AUSTRIA Law and Practice Contributed by: Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel, KNOETZL
– as well as any limits thereto or prescription periods – must be determined by reference to the law applicable to the merits. The remedy of punitive damages is not known under Austrian law. In principle, the concept of punitive dam - ages is considered contrary to Austrian public policy. 10.3 Recovering Interest and Legal Costs Austrian arbitration law does not contain any express provisions on whether the parties are entitled to recov - er interest. In most cases, this will depend on the law applicable to the merits. Unless the parties have agreed otherwise, they are entitled to recover legal costs (encompassing the rea - sonable costs of legal representation, the fees of the arbitrators, and – where applicable – the administra - tive costs charged by the institution). Both Austrian law and the Vienna Rules provide that the arbitral tri - bunal must render a decision on costs upon termina - tion of the proceedings, including in cases where the arbitral tribunal ultimately finds it has no jurisdiction. The general practice with regard to allocating costs between the parties takes into account all circum - stances of the case, with a particular focus on the outcome of the proceedings. The Austrian Supreme Court has held (in OGH 18 OCg 5/21s) that it is not a violation of the right to be heard if a party is not grant - ed the opportunity to comment on the other party’s cost submission. Under the Vienna Rules, the arbitral tribunal may – at any stage of the arbitral proceedings and at the request of a party – make a decision on legal costs (ie, excluding the administrative and arbitrator’s fees) and order payment. This is primarily intended to apply in cases with separate phases (eg, in the case of bifurca - tion between jurisdiction and merits).
• a valid arbitration agreement does not exist, or the arbitral tribunal has denied its jurisdiction despite the existence of a valid arbitration agreement, or a party lacked the capacity to conclude a valid arbitration agreement under the law governing its personal status; • a party was not given proper notice of the appoint - ment of an arbitrator or of the arbitral proceedings, or was unable to present its case for other reasons; • the award deals with a dispute not covered by the arbitration agreement, or contains decisions on matters beyond the scope of the arbitration agree - ment or the pleas of the parties – if the default concerns only a part of the award that can be separated, only that part of the award shall be set aside; • the composition or constitution of the arbitral tribu - nal was not in accordance with a provision of the arbitration law or with a permissible agreement of the parties; • the arbitral proceedings were conducted in a man - ner that conflicts with the fundamental values of the Austrian legal system ( ordre public ); • the requirements according to which a court judg - ment can be appealed by an action for revision under Section 530, paragraph 1, numbers 1–5 of the CCP have been met (note that these grounds for revision relate to the scenario in which the deci - sion was based on a fraudulent action or a forged document – or a criminal verdict that has since been reversed – and that the three-month time period to file the action for setting aside does not apply in this circumstance); • the subject matter of the dispute is not arbitrable under Austrian law; or • the arbitral award conflicts with the fundamental values of the Austrian legal system ( ordre public ). There are additional grounds to set aside an arbitral award rendered in arbitral proceedings in which either a consumer or an employee was involved. The action to set aside an award is to be filed with the Austrian Supreme Court, which will decide as first and last instance – ie, without the possibility of a fur - ther appeal. Practice has shown that a well-reasoned decision will usually be rendered within six to eight months.
11. Review of an Award 11.1 Grounds for Appeal
Within three months of the notification of the arbitral award, a party is entitled to initiate a setting-aside action based on one or more of the following grounds:
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