AUSTRIA
I. INTRODUCTION: ARBITRATION IN AUSTIRA – HISTORY AND INFRASTRUCTURE
A. History and Current Legislation on Arbitration
1. Historical evolution of law relating to arbitration
2. Current law
a) Domestic arbitration law
b) International arbitration law
3. Law reform projects
4. Confidentiality and publication of awards
a) Privacy of proceedings
b) Publication of awards
B. Arbitration Infrastructure and Practice in Austria
1. Major arbitration institutions
2. Number of cases and other statistics
3. Development of arbitration compared with litigation
II. CURRENT LAW AND PRACTICE
A. Arbitration Agreement
1. Types of validity of agreement
a) Clauses and submission agreements
b) Minimum essential content
c) Form requirements
d) Conclusion of an arbitration agreement by proxy
e) Incorporation by reference
f) Arbitration clauses in articles of association
g) Interpretation
2. Enforcing arbitration agreements
a) Declaratory actions in court
b) Applications to compel or stay arbitration
c) Anti-suit and other injunctions
3. Effects on third parties
a) Extension of the agreement over third parties
i. Succession, transfer of contractual rights and subrogation
ii. Further cases of extension
b) Other effects
4. Termination and breach
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
