LIECHTENSTEIN Law and Practice Contributed by: Moritz Blasy, Nicolai Binkert, Simon Ott and Kathrin Binder, Schurti Partners Attorneys at Law Ltd
Law provides for. Another example of divergence is that the Liechtenstein Arbitration Law does not con - tain specific conflict-of-laws rules, leaving the choice of law to the arbitral tribunal if no choice has been made by the parties. 2.2 Changes to National Law The most recent change to the Liechtenstein Arbitra - tion Law, by which the restriction on consumers par - ticipating in arbitration proceedings has been eased, came into effect on 1 August 2017. The change had a major impact on arbitration in corporate, foundation and trust matters, since it is now explicitly stipulated that arbitration clauses included in articles of associa - tion, trust deeds or foundation statutes are binding irrespective of whether one of the litigants qualifies as a consumer. The arbitration agreement must either be in a writ - ten document signed by the parties or established by the parties exchanging letters, faxes, emails, or other means of communication which prove the existence of the agreement. Further requirements must be met if a natural person is a party to the arbitration agreement. In particular, an arbitration agreement between an entrepreneur and a natural person may only be effectively concluded with regard to an already arisen dispute. However, this requirement does not apply if (i) the natural per - son is an entrepreneur as well, or (ii) the arbitration agreement is contained in a separate document that deals exclusively with the arbitral proceedings and the natural person has received legal advice or has been represented by an attorney with regard to the conclu - sion of the arbitration agreement. 3.2 Arbitrability In principle, any claim concerning an economic inter - est that would fall within the jurisdiction of the ordinary courts may be subject to an arbitration agreement. Hence, the scope of a claim involving an economic interest must be interpreted extensively. 3. The Arbitration Agreement 3.1 Enforceability
As a matter of Liechtenstein law in case of non- pecuniary claims, an arbitration agreement may be concluded and shall have legal effect to the extent that the parties are entitled to conclude a settlement on the subject matter in dispute. However, family law disputes and certain employment law disputes (namely, claims under apprenticeship agreements – the Vocational Education Act) cannot be made sub - ject to arbitral proceedings. Further, the jurisdiction of the ordinary courts cannot be excluded with regard to proceedings which are initiated either by the court ex officio or due to an application or report of a public authority. 3.3 National Courts’ Approach Because an arbitration agreement is a procedural con - tract, its interpretation is subject to the provisions of the procedural law of the court in which the proceed - ing is brought. If an action is filed in a matter which is subject to an arbitration agreement, the ordinary courts will reject the respective claim unless the counterparty enters an appearance on the merits without objecting to the jurisdiction of the ordinary courts. If a claim is brought in a matter in which arbitration proceedings are already pending, the claim shall be rejected, unless the jurisdiction or the arbitral tribunal has been challenged and if it is not to be expected that the tribunal will render a decision within an appropri - ate period of time. 3.4 Validity While the Liechtenstein Arbitration Law is based on the UNCITRAL Model Law, the provision regarding separability has not been implemented in Liechten - stein. However, given that the Liechtenstein Arbitra - tion Law is also based on the Austrian Arbitration Law, Austrian case law and legal doctrine can be taken into account to answer this question. The doctrine of sep - arability is recognised by Austrian courts.
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