. As Austria has been a contracting state to the New York Convention since 1961, this convention plays a substantial role in most recognition proceedings. In addition, Austria extends the Convention’s applicability to foreign awards rendered in non-contracting states, which promotes Austria’s arbitration-friendly position.
• VIAC – Vienna International Arbitral Centre
The Vienna International Arbitral Centre (VIAC), headquartered in Austria’s capital, is one of Europe’s leading and most renowned arbitral institutions. It is established as the Permanent International Arbitration Institution of the Austrian Federal Economic Chamber and administers approximately 55 new cases per year (10-year average). VIAC also provides its own arbitration rules, the “Vienna Rules”.
VIAC acted fast during the COVID-19 pandemic, giving parties the chance to continue the resolution of their disputes despite world-wide restrictions, allowing for proceedings less reliant on physical submissions and hearings with the physical presence of the parties and the tribunal at the same location. In line with the VIAC’s timely reaction on the COVID-19 situation, the Austrian Supreme Court just recently held that even when one party opposes, ordering a remote hearing in arbitration is admissible and does not constitute a reason to challenge the arbitral tribunal. This decision must be regarded as a precedential landmark decision as it appears to be the first decision of any supreme court worldwide to tackle this issue.
The Vienna Rules saw some adaptions to adjust for the challenges brought by the COVID-19 pandemic, which have been formally reflected in the newly published 2021 Vienna Rules. These include express possibility to conduct oral hearings “in person or by other means”. Newly included are also the “Supplementary Rules for Disputes Relating to Succession” and rules regarding the disclosure of third-party funding.
The new rules entered into force as of 1 July 2021 for proceedings commenced after 30 June 2021. Along with the 2021 Vienna Rules, VIAC also published the VIAC Rules of Investment Arbitration and Mediation for the first time.