AUSTRIA Law and Practice Contributed by: Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel, KNOETZL
(ie, due to the lack of enforceability of a judgment abroad). The Vienna Rules contain a provision granting an arbi - tral tribunal the power to order security for costs.
The arbitral tribunal may also grant preliminary or interim relief. It has the duty to treat the parties fairly and must ensure that each party’s right to be heard is observed. Every arbitrator has the duty to remain independent and impartial throughout the arbitration and has an ongoing obligation to disclose any circum - stances that may call their independence or impartial - ity into question. 7.4 Legal Representatives There are no particular qualifications or other require - ments for legal representatives in arbitration pro - ceedings. Notably, there are no restrictions as to the nationality and/or qualification of counsel. In proceedings to set aside an arbitral award, there is an obligation to be represented by a lawyer who is admitted to the Bar in Austria. 8. Evidence 8.1 Collection and Submission of Evidence Austrian arbitration law does not contain any explicit provisions regarding the collection and submission of evidence. In practice, most arbitrators adopt a hybrid approach and will take both civil- and common- law rules on evidence into consideration. By way of example, extensive discovery is rare in international arbitrations conducted in Austria, whereas document production, the use of written witness statements, and extensive cross-examination are standard features of arbitral proceedings in Austria. Although the client-attorney relationship is privileged under Austrian law, the scope and rules regarding legal privilege are regulated according to the civil law tradition and thus differ from the common-law con - cept of privilege. 8.2 Rules of Evidence Austrian law does not contain rules of evidence that apply specifically to arbitral proceedings. The gen - eral principle is the free evaluation of evidence. The International Bar Association Rules on the Taking of Evidence in International Arbitration are frequently referred to as guidelines.
7. Procedure 7.1 Governing Rules
Austrian arbitration law grants the parties extensive autonomy in determining the conduct of the arbitra - tion, with only a few mandatory legal provisions that cannot be waived by agreement of the parties. It also provides a framework of default rules that govern the arbitral procedure if the parties have failed to provide for (institutional or other) rules to govern their arbitra - tion proceedings. 7.2 Procedural Steps The parties are largely free to agree on the manner in which arbitration proceedings are to be conducted. In the absence of an agreement (which may also be a reference to institutional rules), Austrian arbitration law applies as a default rule, and it is otherwise at the dis - cretion of the arbitral tribunal to determine the proce - dure. Under the Vienna Rules, the arbitrators are free to conduct the proceedings at their discretion (without being required to apply the Austrian non-mandatory arbitration rules), subject to mandatory law and if the parties have not agreed otherwise. As a mandatory requirement, the arbitrators must observe the parties’ right to fair treatment and each party’s right to be heard. 7.3 Powers and Duties of Arbitrators The arbitral tribunal has, inter alia, powers to decide on: • its own jurisdiction as well as the merits of the case; • the conduct of the proceedings, where there is no agreement of the parties on the procedure; and • the admissibility of evidence, and to determine its relevance, materiality and weight.
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