AUSTRIA Law and Practice Contributed by: Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel, KNOETZL
arbitral tribunal if it considers the delay sufficiently excused. 5.4 Standard of Judicial Review for Jurisdiction/Admissibility In setting-aside proceedings, the Austrian Supreme Court may assess questions of jurisdiction without being bound to the findings of the arbitral tribunal. In practice, there is a discernible bias in favour of upholding arbitral jurisdiction in review proceedings. 5.5 Breach of Arbitration Agreement As mentioned in 5.2 Circumstances for Court Inter- vention , the approach of Austrian courts towards a party who commences court proceedings in breach of an arbitration agreement will be to dismiss the action, unless the other party pleads on the merits of the dispute without raising a jurisdictional objection or if – after an objection has been raised – the court finds that the arbitration agreement does not exist or is incapable of being performed. The courts are gener - ally arbitration-friendly and will observe an arbitration agreement. 5.6 Jurisdiction Over Third Parties Austrian law does not contain provisions allowing an arbitral tribunal to assume jurisdiction over individu - als or entities that are neither party to an arbitration agreement nor signatories to the contract containing the arbitration agreement. However, case law has established that both single and universal legal suc - cessors, assignees of a claim or contract, and third- party beneficiaries of contracts are bound by an arbi - tration agreement even if they are not signatories to the contract (see, for example, OGH 4 Ob 43/21h).
in Austria if it is ordered in writing, signed and served on the parties. Enforcement of interim relief will only be refused if the order suffers from a defect that would allow it to be set aside (if the seat of arbitration is in Austria) or to be refused recognition or enforcement (if the seat of the arbitration is outside Austria). If an arbitral tribunal grants preliminary or interim relief that contains a remedy unknown to Austrian law, Aus - trian arbitration law provides that the enforcing court will look at the purpose to be achieved by the rem - edy and – by means of interpretation, reformulation or even modification of the remedy granted by the arbitral tribunal – grant an equivalent remedy available under Austrian law. 6.2 Role of Courts Under Austrian arbitration law, parties may turn to the courts or the arbitral tribunal to grant interim relief while arbitration proceedings are pending. There are no provisions on emergency arbitrations. Although the parties may by agreement exclude the arbitral tribunal’s power to grant interim relief, the courts can always be called upon to grant interim relief upon the application of a party both before and after the constitution of the arbitral tribunal. Interim relief granted by a court can only be lifted by the courts and cannot be reversed by an arbitral tribunal. Only the courts have the power to enforce preliminary or interim relief awarded by an arbitral tribunal. Courts may refuse to enforce measures that would be incompatible with: • an Austrian court measure that was either request - ed or issued previously; or • a foreign court measure that was issued previously Austrian arbitration law does not contain a provision explicitly granting arbitral tribunals the power to order security for costs. However, this power is understood to be implied in the competence of an arbitral tribunal to award preliminary or interim relief and in the fact that Austrian courts may order security for costs if the enforcement of the cost decision is seriously impaired and must be recognised. 6.3 Security for Costs
6. Preliminary and Interim Relief 6.1 Types of Relief
Unless otherwise agreed by the parties, arbitral tri - bunals may award preliminary or interim relief. Such relief may only be awarded by the arbitral tribunal after the other party has been given an opportunity to be heard. A further requirement is that the enforcement of a claim would otherwise be frustrated or that there is a danger that one of the parties may suffer irreparable harm. The relief granted is binding and is enforceable
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