AUSTRIA Law and Practice Contributed by: Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel, KNOETZL
If a challenge pursuant to an agreed challenge pro - cedure (eg, contained in institutional rules) is not suc - cessful, the challenging party may then apply to the Austrian Supreme Court for a review of the challenge decision within four weeks of receiving the decision. The option to appeal to the Austrian Supreme Court in these cases is mandatory and may not be waived. The legal standard for the challenge of an arbitrator is: • justifiable doubts concerning their impartiality or independence; or • the failure of an arbitrator to meet specific require - ments set out in the parties’ agreement. The Austrian Supreme Court routinely applies the International Bar Association Guidelines on Conflicts of Interest in International Arbitration as non-binding guidelines. The mere fact that an arbitrator has not disclosed circumstances that may give rise to doubts concerning their impartiality or independence alone is not per se a ground for a challenge. 4.5 Arbitrator Requirements Arbitrators are required to be independent and impar - tial. Prior to accepting an appointment, the prospec - tive arbitrator must disclose any circumstances that are likely to give rise to doubts concerning their impar - tiality or independence. The obligation to disclose such circumstances is ongoing throughout the arbitral proceedings. According to decisions of the Austrian Supreme Court, the test is whether the circumstances of the case objectively lead to justifiable doubts regarding the arbitrator’s independence and impartiality (see most recently, for example, OGH 18 OCg 3/24a).
including a partial award on jurisdiction. If the place of arbitration is Austria and such proceedings are initi - ated, the question of jurisdiction will be reviewed and ultimately decided by the Austrian Supreme Court (see, for example, OGH 18 OCg 4/24y). 5.2 Circumstances for Court Intervention Under Austrian law, the courts may only address mat - ters concerning arbitration in limited cases and upon the request of a party. The rules on jurisdiction generally favour arbitration over court proceedings. Therefore, if a court action involving a matter that is subject to an arbitration agreement is initiated, the court must dismiss the claim – unless either: • the other party enters into the merits of the dispute without raising a jurisdictional objection; or • after an objection has been raised, the court finds that the arbitration agreement does not exist or is incapable of being performed. If an action is brought before a court while arbitral pro - ceedings are already pending, the court must dismiss the action, unless a party has already challenged the jurisdiction of the arbitral tribunal in the arbitration pro - ceedings and ‒ exceptionally – if the arbitral tribunal is not expected to reach a decision within a reason - able period of time. The initiation of court proceedings does not prevent an arbitration from being initiated or continued, nor an award from being rendered. Ultimately, the issue of whether (or not) an arbitral tri - bunal has jurisdiction may also be raised as a ground for setting aside an arbitral award, including an award on jurisdiction. 5.3 Timing of Challenge The plea that the arbitral tribunal does not have juris - diction must be raised no later than the first plead - ing on the substance of the dispute. A party is not precluded from raising such plea by the fact that it has appointed an arbitrator. The plea that the arbitral tribunal is exceeding the scope of its jurisdiction must be raised as soon as the claim beyond the arbitral tribunal’s jurisdiction is made. A belated objection to the tribunal’s jurisdiction may be considered by the
5. Jurisdiction 5.1 Challenges to Jurisdiction
Austrian arbitration law recognises the principle of “competence-competence”. The arbitral tribunal may rule on a party’s challenge to its own jurisdiction. Lack of jurisdiction of the arbitral tribunal may also be raised as a ground to set aside an arbitral award,
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