AUSTRIA Law and Practice Contributed by: Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel, KNOETZL
violation of the right to be heard if a party is not grant - ed the opportunity to comment on the other party’s cost submission. Under the Vienna Rules, the arbitral tribunal may – at any stage of the arbitral proceedings and at the request of a party – make a decision on legal costs (ie, excluding the administrative and arbitrator’s fees) and order payment. This is primarily intended to apply in cases with separate phases (eg, in the case of bifurca - tion between jurisdiction and merits). Within three months of the notification of the arbitral award, a party is entitled to initiate a setting-aside action based on one or more of the following grounds: • a valid arbitration agreement does not exist, or the arbitral tribunal has denied its jurisdiction despite the existence of a valid arbitration agreement, or a party was lacked the capacity to conclude a valid arbitration agreement under the law governing its personal status; • a party was not given proper notice of the appoint - ment of an arbitrator or of the arbitral proceedings, or was unable to present its case for other reasons; • the award deals with a dispute not covered by the arbitration agreement, or contains decisions on matters beyond the scope of the arbitration agree - ment or the pleas of the parties – if the default concerns only a part of the award that can be separated, only that part of the award shall be set aside; 11. Review of an Award 11.1 Grounds for Appeal • the composition or constitution of the arbitral tribu - nal was not in accordance with a provision of the arbitration law or with a permissible agreement of the parties; • the arbitral proceedings were conducted in a man - ner that conflicts with the fundamental values of the Austrian legal system (ordre public); • the requirements according to which a court judg - ment can be appealed by an action for revision under Section 530, paragraph 1, numbers 1–5 of the CCP have been met (note that these grounds for revision relate to the scenario in which the deci -
sion was based on a fraudulent action or a forged document ‒ or a criminal verdict that has since been reversed ‒ and that the three-month time period to file the action for setting aside does not apply in this circumstance); • the subject matter of the dispute is not arbitrable under Austrian law; or • the arbitral award conflicts with the fundamental values of the Austrian legal system (ordre public). There are additional grounds to set aside an arbitral award rendered in arbitral proceedings in which either a consumer or an employee was involved. The action to set aside an award is to be filed with the Austrian Supreme Court, which will decide as first and last instance – ie, without the possibility of a fur - ther appeal. Practice has shown that a well-reasoned decision will usually be rendered within six to eight months. 11.2 Excluding/Expanding the Scope of Appeal Under Austrian law, parties cannot agree to exclude or expand the scope of an appeal or challenge. 11.3 Standard of Judicial Review It is firmly established in the case law of the Austrian Supreme Court that there is no révision au fond of the merits of the case (OGH 18 OCg 1/24g). This principle is strictly applied, and the Austrian Supreme Court has consistently refused to entertain a review of the merits of the arbitral decision when claimants in setting-aside proceedings have requested this in the guise of annul - ment grounds.
12. Enforcement of an Award 12.1 New York Convention
Austria has ratified the New York Convention with - out reservation. Austria is also a contracting state to several other multilateral conventions on the rec - ognition and enforcement of arbitral awards, includ - ing the 1961 European Convention on International Commercial Arbitration and the Geneva Convention on the Execution of Foreign Arbitral Awards (1927), as well as a number of bilateral agreements governing
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