AUSTRIA Trends and Developments Contributed by: Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel, KNOETZL
of the arbitral proceedings while safeguarding their integrity. The Note does not define AI to allow inclu - sion of AI tools that are in development. Therefore, if arbitrators and parties agree on the applicability of the Note to their VIAC proceedings, they should define the AI tools that fall within the scope of the Note. The Note addresses six different aspects that are relevant in the context of AI and arbitration. In particular, ethical rules and professional standards, the non-delegation of the decision-making of the tribunal, confidentiality, the use of the AI tools and the management thereof, and the stage of evidence taking. Case Law: Pragmatic and Pro-Arbitration Jurisprudence of the Austrian Courts The Austrian Supreme Court, in deciding on applica - tions to set aside awards, has maintained an arbi- tration-friendly approach in its judgments. In doing so, the Austrian Supreme Court also has a view to ensuring a reliable legal framework in which arbitration takes place and protects the trust of its users. • Shareholder disputes : In 2024, the Austrian Supreme Court dealt in detail with the objective arbitrability of disputes over shareholder resolu - tions in private limited partnerships. In that case, some (but not all) shareholders had relied on an arbitration clause between the partnership and the shareholders to file a challenge to a shareholder resolution before an arbitral tribunal. The request for arbitration (and consequently the arbitral award) was directed against the company but not against the other shareholders. The company filed an application to set aside the arbitral award by which the shareholder resolution had been nullified. The application was based on the argument that the arbitration proceedings had not included the other shareholders. The Austrian Supreme Court ruled that, although private limited partnerships, like cor - porations, may include arbitration clauses in their articles of association, it is not possible to conduct the arbitration proceedings only between some shareholders and the company; rather, the arbitra - tion must ensure the inclusion of all shareholders. Failing a mechanism that includes all shareholders and ensures legal effect on all shareholders, such shareholder disputes are objectively not arbitra - ble. Therefore, to ensure that such disputes are,
in fact, objectively arbitrable, the participation and intervention rights of all shareholders must be set out ex ante in the arbitration agreement (OGH 18 OCg 3/22y). As a consequence of this decision, VIAC has amended the Vienna Rules with effect as of 1 January 2025. The new Annex 7 to the Vienna Rules contains supplementary rules for corporate disputes. In addition, Annex 1 contains a new wording for a model arbitration clause for articles of association with the intention of extending the binding effect of the arbitral award to shareholders or the company itself, even if they are not named as parties to the arbitration proceedings. • Impartiality : When deciding on challenges to arbi - trators, the Austrian Supreme Court will frequently also consider the IBA Guidelines on Conflicts of Interest in International Arbitration, which were updated in 2024. The Austrian Supreme Court has already stated several times that a subsequently discovered reason for rejection can, in “blatant cases”, also be asserted by means of an action for annulment. However, asserting the ground for chal - lenge in the action for annulment requires that the challenge of the arbitrator was no longer possible before the arbitral award was made. In its deci - sion 18 OCg 3/24a of 2025, the Austrian Supreme Court granted a set-aside application based on the lack of impartiality of the arbitrator. The underlying case gives rise to the appearance of bias because the arbitrator acted for the claimant’s opposing party not only in the past, but throughout the entire arbitration proceedings. His duties were not limited to legal advice, but he participated in a hearing lasting several weeks. There, he was listed as “counsel” for the opposing party. The appearance of bias arises from the arbitrator’s dual role: in the ICC arbitration, he was supposed to challenge the claimant’s legal position, but in the VIAC arbitra - tion, he was supposed to objectively assess the claimant’s legal position. The arbitrator merely dis - closed to the claimant that he had previously acted as an adviser to the claimant’s opponent. The writ - ten statement was drafted in the past tense in the decisive/essential points. Based on these circum - stances, the claimant had no reason to believe that the arbitrator would continue this advisory activity for its opponent during his activity as an arbitra - tor and would even participate in hearings and
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