AUSTRIA Law and Practice Contributed by: Bettina Knoetzl, Katrin Hanschitz, Kirstin McGoldrick and Natascha Tunkel, KNOETZL
situations in which mediation is compulsory. These cases mainly relate to: • disputes between neighbours. • tenancy disputes; and • disputes between members of certain professional groups subject to a code of conduct (eg, architects or lawyers). Judges increasingly encourage parties to consider ADR, generally in the form of mediation. Some Aus- trian courts have engaged in a pilot project in which, at the beginning of the court proceedings, parties are informed about the option to engage in mediation. If one or both parties refuse to engage in mediation or fail to co-operate in mediation proceedings, no adverse consequences attach. 12.3 ADR Institutions Several organisations offer and promote ADR in Aus- tria, including the Austrian Bar Association. For com- mercial cases, the Vienna International Arbitral Centre of the Federal Economic Chamber (VIAC) is the lead- ing institution. VIAC offers ADR rules that provide a flexible proce- dural framework that caters to the need of commercial clients. To promote understanding and use of ADR, VIAC published a handbook, which gives guidance on ADR proceedings under the auspices of VIAC. In addition, VIAC does not charge administration fees more than once should the parties wish to switch from arbitration to mediation (or vice versa), thereby pro- viding an incentive to consider hybrid forms of ADR.
Model Law, with a few minor deviations. Significantly, Austrian arbitration law does not differentiate between domestic and international arbitration. 13.2 Subject Matters Not Referred to Arbitration Under Austrian arbitration law, the definition of arbi- trability is broad. The general rule is that pecuniary claims are usually considered arbitrable. Non-pecu- niary claims are considered arbitrable if the parties have the capacity to enter into a settlement agreement addressing the specific claim. As a specific exception, family law matters, and all claims based on contracts that are – even partially – subject to the Tenancy Act ( Mietrechtsgesetz ) or to the Non-Profit Housing Act ( Wohnungsgemeinnützig- keitsgesetz ), as well as all claims concerning condo- minium property, are precluded from being subject to an arbitration agreement. Moreover, certain collective labour and social security matters are not arbitrable. Although they are generally arbitrable, disputes involv- ing consumers or employees may only be made sub- ject to an arbitration agreement (with additional formal requirements) after the dispute has arisen. The addi- tional formal requirements are extensive and lead to a very high threshold to validly conclude an arbitration agreement with consumers or employees, rendering arbitration agreements in these areas impracticable. 13.3 Circumstances to Challenge an Arbitral Award Within three months of receiving an arbitral award, a party is entitled to file an action to set the award aside based on one or more of the following grounds. • A valid arbitration agreement does not exist, the arbitral tribunal has denied its jurisdiction despite the existence of a valid arbitration agreement, or a party was incapable of concluding a valid arbitra- tion agreement under the law governing its per- sonal status. • A party was not given proper notice of the appoint- ment of an arbitrator or of the arbitral proceedings or was for other reasons unable to present its case.
13. Arbitration 13.1 Laws Regarding the Conduct of Arbitration
If the seat of the arbitration is in Austria, the arbitration proceedings will be governed by the Austrian arbitra- tion law, which is contained in the Fourth Chapter of the Austrian Code of Civil Procedure (Sections 577- 618). Since 2006, the legislation governing arbitration in Austria has been strongly based on the UNCITRAL
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