HUNGARY Law and Practice Contributed by: Tamás Éless, Sarolta Édua Szabó, Ulrike Rein and Zsolt Farkas, Oppenheim Law Firm
According to Section 8 (3)-(5), an arbitration agree - ment is deemed to be in writing if: • it is entered into by electronic communication (in particular by electronic data interchange, email, telegram, telex or fax), provided that the data con - tained in the electronic communication is acces - sible to the other party and is suitable for later reference; • a party claims the existence of the arbitration agreement in its statement to the arbitral tribunal or in the submission of its claim and the other party does not contest it; or • it is a reference in a written contract to a document containing an arbitration clause, provided that the clause contained therein forms part of the contract. 3.2 Arbitrability The scope of disputes that can be arbitrated under the Hungarian Arbitration Act is broad. The few exceptions from arbitrability are listed in Sec - tion 1 (3)–(4) of the Hungarian Arbitration Act, includ - ing: • disputes arising out of a consumer contract (except for disputes relating to fiduciary asset man - agement contracts); • proceedings regulated in Chapter 7 of Act CXXX of 2016 on Civil Procedure (such as family law, public and private guardianship issues, as well as labour and enforcement disputes); and • disputes falling within the scope of Act I of 2017 on In general, Hungarian state courts are arbitration- friendly and enforce arbitration agreements, except in cases where the invalidity or unenforceability of the arbitration agreement can be established prima facie. Neither the Hungarian Arbitration Act nor Hungarian international private law provides specific rules on the law governing arbitration agreements. If the parties do not expressly agree on the law applicable to an arbitration agreement, the Hungarian courts will most often consider the law applicable to the main contract to be applicable to the arbitration agreement as well. Administrative Court Procedure. 3.3 National Courts’ Approach
If the law applicable to the main contract is not based on the agreement of the parties but on other rules of international private law, Hungarian courts may apply the law of the seat of arbitration to the arbitration agreement. 3.4 Validity Hungarian law applies the rule of separability, which means that an arbitration agreement shall be treated as an independent agreement, even if it forms part of the main contract. Consequently, a decision of the arbitral tribunal on the non-existence, invalidity or unenforceability of the main contract shall not neces - sarily affect the existence and validity of the arbitra - tion agreement and the competence of the arbitral tribunal. Section 17 (1) of the Hungarian Arbitration Act adopts the same concept as Article 16 (1) of the 2006 version of the Model Law. 4. The Arbitral Tribunal 4.1 Limits on Selection Under Hungarian law, the parties have broad auton - omy to: • select the arbitrators; • determine the number of arbitrators (provided that they choose an odd number); and • determine the procedure for the selection of arbi - trators. In accordance with Section 12 (7) of the Hungarian Arbitration Act, the following persons cannot be nomi - nated as arbitrators: • persons under the age of 24; • persons barred from public affairs by a final and binding judgment; • persons who have been sentenced to imprison - ment by a final and binding decision, until the con - viction has been erased from their criminal record; • persons who have been placed under guardianship or whose legal capacity is restricted; • persons barred from any profession requiring a diploma in law;
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