AUSTRIA Law and Practice Contributed by: Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel, KNOETZL
7.2 Procedural Steps The parties are largely free to agree on the manner in which arbitration proceedings are to be conducted. In the absence of an agreement (which may also be a reference to institutional rules), Austrian arbitration law applies as a default rule, and it is otherwise at the dis - cretion of the arbitral tribunal to determine the proce - dure. Under the Vienna Rules, the arbitrators are free to conduct the proceedings at their discretion (without being required to apply the Austrian non-mandatory arbitration rules), subject to mandatory law and if the parties have not agreed otherwise. As a mandatory requirement, the arbitrators must always observe the parties’ right to fair treatment and each party’s right to be heard. 7.3 Powers and Duties of Arbitrators The arbitral tribunal has, inter alia, powers to decide on: • its own jurisdiction as well as the merits of the case; • the conduct of the proceedings, where there is no agreement of the parties on the procedure; and • the admissibility of evidence, and to determine its relevance, materiality and weight. The arbitral tribunal may also grant preliminary or interim relief. It has the duty to treat the parties fairly and must ensure that each party’s right to be heard is observed. Every arbitrator has the duty to remain independent and impartial throughout the arbitration and has an ongoing obligation to disclose any circum - stances that may call their independence or impartial - ity into question. 7.4 Legal Representatives There are no particular qualifications or other require - ments for legal representatives in arbitration pro - ceedings. Notably, there are no restrictions as to the nationality and/or qualification of counsel. In proceedings to set aside an arbitral award, there is an obligation to be represented by a lawyer who is admitted to the Bar in Austria.
while arbitration proceedings are pending. There are no provisions on emergency arbitrations. Although the parties may by agreement exclude the arbitral tribunal’s power to grant interim relief, the courts can always be called upon to grant interim relief upon the application of a party both before and after the constitution of the arbitral tribunal. Interim relief granted by a court can only be lifted by the courts and cannot be reversed by an arbitral tribunal. Only the courts have the power to enforce preliminary or interim relief awarded by an arbitral tribunal. Courts may refuse to enforce measures that would be incompatible with: • an Austrian court measure that was either request - ed or issued previously; or • a foreign court measure that was issued previously Austrian arbitration law does not contain a provision explicitly granting arbitral tribunals the power to order security for costs. However, this power is understood to be implied in the competence of an arbitral tribunal to award preliminary or interim relief and in the fact that Austrian courts may order security for costs if the enforcement of the cost decision is seriously impaired (ie, due to the lack of enforceability of a judgment abroad). The Vienna Rules contain a provision granting an arbi - tral tribunal the power to order security for costs. and must be recognised. 6.3 Security for Costs
7. Procedure 7.1 Governing Rules
Austrian arbitration law grants the parties extensive autonomy in determining the conduct of the arbitra - tion, with only a few mandatory legal provisions that cannot be waived by agreement of the parties. It also provides a framework of default rules that govern the arbitral procedure if the parties have not agreed on (institutional or other) rules to govern their arbitration proceedings.
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