AUSTRIA Trends and Developments Contributed by: Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel, KNOETZL
appear against the claimant there. In granting the setting aside of the award in this case, the Austrian Supreme Court continued its arbitration-friendly approach by protecting the process in cases where the conduct of the arbitrator grossly violated the integrity of arbitration proceedings. In fact, the Austrian Supreme Court specifically emphasised that the reputation of arbitration must be equal to that of state courts, because the acceptance of arbitration requires not only professional com - petence, but also the trust of those seeking legal redress in independent, impartial arbitrators who act free from conflicts of interest. • Declaration of the existence or non - existence of an arbitral award : In 2024, the Austrian Supreme Court rendered two decisions (OGH 10 Ob 11/24a and OGH 4 Ob 46/24d) that relate to Section 612 of the Austrian Civil Procedure Code, which provides declaratory relief to clarify whether a document is to be considered an award. Applications under this provision are exceedingly rare. For example, such applications are made when it is necessary to clarify whether the “award” is, in fact, an expert determination. The relief offered by Section 612 of the Austrian Civil Procedure Code is also available if the seat of the arbitration is not in Austria. How - ever, a legal interest in the declaratory judgment is required; a mere economic interest is insufficient. This relief is not subject to a time limit. In its recent decisions, the Austrian Supreme Court clarified, inter alia, that it alone is the competent court for such applications and that the application can only relate to the determination of the existence or non-existence of an arbitral award, whereas the determination of the existence or non-existence of an arbitration agreement is not permitted.
• Constitutionality of arbitration : It is rare that the Austrian Constitutional Court deals with matters related to arbitration. It recently (VfGH G 49/2024- 7) had the opportunity when an action was filed requesting to declare as unconstitutional and void Section 607 of the Austrian Civil Procedure Code, which grants an arbitral award the same effect as a court judgment. The Austrian Constitutional Court declined to accept the action and specifically held that there are no constitutional objections to the fundamental admissibility of private arbitra - tion established on a private autonomous basis (in conjunction with the relevant statutory provisions). Firstly, the relevant provisions provide (sufficient) possibilities for the parties to bring an action to set aside the award; secondly, the grounds to set aside awards also provide sufficient guarantees that an award that contradicts the fundamental values of the Austrian legal system ( ordre public ) can be challenged; and thirdly, the courts and administra - tive authorities may ex officio not take an award that contradicts the fundamental values of the Austrian legal system into account. In view of the legal framework and the safeguards it provides, the application has no reasonable prospect of success. Final Note Austria continues to be a stable, modern and welcom - ing place for arbitral proceedings. Staying on top of developments and even leading the latest trends, Aus - tria has maintained its position as an attractive place for commercial and investment arbitration.
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