AUSTRIA Law and Practice Contributed by: Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel, KNOETZL
4.5 Arbitrator Requirements Arbitrators are required to be independent and impar - tial. Prior to accepting an appointment, the prospec - tive arbitrator must disclose any circumstances that are likely to give rise to doubts concerning their impar - tiality or independence. The obligation to disclose such circumstances is ongoing throughout the arbitral proceedings. According to decisions of the Austrian Supreme Court, the test is whether the circumstances of the case objectively lead to justifiable doubts regarding the arbitrator’s independence and impartiality (see most recently, for example, OGH 18 OCg 3/24a). Austrian arbitration law recognises the principle of “competence-competence”. The arbitral tribunal may rule on a party’s challenge to its own jurisdiction. Lack of jurisdiction of the arbitral tribunal may also be raised as a ground to set aside an arbitral award, including a partial award on jurisdiction. If the place of arbitration is Austria and such proceedings are initi - ated, the question of jurisdiction will be reviewed and ultimately decided by the Austrian Supreme Court (see, for example, OGH 18 OCg 4/24y and recently OGH 18 OCg 3/25b). 5.2 Circumstances for Court Intervention Under Austrian law, the courts may only address mat - ters concerning arbitration in limited cases and upon the request of a party. The rules on jurisdiction generally favour arbitration over court proceedings. Therefore, if a court action involving a matter that is subject to an arbitration agreement is initiated, the court must dismiss the claim – unless either: • the other party enters into the merits of the dispute without raising a jurisdictional objection; or • after an objection has been raised, the court finds that the arbitration agreement does not exist or is incapable of being performed. 5. Jurisdiction 5.1 Challenges to Jurisdiction
parties’ agreement if such agreement exists (see, for example, OGH 18 ONc 3/24x). The Austrian Supreme Court may ultimately also be called upon to decide on the application to remove an arbitrator (eg, due to the arbitrator’s lack of independence or impartiality). 4.4 Challenge and Removal of Arbitrators Austrian law provides for a default procedure if the parties have failed to agree on a challenge procedure (eg, by reference to institutional rules). The challenging party must submit a written statement of the reasons for the challenge to the arbitral tribunal, which gives the challenged arbitrator the opportunity to resign from office, or the other party may agree that the chal - lenged arbitrator will be removed. If the challenged arbitrator does not resign or is not removed upon mutual agreement of the parties, the arbitral tribunal (including the challenged arbitrator) must decide on the challenge. If the challenge is unsuccessful before the arbitral tribunal, the challenging party may within four weeks apply to the Austrian Supreme Court as the court of first and last instance to decide on the challenge. If a challenge pursuant to an agreed challenge pro - cedure (eg, contained in institutional rules) is not suc - cessful, the challenging party may then apply to the Austrian Supreme Court for a review of the challenge decision within four weeks of receiving the decision. The option to appeal to the Austrian Supreme Court in these cases is mandatory and may not be waived. The legal standard for the challenge of an arbitrator is: • justifiable doubts concerning their impartiality or independence; or • the failure of an arbitrator to meet specific require - ments set out in the parties’ agreement. The Austrian Supreme Court routinely applies the International Bar Association Guidelines on Conflicts of Interest in International Arbitration as non-binding guidelines (see, for example, OGH 18 ONc 1/19w and recently OGH 18 OCg 3/24a). The mere fact that an arbitrator has not disclosed circumstances that may give rise to doubts concerning their impartiality or independence alone is not per se a ground for a chal - lenge (see, for example, OGH 18 ONc 1/14p).
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