AUSTRIA Law and Practice Contributed by: Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel, KNOETZL
3. The Arbitration Agreement 3.1 Enforceability
dispute between the beneficiaries and the foundation (OGH 18 OCg 1/21b). In 2024, the Austrian Supreme Court addressed the objective arbitrability of disputes concerning share - holder resolutions in private limited partnerships if only some, but not all shareholders are parties to the arbitration. The Austrian Supreme Court ruled that the arbitration must ensure the inclusion of all sharehold - ers. In the absence of a mechanism that includes all shareholders and ensures legal effect on all share - holders, such shareholder disputes are objectively not arbitrable (OGH 18 OCg 3/22y). 3.3 National Courts’ Approach Austrian arbitration law does not provide rules to determine the law applicable to the arbitration agree - ment. The Austrian Supreme Court applies the con - flict-of-laws rule contained in Article V (1) lit a of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the “New York Conven - tion”) in order to determine the law applicable to the arbitration agreement outside the context of enforce - ment proceedings. Accordingly, the Austrian Supreme Court applies the law selected by party agreement. Such choice of law may also be agreed implicitly. A choice-of-law clause in the main contract may also extend to the arbitration agreement. At the same time, the Austrian Supreme Court has recognised the separate legal nature of an arbitration agreement and has emphasised that it is appropri - ate to determine the law applicable to an arbitration agreement on a case-by-case basis (see, for example, OGH 18 OCg 1/15v). In the absence of a choice of law, the law of the seat of the arbitration governs the arbitration agreement (see, for example, OGH 3 Ob 153/18y). Austrian legislation and the courts are arbitration- friendly in terms of enforcing arbitration agreements. In practice, courts apply the principle of “in favorem validitatis” – ie, when in doubt, the courts will inter - pret the intended scope of an agreement to favour arbitration (see, for example, OGH 18 OCg 6/20m and recently OGH 4 Ob 55/25d).
Austrian law requires that the arbitration agreement must identify the parties and the dispute or a defined legal relationship that are subject to the arbitration clause. Furthermore, the arbitration agreement must be in writing, either as part of a document signed by the parties or as an exchange of letters, telefax, emails or any other means of communication that provides a record of the arbitration agreement. As regards the exchange of documents, the Austrian Supreme Court has clarified that “exchanged documents” do not need to be signed, regardless of the means of communication used (see, for example, OGH 18 OCg 1/15v). Additional form requirements must be met if consumers or employees are parties to the arbitration agreements. 3.2 Arbitrability The definition of arbitrability is broad. The general rule is that pecuniary claims are usually arbitrable, where - as non-pecuniary claims are arbitrable if the parties have the capacity to enter into a settlement agreement with regard to the specific claim at issue. Disputes that fall under the competence of the administrative authorities are not arbitrable. Family law matters and all claims based on contracts that are – even only partly – subject to the Tenancy Act ( Mietrechtsgesetz ) or the Non-Profit Housing Act ( Wohnungsgemeinnützigkeitsgesetz ) cannot be made subject to an arbitration agreement, nor can claims concerning condominium property. In addition, certain (collective) labour and social security matters are not arbitrable. Disputes involving consumers or employees may only be submitted to arbitration (with additional form requirements) after the dispute has arisen. The addi - tional form requirements are extensive and lead to a very high threshold for validly concluding an arbitration agreement with consumers or employees, rendering arbitration agreements in these areas impracticable. In this context, the Austrian Supreme Court clarified that these restrictions do not extend to beneficiaries of a private foundation ( Privatstiftung ) in the event of a
15 CHAMBERS.COM
Powered by FlippingBook