Infrastructure
1. Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?
Austria
Austria has been a party to the New York Convention since 31 July 1961. The Declaration of Accession dated 13 April 1961 (effective 2 May 1961) contains no declarations or reservations.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
2. Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?
Austria
Austria is, inter alia,aparty to the Protocol on Arbitration Clauses (Geneva Protocol, 1923), the Convention on the Execution of Foreign Arbitral Awards (Geneva Convention, 1927), the European Convention on International Commercial Arbitration (European Convention, 1961), and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention, 1966). Further, Austria is a party to a number of bilateral investment treaties.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
3. Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?
Austria
The Austrian Arbitration Act (dated 2006 and last amended 2014) is largely based on the UNCITRAL Model Law on International Commercial Arbitration with some minor adjustments.
The provisions of the Austrian Arbitration Act apply uniformly to domestic and international arbitrations as well as to commercial and non‑commercial arbitrations that have their seat in Austria. There are, however, special provisions for consumer disputes and for labour law matters.
The Austrian Arbitration Act is enacted in the Austrian Code of Civil Procedure (ACCP) Part 6, Chapter 4 sections 577 to 618.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
4. What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?
Austria
The leading arbitration institution in Austria is the Vienna International Arbitral Centre (VIAC), which is part of the Austrian Federal Economic Chamber. VIAC is widely recognised for its competent and efficient administration of both international and domestic arbitrations under the of the VIAC Rules of Arbitration and Mediation 2021 (Vienna Rules) and boasts an especially strong presence in the CEE.
VIAC also acts as an appointing authority (see Annex 4 of the Vienna Rules) and as administering authority (see Annex 5 of the Vienna Rules). VIAC adopted the VIAC Rules of Investment Arbitration, effective as of 1 July 2021, which is a set of specialised arbitral rules for investment arbitration, including the involvement of sovereign parties and the implication of issues of public interest and public policy.
Further institutions relevant to international arbitration are the International Chamber of Commerce (ICC) represented by a National Committee and, most recently, the Permanent Court of Arbitration (PCA), which has opened an office in Vienna, Austria.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
5. Can foreign arbitral providers operate in your jurisdiction?
Austria
Yes.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
6. Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with, and supportive of, the law and practice of international arbitration?
Austria
Most arbitration-related matters (eg, the challenge of arbitrators or awards) fall within the competence of a specialised senate of the Austrian Supreme Court. This ensures consistency and high-quality decisions by experienced judges knowledgeable in arbitration. In these matters, the Supreme Court acts as first and last instance. There is no appeal available.
For practical reasons, requests for interim measures or enforcement of an award fall into the competence of the lower local courts where the asset that is being targeted is located as first instance. Decisions rendered by these courts can be appealed to the higher courts.
Overall, the judiciary is generally knowledgeable, takes swift decisions and a positive stance towards arbitration.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
Agreement to arbitrate
7. What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?
Austria
Section 581(1) ACCP sets out the content requirements for an arbitration agreement (ie, the arbitration agreement must identify the parties and the legal relationship to which it applies and must express the parties' will to submit present and/or future disputes to arbitration).
Section 583 ACCP sets out the form requirements for an arbitration agreement (ie, the arbitration agreement must be in writing either contained in a written document signed by the parties or in an exchange of communications between the parties providing a record of the agreement). If the form requirements are not met, this defect can be cured by entering into arbitral proceedings without objecting to such defect.
While an arbitration agreement can generally also cover future disputes, an exception applies to consumer and employment matters. For such matters, arbitration agreements can only be concluded after a dispute has arisen and must fulfil additional form requirements (cf sections 617 and 618 ACCP).
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
8. Are any types of dispute non-arbitrable? If so, which?
Austria
Under Austrian law, any claim involving an economic interest that would otherwise be subject to the jurisdiction of the civil courts as well as any dispute regarding which the parties may validly conclude a settlement may be referred to arbitration.
Section 582(2) ACCP enumerates certain civil law matters that are reserved for the jurisdiction of state courts for policy reasons. These are family law matters and all claims based on contracts that are – even only partly – subject to the Tenancy Act or the Non‑Profit Housing Act claims concerning condominium property as well as certain (collective) labour and social security matters.
Criminal, insolvency and public law matters are generally not arbitrable.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
9. Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?
Austria
As a rule, only signatories are bound to the arbitration agreement under Austrian law. However, there are exceptions mainly pertaining to legal successors of a party (eg, in cases of death of a party, corporate mergers or divisions) or singular succession (eg, the assignment of a contract or a receivable). Under certain circumstances, arbitration agreements may also bind insolvency administrators.
Further case law has established that an arbitration clause can bind third-party beneficiaries and can extend to all partners in a corporate partnership if this was so intended by the parties.
Austrian arbitration law does not provide specific rules on joinder of third parties. In ad hoc proceedings they would have to be included by means of a notice of arbitration. However, most institutional rules contain specific provisions on joinder of third parties (see, eg, article 14 Vienna Rules).
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
10. Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?
Austria
Although consolidation of separate arbitral proceedings is not addressed by Austrian arbitration law, it is considered permissible in the Austrian arbitration practice.
Article 15 of the Vienna Rules allows for the consolidation of separate arbitral proceedings, if (i) the parties agree to the consolidation or the arbitrators in the separate arbitrations are the same, and (ii) the place of arbitration is the same.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
11. Is the "group of companies doctrine" recognised in your jurisdiction?
Austria
Austrian law has the principle of strict separation of legal entities that excludes application of the ‘group of companies doctrine'. Accordingly, it is practically impossible to pierce the corporate veil. It is only in very limited cases (eg, violation of capital requirements) that shareholders of a company will be jointly and severally liable together with the company.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
12. Are arbitration clauses considered separable from the main contract?
Austria
The doctrine of separability is recognised by Austrian courts. Accordingly, the arbitration agreement remains valid even if the contract is null and void or terminated, unless this was not the intention of the parties.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
13. Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal's jurisdiction and competence?
Austria
The principle of competence-competence is enshrined in section 592(1) ACCP, which gives the arbitral tribunal the prerogative of deciding on its jurisdiction. The only situation in which a party may turn to the courts to determine an arbitral tribunal's jurisdiction is when an objection to jurisdiction has been raised in the arbitral proceeding, but a decision of the arbitral tribunal thereon cannot be obtained within a reasonable period of time.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
14. Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?
Austria
Under Austrian law, the main prerequisites are that the arbitration agreement must be in writing and shall state the legal relationship between the parties regarding which disputes shall be decided in arbitration. However, in cases of ambiguity the Austrian Supreme Court has consistently applied a pro-arbitration (in favorem validitatis) approach when interpreting and determining the validity and the scope of arbitration agreements.
In cases of enforcement of a foreign award in Austria, an arbitration agreement is considered valid if it meets the form requirements either of article II of the NYC or of section 614 ACCP.
Attention should be paid to the scope of a power of attorney if the arbitration agreement is concluded by proxies.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
15. Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?
Austria
Parties appreciate the benefits of institutional arbitration in Austria. There are no statistics available regarding ad hoc international arbitration. In some ad hoc cases, parties rely solely on the statutory framework of the law, which is supplemented by bespoke procedural rules. However, in most ad hoc cases, parties will agree to supplement the statutory framework with a given set of rules, such as the UNCITRAL Arbitration Rules.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
16. What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.
Austria
Austrian arbitration law does not address multi-party arbitration except in the context of the appointment of arbitrators. Section 587(5) ACCP sets out that if several parties that are under the obligation to jointly appoint one or more arbitrators have not been able to agree upon such appointment within four weeks of receipt of a written notice to do so, the arbitrator or the arbitrators shall, upon request by either party, be appointed by the court, unless the agreed appointment procedure provides otherwise. Should the parties have an agreement for more than one arbitrator, it is mandatory that the total number of arbitrators is uneven.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
Commencing the arbitration
17. How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?
Austria
Austrian arbitration law does not address limitation periods as they are generally considered as a matter of the applicable substantive law.
In general, section 597 ACCP provides that a claim shall be filed within the time agreed by the parties or determined by the arbitral tribunal, the claimant shall state the relief sought and the facts supporting his claim and the respondent shall respond thereto. The parties may but must not submit with their statements all documents they consider to be relevant. According to the Austrian Supreme Court, the initial request of arbitration shall at least contain sufficient information to clarify the claim that is to be submitted to arbitration and the relief sought.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
Choice of law
18. How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?
Austria
According to section 603 ACCP, the substantive law of the dispute is determined by the parties' choice and such choice shall be construed, unless the parties have expressly agreed otherwise, as directly referring to the substantive law of that state and not to its conflict of laws rules. Failing any designation of the applicable statutory provisions or rules of law by the parties, the arbitral tribunal shall apply the statutory provisions it considers appropriate.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
Appointing the tribunal
19. Does the law of your jurisdiction place any limitations in respect of a party's choice of arbitrator?
Austria
Austrian law has no limitations in respect of a party's choice of arbitrator but sitting Austrian judges are prohibited by law from accepting arbitrator mandates.
Austrian law mandates that arbitrators are required to be independent and impartial (cf section 588 ACCP). Accordingly, a prospective arbitrator must disclose any circumstances that are likely to give rise to doubts as to his or her impartiality or independence, prior to accepting an appointment. The obligation to disclose such circumstances remains upright throughout the arbitral proceedings.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
20. Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?
Austria
Yes, non-nationals can act as arbitrators in Austria. Section 595 ACCP allows the arbitral tribunal to convene at any place it considers appropriate for conducting proceedings, especially for deliberations among its members, making decisions, conducting oral hearings and taking evidence – unless otherwise agreed by the parties. If hearings etc are held in Austria, the general visa requirements applicable to the foreign national will have to be observed for entry to Austria.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
21. How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?
Austria
Section 587 ACCP provides for a default mechanism for the appointment of arbitrators that allows either party to apply to the Austrian Supreme Court to appoint an arbitrator. In doing so the court shall have due regard to any qualifications required of the arbitrator by the agreement of the parties and to such considerations as are likely to secure the appointment of an independent and impartial arbitrator.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
22. Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?
Austria
Arbitrators are not afforded immunity from civil liability under Austrian law.Section 594(4) ACCP specifically addresses the liability of arbitrators stating that an arbitrator who does not fulfil his obligations resulting from the acceptance of his appointment at all or in a timely manner shall be liable to the parties for all damages caused by his wrongful refusal or delay.
Although the text of section 594(4) ACCP would seem to restrict an arbitrator's liability to a refusal or a delay in performing his or her obligations, the Austrian Supreme Court has ruled in exceptional cases that an arbitrator may also be liable for erroneous procedural decisions and arbitral awards if the arbitral award is set aside.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
23. Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?
Austria
Austrian arbitration law does not address the issue of arbitrators' fees or security thereof. However, it is common practice for arbitrators to request an advance on their fees from the parties.
In ad hoc arbitrations such advances would usually be placed in an escrow account. If the arbitration is conducted under the Vienna Rules, the advance cost will be fixed and held by VIAC.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
Challenges to arbitrators
24. On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?
Austria
Section 588(2) ACCP provides that an arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to his or her impartiality or independence, or if the arbitrator does not fulfil the qualifications agreed upon by the parties. The standard is the objective point of view (ie, it is decisive whether circumstances exist that, from the point of view of a reasonable third party knowing the relevant facts, could give rise to doubts regarding the arbitrator's independence or impartiality).
To assess the arbitrator's independence and impartiality, the Austrian Supreme Court frequently refers to the IBA Guidelines and applies a standard comparable to that applied by leading arbitral institutions.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
Interim relief
25. What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?
Austria
Unless otherwise agreed by the parties, arbitral tribunals may award preliminary or interim relief. However, an arbitral tribunal must first grant the other party an opportunity to be heard, ie such relief may not be granted ex parte (cf section 593 ACCP).
While the parties may exclude an arbitral tribunal's power to grant interim relief, Austrian law prohibits exclusion of interim relief granted by courts, be it before or after the constitution of the arbitral tribunal.
Austrian law does not know the instrument of anti-suit injunctions. However, if an arbitral tribunal grants preliminary or interim relief that contains a remedy unknown to Austrian law, section 593 ACCP allows the enforcing court to be guided by the purpose to be achieved by the remedy and to then grant an equivalent remedy available under Austrian law.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
26. Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?
Austria
Austrian civil procedure allows for security for costs. However, the matter is not specifically addressed under Austrian arbitration law. The power to order a party to provide security for costs is understood to be implied in the competence of a court or tribunal to award interim relief. Some institutional rules provide specific provisions for security of costs (see, eg, article 33(6) of the Vienna Rules).
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
Procedure
27. Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (eg, general duties of the tribunal and/or the parties)?
Austria
Austrian arbitration law grants the parties extensive autonomy in determining the conduct of the arbitration. Accordingly, the ACCP contains only very few mandatory legal provisions providing that certain mandatory guarantees are respected (eg, the right to be heard, equal treatment of the parties). However, most provisions in the ACCP are designed as (waivable) default rules that govern the arbitral procedure if the parties have failed to provide for institutional or other rules to govern their arbitration proceedings.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
28. What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?
Austria
In cases where the respondent fails to participate in an arbitration, section 600 ACCP allows the arbitration to continue and an award to be rendered, provided that the respondent has been notified of the arbitration.
Section 580(2) ACCP contains a rule that provided a party has knowledge of the arbitral proceedings but the whereabouts remain unknown despite reasonable inquiries, any written communication is deemed to have been received on the day upon which orderly delivery was demonstrably attempted at a place indicated by the party in the arbitration agreement or subsequently indicated to the other party or to the arbitral tribunal and that has not hitherto been revoked upon indication of a new address.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
29. What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Arbitration generally be taken into account?
Austria
Section 599(1) ACCP gives the arbitral tribunal wide discretion regarding the admissibility of evidence as well as the taking and evaluating of evidence.
In practice, most arbitrators will take into consideration the legal background of the parties and in many cases will adopt a hybrid approach (ie, will take both civil and common law rules on evidence into consideration). Moreover, the IBA Rules on the Taking of Evidence in International Arbitration are frequently referred to as guidelines.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
30. Will the courts in your jurisdiction play any role in the obtaining of evidence?
Austria
Austrian arbitration law provides that courts shall only become involved in arbitration proceedings upon the request of the parties or the arbitral tribunal.
In general, arbitral tribunals do not have any powers of compulsion. Therefore, section 602 ACCP allows the arbitral tribunal or one of the parties with the consent of the arbitral tribunal to apply to the courts for the performance of judicial acts that require coercive power, including the collection of evidence or the interrogation of a witness who does not appear voluntarily.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
31. What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?
Austria
In general, Austrian civil procedure has a restrictive approach to document production. However, this does not extend to arbitrations. In international arbitrations, a document production phase is regularly foreseen and conducted using the format of a Redfern Schedule and guidance from the IBA Rules on the Taking of Evidence in International Arbitration.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
32. Is it mandatory to have a final hearing on the merits?
Austria
Section 598 ACCP provides that where the parties have not excluded an oral hearing, the arbitral tribunal shall hold such hearing at an appropriate stage of the proceedings if so requested by a party. In all other cases, it is not mandatory under Austrian law to have a final hearing on the merits.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
33. If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?
Austria
Yes, section 595(2) ACCP explicitly allows hearings and procedural meetings to be conducted at a place other than the seat of arbitration, unless the parties have agreed otherwise.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
Award
34. Can the tribunal decide by majority?
Austria
Yes, pursuant to section 604 ACCP, any decision of the arbitral tribunal, including the award, can (and shall at least) be made by a majority of the arbitrators, unless the parties have agreed that the decision must be unanimous.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
35. Are there any particular types of remedies or relief that an arbitral tribunal may not grant?
Austria
Austrian arbitration law does not contain provisions on the types of remedies that an arbitral tribunal may or may not grant. The available remedies are generally be determined by reference to the law applicable to the merits. However, it is advisable to also take into consideration potential public policy limitations.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
36. Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?
Austria
Austrian civil procedure does not know the concept of dissenting opinions. However, in relation to arbitration, the Austrian Supreme Court has confirmed the admissibility of dissenting opinions.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
37. What, if any, are the legal and formal requirements for a valid and enforceable award?
Austria
Pursuant to section 606 ACCP, awards shall be in writing, must identify the seat of the arbitration and must be dated. The award must be signed by the arbitrators, at least by the majority of arbitrators and if not all of the arbitrators signed the award, it must state the reasons for the lack of signature of the arbitrator who did not sign the award. Further, unless the parties have agreed otherwise, the award shall be reasoned.
For the enforcement of foreign arbitral awards, the standards set out under the New York Convention will apply in most cases.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
38. What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?
Austria
Austrian arbitration law does not set out any firm time limits for the rendering of an award. However, section 594(4) ACCP states that an arbitrator who does not fulfil his or her obligations resulting from the acceptance of his appointment at all or in a timely manner shall be liable to the parties for all damages caused by their wrongful refusal or delay.
Pursuant to section 610 ACCP, either party can request the correction, interpretation or supplementation of the award within four weeks of receipt of the award.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
Costs and interest
39. Are parties able to recover fees paid and costs incurred? Does the "loser pays" rule generally apply in your jurisdiction?
Austria
Austrian civil procedure will generally allocate costs based on the ‘loser pays' rule. This is in part reflected in section 609 ACCP, which requires arbitral tribunals to decide on the reimbursement of costs considering the circumstances of the case, including the outcome of the proceedings.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
40. Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?
Austria
Under Austrian law, interest is usually considered to be a matter of substantive law. Austrian substantive law provides for default rates if applicable.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
Challenging awards
41. Are there any grounds on which an award may be appealed before the courts of your jurisdiction?
Austria
An arbitral award cannot be appealed but only challenged (ie, set aside under Austrian Law). This is the only and exclusive recourse against an award rendered in an arbitration with seat in Austria. The grounds are exhaustively listed in section 611 ACCP:
- a valid arbitration agreement does not exist, or the arbitral tribunal has denied its jurisdiction despite the existence of a valid arbitration agreement, or a party was under an incapacity to conclude a valid arbitration agreement under the law governing its personal status;
- a party was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings, or was unable to present its case for other reasons;
- the award deals with a dispute not covered by the arbitration agreement, or contains decisions on matters beyond the scope of the arbitration agreement or the pleas of the parties; if the default concerns only a part of the award that can be separated, only that part of the award shall be set aside;
- the composition or constitution of the arbitral tribunal was not in accordance with a provision of the arbitration law or with a permissible agreement of the parties;
- the arbitral proceedings were conducted in a manner that conflicts with the fundamental values of the Austrian legal system (procedural ordre public);
- the requirements according to which a court judgment can be appealed by an action for revision under section 530 paragraph (1) numbers 1–5 CCP have been met (note that these grounds for revision relate to the circumstance that the decision was based on a fraudulent action or a forged document, or a criminal verdict that has since been reversed, and that the three-month time period to file the action for setting aside does not apply to this ground);
- the subject matter of the dispute is not arbitrable under Austrian law; or
- the arbitral award conflicts with the fundamental values of the Austrian legal system (substantive ordre public).
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
42. Are there any other bases on which an award may be challenged, and if so what?
Austria
There are additional grounds for setting aside an award where one of the parties in the arbitration was a consumer or an employee.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
43. Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?
Austria
Under Austrian law, parties cannot agree to exclude the right of recourse against an award.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
Enforcement in your jurisdiction
44. Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
Austria
If an award rendered in an arbitration with seat in Austria is set aside, the award is null and void under Austrian law. The decision will no longer have res judicata effect and may be retried.
Regarding foreign awards, the effects depend on the applicable law and the international treaty governing its recognition and enforcement.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
45. What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?
Austria
Generally, Austrian courts will not grant recognition and enforcement of an award that has been set aside at the seat of the arbitration. However, a decision was rendered by the Austrian Supreme Court based on the European Convention under which the enforcement of a foreign award that had been set aside in Belarus was granted as the court found that the reasons for setting aside were violating public policy and thus not compatible with the fundamental values of the Austrian legal system.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
46. To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
Austria
Austrian courts will only consider sovereign immunity in connection with sovereign acts (acta iure imperii), but not in cases where a state or state entity acted in a private capacity (acta iure gestionis). If a state or state entity invokes immunity, the burden of proof lies with the state.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
Further considerations
47. To what extent are arbitral proceedings in your jurisdiction confidential?
Austria
The Austrian arbitration law does not contain provisions regarding the confidentiality of arbitral proceedings. However, it is uncontested that arbitration hearings are private and are to be held in camera.
Usually, the confidentiality of arbitral proceedings will result from a separate party agreement on confidentiality that may, for example, be contained in the arbitration agreement, the main contract or the applicable arbitration rules.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
48. What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?
Austria
Evidence produced and pleadings filed in the arbitration are not protected by an additional layer of confidentiality based merely on the fact that they were filed in an arbitration. Accordingly, such evidence and pleadings can be relied upon by the parties in other proceedings provided that this is not prohibited by any other obligation of confidentiality that the parties may have.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
49. What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
Austria
Austrian lawyers are bound to adhere to the Code of Professional Conduct for Lawyers.
Foreign counsel and arbitrators are considered to be bound by the ethical rules of their own home jurisdiction.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
50. Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?
Austria
Austrian arbitration law is largely based on the UNCITRAL Model Law on International Commercial Arbitration and should, therefore, contain no surprises for practitioners of international arbitration. Overall, Austria is generally considered an arbitration‑friendly jurisdiction.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
51. Is third-party funding permitted in your jurisdiction? If so, are there any rules governing its use?
Austria
There are no express provisions on third-party funding under Austrian law and there is an increasing number of third-party funders active on the Austrian market. However, it is forbidden for attorneys to enter into contingency fee arrangements.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
Infrastructure
1. Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?
Austria
Austria has been a party to the New York Convention since 31 July 1961. The Declaration of Accession dated 13 April 1961 (effective 2 May 1961) contains no declarations or reservations.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
2. Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?
Austria
Austria is, inter alia,aparty to the Protocol on Arbitration Clauses (Geneva Protocol, 1923), the Convention on the Execution of Foreign Arbitral Awards (Geneva Convention, 1927), the European Convention on International Commercial Arbitration (European Convention, 1961), and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention, 1966). Further, Austria is a party to a number of bilateral investment treaties.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
3. Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?
Austria
The Austrian Arbitration Act (dated 2006 and last amended 2014) is largely based on the UNCITRAL Model Law on International Commercial Arbitration with some minor adjustments.
The provisions of the Austrian Arbitration Act apply uniformly to domestic and international arbitrations as well as to commercial and non‑commercial arbitrations that have their seat in Austria. There are, however, special provisions for consumer disputes and for labour law matters.
The Austrian Arbitration Act is enacted in the Austrian Code of Civil Procedure (ACCP) Part 6, Chapter 4 sections 577 to 618.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
4. What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?
Austria
The leading arbitration institution in Austria is the Vienna International Arbitral Centre (VIAC), which is part of the Austrian Federal Economic Chamber. VIAC is widely recognised for its competent and efficient administration of both international and domestic arbitrations under the of the VIAC Rules of Arbitration and Mediation 2021 (Vienna Rules) and boasts an especially strong presence in the CEE.
VIAC also acts as an appointing authority (see Annex 4 of the Vienna Rules) and as administering authority (see Annex 5 of the Vienna Rules). VIAC adopted the VIAC Rules of Investment Arbitration, effective as of 1 July 2021, which is a set of specialised arbitral rules for investment arbitration, including the involvement of sovereign parties and the implication of issues of public interest and public policy.
Further institutions relevant to international arbitration are the International Chamber of Commerce (ICC) represented by a National Committee and, most recently, the Permanent Court of Arbitration (PCA), which has opened an office in Vienna, Austria.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
5. Can foreign arbitral providers operate in your jurisdiction?
Austria
Yes.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
6. Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with, and supportive of, the law and practice of international arbitration?
Austria
Most arbitration-related matters (eg, the challenge of arbitrators or awards) fall within the competence of a specialised senate of the Austrian Supreme Court. This ensures consistency and high-quality decisions by experienced judges knowledgeable in arbitration. In these matters, the Supreme Court acts as first and last instance. There is no appeal available.
For practical reasons, requests for interim measures or enforcement of an award fall into the competence of the lower local courts where the asset that is being targeted is located as first instance. Decisions rendered by these courts can be appealed to the higher courts.
Overall, the judiciary is generally knowledgeable, takes swift decisions and a positive stance towards arbitration.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
Agreement to arbitrate
7. What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?
Austria
Section 581(1) ACCP sets out the content requirements for an arbitration agreement (ie, the arbitration agreement must identify the parties and the legal relationship to which it applies and must express the parties' will to submit present and/or future disputes to arbitration).
Section 583 ACCP sets out the form requirements for an arbitration agreement (ie, the arbitration agreement must be in writing either contained in a written document signed by the parties or in an exchange of communications between the parties providing a record of the agreement). If the form requirements are not met, this defect can be cured by entering into arbitral proceedings without objecting to such defect.
While an arbitration agreement can generally also cover future disputes, an exception applies to consumer and employment matters. For such matters, arbitration agreements can only be concluded after a dispute has arisen and must fulfil additional form requirements (cf sections 617 and 618 ACCP).
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
8. Are any types of dispute non-arbitrable? If so, which?
Austria
Under Austrian law, any claim involving an economic interest that would otherwise be subject to the jurisdiction of the civil courts as well as any dispute regarding which the parties may validly conclude a settlement may be referred to arbitration.
Section 582(2) ACCP enumerates certain civil law matters that are reserved for the jurisdiction of state courts for policy reasons. These are family law matters and all claims based on contracts that are – even only partly – subject to the Tenancy Act or the Non‑Profit Housing Act claims concerning condominium property as well as certain (collective) labour and social security matters.
Criminal, insolvency and public law matters are generally not arbitrable.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
9. Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?
Austria
As a rule, only signatories are bound to the arbitration agreement under Austrian law. However, there are exceptions mainly pertaining to legal successors of a party (eg, in cases of death of a party, corporate mergers or divisions) or singular succession (eg, the assignment of a contract or a receivable). Under certain circumstances, arbitration agreements may also bind insolvency administrators.
Further case law has established that an arbitration clause can bind third-party beneficiaries and can extend to all partners in a corporate partnership if this was so intended by the parties.
Austrian arbitration law does not provide specific rules on joinder of third parties. In ad hoc proceedings they would have to be included by means of a notice of arbitration. However, most institutional rules contain specific provisions on joinder of third parties (see, eg, article 14 Vienna Rules).
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
10. Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?
Austria
Although consolidation of separate arbitral proceedings is not addressed by Austrian arbitration law, it is considered permissible in the Austrian arbitration practice.
Article 15 of the Vienna Rules allows for the consolidation of separate arbitral proceedings, if (i) the parties agree to the consolidation or the arbitrators in the separate arbitrations are the same, and (ii) the place of arbitration is the same.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
11. Is the "group of companies doctrine" recognised in your jurisdiction?
Austria
Austrian law has the principle of strict separation of legal entities that excludes application of the ‘group of companies doctrine'. Accordingly, it is practically impossible to pierce the corporate veil. It is only in very limited cases (eg, violation of capital requirements) that shareholders of a company will be jointly and severally liable together with the company.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
12. Are arbitration clauses considered separable from the main contract?
Austria
The doctrine of separability is recognised by Austrian courts. Accordingly, the arbitration agreement remains valid even if the contract is null and void or terminated, unless this was not the intention of the parties.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
13. Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal's jurisdiction and competence?
Austria
The principle of competence-competence is enshrined in section 592(1) ACCP, which gives the arbitral tribunal the prerogative of deciding on its jurisdiction. The only situation in which a party may turn to the courts to determine an arbitral tribunal's jurisdiction is when an objection to jurisdiction has been raised in the arbitral proceeding, but a decision of the arbitral tribunal thereon cannot be obtained within a reasonable period of time.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
14. Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?
Austria
Under Austrian law, the main prerequisites are that the arbitration agreement must be in writing and shall state the legal relationship between the parties regarding which disputes shall be decided in arbitration. However, in cases of ambiguity the Austrian Supreme Court has consistently applied a pro-arbitration (in favorem validitatis) approach when interpreting and determining the validity and the scope of arbitration agreements.
In cases of enforcement of a foreign award in Austria, an arbitration agreement is considered valid if it meets the form requirements either of article II of the NYC or of section 614 ACCP.
Attention should be paid to the scope of a power of attorney if the arbitration agreement is concluded by proxies.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
15. Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?
Austria
Parties appreciate the benefits of institutional arbitration in Austria. There are no statistics available regarding ad hoc international arbitration. In some ad hoc cases, parties rely solely on the statutory framework of the law, which is supplemented by bespoke procedural rules. However, in most ad hoc cases, parties will agree to supplement the statutory framework with a given set of rules, such as the UNCITRAL Arbitration Rules.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
16. What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.
Austria
Austrian arbitration law does not address multi-party arbitration except in the context of the appointment of arbitrators. Section 587(5) ACCP sets out that if several parties that are under the obligation to jointly appoint one or more arbitrators have not been able to agree upon such appointment within four weeks of receipt of a written notice to do so, the arbitrator or the arbitrators shall, upon request by either party, be appointed by the court, unless the agreed appointment procedure provides otherwise. Should the parties have an agreement for more than one arbitrator, it is mandatory that the total number of arbitrators is uneven.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
Commencing the arbitration
17. How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?
Austria
Austrian arbitration law does not address limitation periods as they are generally considered as a matter of the applicable substantive law.
In general, section 597 ACCP provides that a claim shall be filed within the time agreed by the parties or determined by the arbitral tribunal, the claimant shall state the relief sought and the facts supporting his claim and the respondent shall respond thereto. The parties may but must not submit with their statements all documents they consider to be relevant. According to the Austrian Supreme Court, the initial request of arbitration shall at least contain sufficient information to clarify the claim that is to be submitted to arbitration and the relief sought.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
Choice of law
18. How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?
Austria
According to section 603 ACCP, the substantive law of the dispute is determined by the parties' choice and such choice shall be construed, unless the parties have expressly agreed otherwise, as directly referring to the substantive law of that state and not to its conflict of laws rules. Failing any designation of the applicable statutory provisions or rules of law by the parties, the arbitral tribunal shall apply the statutory provisions it considers appropriate.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
Appointing the tribunal
19. Does the law of your jurisdiction place any limitations in respect of a party's choice of arbitrator?
Austria
Austrian law has no limitations in respect of a party's choice of arbitrator but sitting Austrian judges are prohibited by law from accepting arbitrator mandates.
Austrian law mandates that arbitrators are required to be independent and impartial (cf section 588 ACCP). Accordingly, a prospective arbitrator must disclose any circumstances that are likely to give rise to doubts as to his or her impartiality or independence, prior to accepting an appointment. The obligation to disclose such circumstances remains upright throughout the arbitral proceedings.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
20. Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?
Austria
Yes, non-nationals can act as arbitrators in Austria. Section 595 ACCP allows the arbitral tribunal to convene at any place it considers appropriate for conducting proceedings, especially for deliberations among its members, making decisions, conducting oral hearings and taking evidence – unless otherwise agreed by the parties. If hearings etc are held in Austria, the general visa requirements applicable to the foreign national will have to be observed for entry to Austria.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
21. How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?
Austria
Section 587 ACCP provides for a default mechanism for the appointment of arbitrators that allows either party to apply to the Austrian Supreme Court to appoint an arbitrator. In doing so the court shall have due regard to any qualifications required of the arbitrator by the agreement of the parties and to such considerations as are likely to secure the appointment of an independent and impartial arbitrator.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
22. Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?
Austria
Arbitrators are not afforded immunity from civil liability under Austrian law.Section 594(4) ACCP specifically addresses the liability of arbitrators stating that an arbitrator who does not fulfil his obligations resulting from the acceptance of his appointment at all or in a timely manner shall be liable to the parties for all damages caused by his wrongful refusal or delay.
Although the text of section 594(4) ACCP would seem to restrict an arbitrator's liability to a refusal or a delay in performing his or her obligations, the Austrian Supreme Court has ruled in exceptional cases that an arbitrator may also be liable for erroneous procedural decisions and arbitral awards if the arbitral award is set aside.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
23. Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?
Austria
Austrian arbitration law does not address the issue of arbitrators' fees or security thereof. However, it is common practice for arbitrators to request an advance on their fees from the parties.
In ad hoc arbitrations such advances would usually be placed in an escrow account. If the arbitration is conducted under the Vienna Rules, the advance cost will be fixed and held by VIAC.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
Challenges to arbitrators
24. On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?
Austria
Section 588(2) ACCP provides that an arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to his or her impartiality or independence, or if the arbitrator does not fulfil the qualifications agreed upon by the parties. The standard is the objective point of view (ie, it is decisive whether circumstances exist that, from the point of view of a reasonable third party knowing the relevant facts, could give rise to doubts regarding the arbitrator's independence or impartiality).
To assess the arbitrator's independence and impartiality, the Austrian Supreme Court frequently refers to the IBA Guidelines and applies a standard comparable to that applied by leading arbitral institutions.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
Interim relief
25. What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?
Austria
Unless otherwise agreed by the parties, arbitral tribunals may award preliminary or interim relief. However, an arbitral tribunal must first grant the other party an opportunity to be heard, ie such relief may not be granted ex parte (cf section 593 ACCP).
While the parties may exclude an arbitral tribunal's power to grant interim relief, Austrian law prohibits exclusion of interim relief granted by courts, be it before or after the constitution of the arbitral tribunal.
Austrian law does not know the instrument of anti-suit injunctions. However, if an arbitral tribunal grants preliminary or interim relief that contains a remedy unknown to Austrian law, section 593 ACCP allows the enforcing court to be guided by the purpose to be achieved by the remedy and to then grant an equivalent remedy available under Austrian law.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
26. Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?
Austria
Austrian civil procedure allows for security for costs. However, the matter is not specifically addressed under Austrian arbitration law. The power to order a party to provide security for costs is understood to be implied in the competence of a court or tribunal to award interim relief. Some institutional rules provide specific provisions for security of costs (see, eg, article 33(6) of the Vienna Rules).
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
Procedure
27. Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (eg, general duties of the tribunal and/or the parties)?
Austria
Austrian arbitration law grants the parties extensive autonomy in determining the conduct of the arbitration. Accordingly, the ACCP contains only very few mandatory legal provisions providing that certain mandatory guarantees are respected (eg, the right to be heard, equal treatment of the parties). However, most provisions in the ACCP are designed as (waivable) default rules that govern the arbitral procedure if the parties have failed to provide for institutional or other rules to govern their arbitration proceedings.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
28. What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?
Austria
In cases where the respondent fails to participate in an arbitration, section 600 ACCP allows the arbitration to continue and an award to be rendered, provided that the respondent has been notified of the arbitration.
Section 580(2) ACCP contains a rule that provided a party has knowledge of the arbitral proceedings but the whereabouts remain unknown despite reasonable inquiries, any written communication is deemed to have been received on the day upon which orderly delivery was demonstrably attempted at a place indicated by the party in the arbitration agreement or subsequently indicated to the other party or to the arbitral tribunal and that has not hitherto been revoked upon indication of a new address.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
29. What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Arbitration generally be taken into account?
Austria
Section 599(1) ACCP gives the arbitral tribunal wide discretion regarding the admissibility of evidence as well as the taking and evaluating of evidence.
In practice, most arbitrators will take into consideration the legal background of the parties and in many cases will adopt a hybrid approach (ie, will take both civil and common law rules on evidence into consideration). Moreover, the IBA Rules on the Taking of Evidence in International Arbitration are frequently referred to as guidelines.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
30. Will the courts in your jurisdiction play any role in the obtaining of evidence?
Austria
Austrian arbitration law provides that courts shall only become involved in arbitration proceedings upon the request of the parties or the arbitral tribunal.
In general, arbitral tribunals do not have any powers of compulsion. Therefore, section 602 ACCP allows the arbitral tribunal or one of the parties with the consent of the arbitral tribunal to apply to the courts for the performance of judicial acts that require coercive power, including the collection of evidence or the interrogation of a witness who does not appear voluntarily.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
31. What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?
Austria
In general, Austrian civil procedure has a restrictive approach to document production. However, this does not extend to arbitrations. In international arbitrations, a document production phase is regularly foreseen and conducted using the format of a Redfern Schedule and guidance from the IBA Rules on the Taking of Evidence in International Arbitration.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
32. Is it mandatory to have a final hearing on the merits?
Austria
Section 598 ACCP provides that where the parties have not excluded an oral hearing, the arbitral tribunal shall hold such hearing at an appropriate stage of the proceedings if so requested by a party. In all other cases, it is not mandatory under Austrian law to have a final hearing on the merits.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
33. If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?
Austria
Yes, section 595(2) ACCP explicitly allows hearings and procedural meetings to be conducted at a place other than the seat of arbitration, unless the parties have agreed otherwise.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
Award
34. Can the tribunal decide by majority?
Austria
Yes, pursuant to section 604 ACCP, any decision of the arbitral tribunal, including the award, can (and shall at least) be made by a majority of the arbitrators, unless the parties have agreed that the decision must be unanimous.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
35. Are there any particular types of remedies or relief that an arbitral tribunal may not grant?
Austria
Austrian arbitration law does not contain provisions on the types of remedies that an arbitral tribunal may or may not grant. The available remedies are generally be determined by reference to the law applicable to the merits. However, it is advisable to also take into consideration potential public policy limitations.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
36. Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?
Austria
Austrian civil procedure does not know the concept of dissenting opinions. However, in relation to arbitration, the Austrian Supreme Court has confirmed the admissibility of dissenting opinions.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
37. What, if any, are the legal and formal requirements for a valid and enforceable award?
Austria
Pursuant to section 606 ACCP, awards shall be in writing, must identify the seat of the arbitration and must be dated. The award must be signed by the arbitrators, at least by the majority of arbitrators and if not all of the arbitrators signed the award, it must state the reasons for the lack of signature of the arbitrator who did not sign the award. Further, unless the parties have agreed otherwise, the award shall be reasoned.
For the enforcement of foreign arbitral awards, the standards set out under the New York Convention will apply in most cases.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
38. What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?
Austria
Austrian arbitration law does not set out any firm time limits for the rendering of an award. However, section 594(4) ACCP states that an arbitrator who does not fulfil his or her obligations resulting from the acceptance of his appointment at all or in a timely manner shall be liable to the parties for all damages caused by their wrongful refusal or delay.
Pursuant to section 610 ACCP, either party can request the correction, interpretation or supplementation of the award within four weeks of receipt of the award.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
Costs and interest
39. Are parties able to recover fees paid and costs incurred? Does the "loser pays" rule generally apply in your jurisdiction?
Austria
Austrian civil procedure will generally allocate costs based on the ‘loser pays' rule. This is in part reflected in section 609 ACCP, which requires arbitral tribunals to decide on the reimbursement of costs considering the circumstances of the case, including the outcome of the proceedings.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
40. Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?
Austria
Under Austrian law, interest is usually considered to be a matter of substantive law. Austrian substantive law provides for default rates if applicable.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
Challenging awards
41. Are there any grounds on which an award may be appealed before the courts of your jurisdiction?
Austria
An arbitral award cannot be appealed but only challenged (ie, set aside under Austrian Law). This is the only and exclusive recourse against an award rendered in an arbitration with seat in Austria. The grounds are exhaustively listed in section 611 ACCP:
- a valid arbitration agreement does not exist, or the arbitral tribunal has denied its jurisdiction despite the existence of a valid arbitration agreement, or a party was under an incapacity to conclude a valid arbitration agreement under the law governing its personal status;
- a party was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings, or was unable to present its case for other reasons;
- the award deals with a dispute not covered by the arbitration agreement, or contains decisions on matters beyond the scope of the arbitration agreement or the pleas of the parties; if the default concerns only a part of the award that can be separated, only that part of the award shall be set aside;
- the composition or constitution of the arbitral tribunal was not in accordance with a provision of the arbitration law or with a permissible agreement of the parties;
- the arbitral proceedings were conducted in a manner that conflicts with the fundamental values of the Austrian legal system (procedural ordre public);
- the requirements according to which a court judgment can be appealed by an action for revision under section 530 paragraph (1) numbers 1–5 CCP have been met (note that these grounds for revision relate to the circumstance that the decision was based on a fraudulent action or a forged document, or a criminal verdict that has since been reversed, and that the three-month time period to file the action for setting aside does not apply to this ground);
- the subject matter of the dispute is not arbitrable under Austrian law; or
- the arbitral award conflicts with the fundamental values of the Austrian legal system (substantive ordre public).
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
42. Are there any other bases on which an award may be challenged, and if so what?
Austria
There are additional grounds for setting aside an award where one of the parties in the arbitration was a consumer or an employee.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
43. Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?
Austria
Under Austrian law, parties cannot agree to exclude the right of recourse against an award.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
Enforcement in your jurisdiction
44. Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
Austria
If an award rendered in an arbitration with seat in Austria is set aside, the award is null and void under Austrian law. The decision will no longer have res judicata effect and may be retried.
Regarding foreign awards, the effects depend on the applicable law and the international treaty governing its recognition and enforcement.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
45. What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?
Austria
Generally, Austrian courts will not grant recognition and enforcement of an award that has been set aside at the seat of the arbitration. However, a decision was rendered by the Austrian Supreme Court based on the European Convention under which the enforcement of a foreign award that had been set aside in Belarus was granted as the court found that the reasons for setting aside were violating public policy and thus not compatible with the fundamental values of the Austrian legal system.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
46. To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
Austria
Austrian courts will only consider sovereign immunity in connection with sovereign acts (acta iure imperii), but not in cases where a state or state entity acted in a private capacity (acta iure gestionis). If a state or state entity invokes immunity, the burden of proof lies with the state.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
Further considerations
47. To what extent are arbitral proceedings in your jurisdiction confidential?
Austria
The Austrian arbitration law does not contain provisions regarding the confidentiality of arbitral proceedings. However, it is uncontested that arbitration hearings are private and are to be held in camera.
Usually, the confidentiality of arbitral proceedings will result from a separate party agreement on confidentiality that may, for example, be contained in the arbitration agreement, the main contract or the applicable arbitration rules.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
48. What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?
Austria
Evidence produced and pleadings filed in the arbitration are not protected by an additional layer of confidentiality based merely on the fact that they were filed in an arbitration. Accordingly, such evidence and pleadings can be relied upon by the parties in other proceedings provided that this is not prohibited by any other obligation of confidentiality that the parties may have.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
49. What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
Austria
Austrian lawyers are bound to adhere to the Code of Professional Conduct for Lawyers.
Foreign counsel and arbitrators are considered to be bound by the ethical rules of their own home jurisdiction.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
50. Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?
Austria
Austrian arbitration law is largely based on the UNCITRAL Model Law on International Commercial Arbitration and should, therefore, contain no surprises for practitioners of international arbitration. Overall, Austria is generally considered an arbitration‑friendly jurisdiction.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
51. Is third-party funding permitted in your jurisdiction? If so, are there any rules governing its use?
Austria
There are no express provisions on third-party funding under Austrian law and there is an increasing number of third-party funders active on the Austrian market. However, it is forbidden for attorneys to enter into contingency fee arrangements.
Answer contributed by Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel
KNOETZL
Originally published by GAR
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