AUSTRIA Trends and Developments Contributed by: Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel, KNOETZL
Case-Law: Pragmatic and Pro-Arbitration Jurisprudence of the Austrian Courts
tration proceedings were already pending at the time of the opening of the insolvency proceedings. These two factors combined has recently led to a cascade of arbitration proceedings that deal with the effects of insolvency. A significant case is the insol - vency of Signa Holding and affiliated companies, the largest insolvency in Austrian history, with debts of over EUR14 billion affecting not only Austria, but also large-scale projects in Germany and Switzerland. Technical Trends: VIAC Legal Tech Think Tank and Note on the Use of AI in Arbitration Proceedings The topic of AI has become increasingly prevalent. In 2024, the Vienna International Arbitral Centre (VIAC), one of the leading European arbitral institutions, launched its Legal Tech Think Tank (VIAC LTTT), which aims to identify technology-related disputes that are suitable for arbitration. It has also reviewed the Vienna Rules with a view to the needs of parties in technolo - gy-related disputes. Currently, the VIAC LTTT is ana - lysing the impact of AI on transparency and disclosure obligations in arbitration proceedings as well as the opportunities and risks arising from the use of AI in the collection and evaluation of evidence. In April 2025, the VIAC LTTT issued a Note on the Use of AI in Arbitration Proceedings. The Note intends to facilitate discussions related to the use of AI in the context of VIAC arbitration proceedings. The appli - cation of the Note should be tailored to the specific requirements of the case. The goal is to ensure that the use of any AI tool enhances efficiency or effectiveness of the arbitral proceedings while safeguarding their integrity. The Note does not define AI to allow inclu - sion of AI tools that are in development. Therefore, if arbitrators and parties agree on the applicability of the Note to their VIAC proceedings, they should define the AI tools that fall within the scope of the Note. The Note addresses six different aspects that are relevant in the context of AI and arbitration; in particular, ethical rules and professional standards, the non-delegation of the decision-making of the tribunal, confidentiality, the use of the AI tools and the management thereof, and the stage of evidence-taking.
The Austrian Supreme Court, in deciding on applica - tions to set aside awards, has maintained an arbi- tration-friendly approach in its judgments. In doing so, the Austrian Supreme Court also has a view to ensuring a reliable legal framework in which arbitration takes place and protects the trust of its users. Shareholder disputes In 2024, the Austrian Supreme Court dealt in detail with the objective arbitrability of disputes over share - holder resolutions in private limited partnerships. In that case, some (but not all) shareholders had relied on an arbitration clause between the partnership and the shareholders to file a challenge to a shareholder resolution before an arbitral tribunal. The request for arbitration (and consequently the arbitral award) was directed against the company but not against the oth - er shareholders. The company filed an application to set aside the arbitral award by which the shareholder resolution had been nullified. The application was based on the argument that the arbitration proceed - ings had not included the other shareholders. The Austrian Supreme Court ruled that, although private limited partnerships, like corporations, may include arbitration clauses in their articles of association, it is not possible to conduct the arbitration proceedings only between some shareholders and the company. The arbitration must rather ensure the inclusion of all shareholders. Failing a mechanism that includes all shareholders and ensures a legal effect on all share - holders, such shareholder disputes are objectively not arbitrable. Therefore, to ensure that such disputes are, in fact, objectively arbitrable, the participation and intervention rights of all shareholders must be set out ex ante in the arbitration agreement (cf. OGH 18 OCg 3/22y). As a consequence of this decision, VIAC has amended the Vienna Rules with effect from 1 Janu - ary 2025. The new Annex 7 to the Vienna Rules con - tains supplementary rules for corporate disputes. In addition, Annex 1 contains new wording for a model arbitration clause for articles of association with the intention of extending the binding effect of the arbitral award to shareholders or the company itself, even if they are not named as parties to the arbitration pro - ceedings.
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