Arbitration Austria

ARBITRATION
 
Arbitration is one of the modes of settling civil disputes without going to the usual course of court action. The arbitration is the out come of an agreement that a legal dispute shall be settled by one or more arbitrators is valid so far the parties are entitled to conclude a settlement concerning the subject matter of the dispute.
 
An arbitration agreement submitting future disputes arising from a specified legal relationship (i.e contract/agreement) to arbitration by one or more arbitrators is also valid. The arbitration agreement must be in writing or be contained in telegrams or telex exchanged by the parties.
 
PROCEDURE
  1. The procedure of arbitration begins with the appointment of arbitrators followed by submission of claims, answers, evidence and final award.
APPOINTMENT OF ARBITRATOR
  1. No one is obliged to accept appointment as arbitrator. If he has reasonable cause an arbitrator may resign even after accepting appointment.
  2. If the arbitration agreement contains neither the names of the arbitrators nor a provision concerning number and appointment of arbitrators, each party shall appoint an arbitrator, and they in turn shall appoint the chairman of the arbitral tribunal.
  3. A party which is obliged to make an appointment of an arbitrator pursuant to an arbitration agreement can be required by the opposing party to appoint an arbitrator within 14 days and to give notice to the party making the demand.
  4. If the appointment is to be made by a third party, either party may make the demand.
  5. The demand may also be made if the arbitrator who has already been appointed pursuant to the arbitration agreement refuses to accept office as arbitrator or refuses to fulfil his obligations or dies or is challenged successfully or ceases to act for any other reason.
  6. If the party making the demand also has to appoint an arbitrator, the demand shall also give notice of the person appointed as arbitrator.
  7. The exchange of demands and notices can be made by post or through a public notary.
  8. A person who is called on to appoint an arbitrator is bound by an appointment made by him as soon as the opposing party or one of the parties has received notice of the appointment.
  9. If an appointment is not made within the proper time or if the arbitrators cannot agree upon a chairman, the Court shall upon application make the appointment.
  10. The application should be brought before the Court which would have been competent to hear the dispute
  11. in first instance in the absence of an arbitration agreement.
  12. The applicant does not need to be represented by an attorney, even before the Superior Court of First Instance
  13. If the parties cannot agree on the arbitrator to be appointed by them jointly, the Court shall pronounce the rescission of the arbitration agreement.
  14. A party which appoints an arbitrator alone or jointly with the opposing party is entitled to challenge him only if the reason for the challenge arose or became known to the party after the appointment.
THE PROCEEDING
  1. The procedure shall be determined by the arbitrators in their discretion unless the parties have agreed otherwise in the arbitration agreement or in a subsequent written agreement
  2. However, as per the practice the party which is claiming on the disputed matter must file its claim statement with the arbitrators if no objection has been raised by the opposite party.
  3. Thereafter the opposite party will be given an opportunity to file its counter claim within a reasonable time.
  4. The arbitrators shall hear the parties and investigate the facts before making their award.
  5. The arbitrators are not entitled to administer the oath to the parties, witnesses and experts, who appear voluntarily before them.
  6. They may not apply coercive measures or award punishments against parties or other persons
  7. Those judicial acts considered necessary by the arbitrators but which they have no jurisdiction to undertake will be carried out by the State Court which has jurisdiction on the application of the arbitrators.
  8. In case of doubt the application is to be made to the District Court in whose district the act is to be carried out or the evidence to be taken.
  9. The Court to which the application is made shall accede to it insofar as it is not legally inadmissible.
  10. If more than two arbitrators are to decide, the award shall be made by an absolute majority unless the arbitration agreement contains anything to the contrary.
  11. If the necessary majority for taking a decision, or where there are only two arbitrators, unanimity cannot be reached the arbitrators must inform the parties.
Conditions where the award may be set aside
  1. if an arbitration agreement if it is proved that the agreement does not exist,
  2. if the arbitration agreement has become invalid before the making of the award or has ceased to have effect for the particular case or if a party was unable to conclude the arbitration agreement because of its status,
  3. if the party applying to have the award set aside was unable to present its case in the proceedings before the arbitrators or
  4. if required by statute to be represented by an agent or guardian was not so represented in those proceedings unless in the latter case the procedure has been subsequently properly ratified.
  5. if statutory or contractual provisions regarding the composition of the arbitral tribunal or the method of reaching a decision have been infringed or
  6. if the original of the award has not been signed in accordance with the provisions of Article 592(2) of the Austria Code of Civil Procedure.
  7. if a challenge to an arbitrator has been rejected unjustifiably by the arbitral tribunal
  8. if the arbitral tribunal dealt with matters beyond those referred to it
  9. if the award is incompatible with the basic principles of the Austrian legal system or if it infringes mandatory provisions of the law, 
  1. An application to set aside the award must be made within a time limit of three months failing which the application will be time barred.
  2. The time limit begins to run on the day of service of the award on the party concerned. 
COST OF ARBITRATION

  1. The cost of arbitration may vary from time to time.
  2. At any time prior to issuance of the award the arbitrator(s) may require each party to post security for 100% of the estimated arbitrator(s) fees and expenses.
  3. But the fee of the arbitrators may be fixed prior to the appointment of arbitrators either in the arbitration agreement or at the time of appointment.