AUSTRIA Law and Practice Contributed by: Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel, KNOETZL
At the same time, the Austrian Supreme Court has recognised the separate legal nature of an arbitration agreement and has emphasised that it is appropri - ate to determine the law applicable to an arbitration agreement on a case-by-case basis (see, for example, OGH 3 Ob 153/18y). In the absence of a choice of law, the law of the seat of the arbitration governs the arbitration agreement (see, for example, OGH 18 OCg 1/15v and OGH 18 OCg 6/18h). Austrian legislation and the courts are arbitration- friendly in terms of enforcing arbitration agreements. In practice, courts apply the principle of “in favorem validitatis” – ie, when in doubt, the courts will inter - pret the intended scope of an agreement to favour arbitration (see, for example, OGH 18 OCg 6/20m and recently OGH 4 Ob 55/25d and OGH 6 Ob 225/24t). 3.4 Validity Although legislation governing arbitration in Austria is based on the UNCITRAL Model Law, the specif - ic wording of Article 16 (1) of the UNCITRAL Model Law concerning separability was not adopted. How - ever, the doctrine of separability is recognised by the courts, which evaluate the question of the validity of an arbitration clause contained in an invalid contract on a case-by-case basis by interpreting the intention of the parties (see, for example, OGH 18 OCg 1/15v and OGH 18 OCg 6/18h). In practice, this will usu - ally lead to the determination that the parties’ intent was that the arbitration agreement remains valid if the contract is null and void or terminated. Where the main contract is terminated by consent, the courts have held that the arbitration clause contained in the contract may also be considered terminated if the par - ties’ intention was to terminate the entire contractual relationship.
63 (5) of the Austrian Act on the Service of Judges and Public Prosecutors. 4.2 Default Procedures Austrian law provides for a default procedure if the parties have failed to designate a method for select - ing arbitrators or if the chosen selection procedure fails. However, in most cases, the parties will have chosen a set of institutional arbitration rules that deal with this issue. As a default, Austrian law provides that there shall be three arbitrators. In principle, each party shall nomi - nate the same number of arbitrators. However, Aus - trian law does allow for the joint appointment of one arbitrator by several parties – for example, in the case of multiparty arbitrations. If the parties have not determined a procedure for the appointment of the arbitrators, the default rule is: • a sole arbitrator will be jointly appointed by agree - ment of the parties; and • a panel of arbitrators will be appointed by each party appointing one arbitrator and then these two party-appointed arbitrators will appoint the presi - dent of the arbitral tribunal. If a party fails to appoint an arbitrator or if no agree - ment can be found regarding the appointment of a sole arbitrator or the president of the arbitral tribunal or in multiparty arbitrations, a party may apply to the Austrian Supreme Court to make the default appoint - ment. 4.3 Court Intervention Courts are only involved in the appointment of arbitra - tors upon the application of (one of) the parties to sup - port the arbitral process. If there is no default proce - dure agreed upon by the parties, a party can request the Austrian Supreme Court to appoint an arbitrator if the other party fails to do so, or if no agreement can be reached regarding the appointment of an arbitra - tor, or in multiparty arbitrations, or if a third party (eg, an appointing authority) fails to appoint an arbitrator within a period of three months of receiving a written request from a party. The Austrian Supreme Court will give due regard to the requirements provided for in the
4. The Arbitral Tribunal 4.1 Limits on Selection
The parties are free to agree on a procedure to select the arbitrators. The only limitations under Austrian arbitration law are that an arbitral tribunal must not consist of an even number of arbitrators and that sitting Austrian judges are prohibited by law from accepting arbitrator mandates pursuant to Section
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