AUSTRIA Law and Practice Contributed by: Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel, KNOETZL
3.4 Validity Although legislation governing arbitration in Austria is based on the UNCITRAL Model Law, the specif - ic wording of Article 16 (1) of the UNCITRAL Model Law concerning separability was not adopted. How - ever, the doctrine of separability is recognised by the courts, which evaluate the question of the validity of an arbitration clause contained in an invalid contract on a case-by-case basis by interpreting the intention of the parties (see, for example, OGH 18 OCg 1/15v). In practice, this will usually lead to the determination that the parties’ intent was that the arbitration agree - ment remains valid if the contract is null and void or terminated. Where the main contract is terminated by consent, the courts have held that the arbitration clause contained in the contract may also be consid - ered terminated if the parties’ intention was to termi - nate the entire contractual relationship. The parties are free to agree on a procedure to select the arbitrators. The only limitation under Austrian arbi - tration law is that an arbitral tribunal must not con - sist of an even number of arbitrators and that sitting Austrian judges are prohibited by law from accepting arbitrator mandates. 4.2 Default Procedures Austrian law provides for a default procedure if the parties have failed to designate a method for select - ing arbitrators or if the chosen selection procedure fails. However, in most cases, the parties will have chosen a set of institutional arbitration rules that deal with this issue. As a default, Austrian law provides that there shall be three arbitrators. In principle, each party shall nomi - nate the same number of arbitrators. However, Aus - trian law does allow for the joint appointment of one arbitrator by several parties – for example, in the case of multiparty arbitrations. 4. The Arbitral Tribunal 4.1 Limits on Selection If the parties have not determined a procedure for the appointment of the arbitrators, the default rule is:
• a sole arbitrator will be jointly appointed by agree - ment of the parties; and • a panel of arbitrators will be appointed by each party appointing one arbitrator and then these two party-appointed arbitrators will appoint the presi - dent of the arbitral tribunal. If a party fails to appoint an arbitrator or if no agree - ment can be found regarding the appointment of a sole arbitrator or the president of the arbitral tribunal or in multiparty arbitrations, a party may apply to the Austrian Supreme Court to make the default appoint - ment. 4.3 Court Intervention Courts are only involved in the appointment of arbitra - tors upon the application of (one of) the parties to sup - port the arbitral process. If there is no default proce - dure agreed upon by the parties, a party can request the Austrian Supreme Court to appoint an arbitrator if the other party fails to do so, or if no agreement can be reached regarding the appointment of an arbitrator, or in multiparty arbitrations. The Austrian Supreme Court will give due regard to the requirements provided for in the parties’ agreement if such agreement exists (see, for example, OGH 18 ONc 3/24x). Unless the par - ties have provided otherwise, the courts may also be called upon to decide on the application to remove an arbitrator (eg, owing to lack of independence or impartiality). 4.4 Challenge and Removal of Arbitrators Austrian law provides for a default procedure if the parties have failed to agree on a challenge procedure (eg, by reference to institutional rules). The challenging party must submit a written statement of the reasons for the challenge to the arbitral tribunal, which gives the challenged arbitrator the opportunity to resign from office, or the other party may agree that the chal - lenged arbitrator will be removed. If the challenged arbitrator does not resign or is not removed upon mutual agreement of the parties, the arbitral tribunal (including the challenged arbitrator) must decide on the challenge. If the challenge is unsuccessful before the arbitral tribunal, the challenging party may within four weeks apply to the Austrian Supreme Court as the court of first and last instance to decide on the challenge.
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