AUSTRIA Law and Practice Contributed by: Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel, KNOETZL
If an action is brought before a court while arbitral pro - ceedings are already pending, the court must dismiss the action, unless a party has already challenged the jurisdiction of the arbitral tribunal in the arbitration pro - ceedings and – exceptionally – if the arbitral tribunal is not expected to reach a decision within a reason - able period of time. The initiation of court proceedings does not prevent an arbitration from being initiated or continued, nor an award from being rendered. Ultimately, the issue of whether (or not) an arbitral tri - bunal has jurisdiction may also be raised as a ground for setting aside an arbitral award, including an award on jurisdiction. 5.3 Timing of Challenge The plea that the arbitral tribunal does not have juris - diction must be raised no later than the first pleading on the substance of the dispute (see, for example, OGH 18 OCg 1/26k). A party is not precluded from raising such plea by the fact that it has appointed an arbitrator. The plea that the arbitral tribunal is exceed - ing the scope of its jurisdiction must be raised as soon as the claim beyond the arbitral tribunal’s jurisdiction is made. A belated objection to the tribunal’s jurisdic - tion may be considered by the arbitral tribunal if it In setting-aside proceedings, the Austrian Supreme Court may assess questions of jurisdiction without being bound to the findings of the arbitral tribunal (OGH 18 OCg 3/25b). In practice, there is a discern - ible bias in favour of upholding arbitral jurisdiction in review proceedings. 5.5 Breach of Arbitration Agreement As mentioned in 5.2 Circumstances for Court Inter- vention , the approach of Austrian courts towards a party that commences court proceedings in breach of an arbitration agreement will be to dismiss the action, unless the other party pleads on the merits of the dispute without raising a jurisdictional objection or if – after an objection has been raised – the court finds that the arbitration agreement does not exist or is incapable of being performed. The courts are gener - considers the delay sufficiently excused. 5.4 Standard of Judicial Review for Jurisdiction/Admissibility
ally arbitration-friendly and will observe an arbitration agreement. 5.6 Jurisdiction Over Third Parties Austrian law does not contain provisions allowing an arbitral tribunal to assume jurisdiction over individu - als or entities that are neither party to an arbitration agreement nor signatories to the contract containing the arbitration agreement. However, case law has established that both single and universal legal suc - cessors, assignees of a claim or contract, and third- party beneficiaries of contracts are bound by an arbi - tration agreement even if they are not signatories to the contract (see, for example, OGH 4 Ob 43/21h and OGH 4 Ob 36/21d). Unless otherwise agreed by the parties, arbitral tri - bunals may award preliminary or interim relief. The arbitral tribunal may only award such relief after the other party has had an opportunity to be heard. A further requirement is that the enforcement of a claim would otherwise be frustrated or that a party may suf - fer irreparable harm. The relief granted is binding and enforceable in Austria if it is ordered in writing, signed and served on the parties. Enforcement of interim relief will only be refused if the order suffers from a defect that would allow it to be set aside (if the seat of the arbitration is in Austria) or to be refused recog - nition or enforcement (if the seat of the arbitration is outside Austria). 6. Preliminary and Interim Relief 6.1 Types of Relief If an arbitral tribunal grants preliminary or interim relief that contains a remedy unknown to Austrian law, Aus - trian arbitration law provides that the enforcing court will look at the purpose to be achieved by the rem - edy and – by means of interpretation, reformulation or even modification of the remedy granted by the arbitral tribunal – grant an equivalent remedy available under Austrian law. 6.2 Role of Courts Under Austrian arbitration law, parties may turn to the courts or the arbitral tribunal to grant interim relief
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