AUSTRIA Law and Practice Contributed by: Bettina Knoetzl, Patrizia Netal, Katrin Hanschitz and Natascha Tunkel, KNOETZL
ground to refuse the enforcement of domestic arbitral awards. The restrictive approach regarding the public policy objection is reflected in the case law of the Austrian Supreme Court (see standing case law RS0110743 and, for example, OGH 18 OCg 1/19z), which has held that: • public policy concerns only the fundamental principles of Austrian law and may not lead to a factual or legal review of the award (ie, no révision au fond ); • it is not decisive whether the foreign law contra - dicts the fundamental values of the Austrian legal system, but merely whether its concrete applica - tion by the arbitral tribunal leads to a result that is incompatible with the fundamental values of the Austrian legal system; and • the fundamental values of Austrian law include, inter alia, EU regulations as well as national con - stitutional principles, such as the protection of personal freedom, equal rights, the prohibition of discrimination, and the prohibition of exploitation of the economically weaker party. Moreover, it has been held that Austrian public policy cannot be infringed if a foreign arbitral award has no close relationship with Austria. If, for example, parties to the arbitration proceedings were not Austrian and the only relationship to Austria consists of the location of an asset owned by one of the parties, the foreign arbitral award cannot infringe the Austrian ordre public because there is no close relationship to Austria (see OGH 4 Ob 199/00v and OGH 2 Ob 170/18s). Where the European Convention is applicable, the successful setting-aside of an arbitral award in the country of origin owing to a violation of public policy is not a ground for the refusal of enforcement in Aus - tria. The arbitral award must be incompatible with the Austrian ordre public in order to refuse enforcement in Austria (OGH 3 Ob 115/95). Special Constellations: Awards by Consent/Default Awards Arbitral awards by consent are enforceable. Note that Austrian law also provides for a mere record of a set -
tlement between the parties by an arbitral tribunal ( Schiedsvergleich ) (Section 605 of the CCP), which is not an arbitral award. Such a record of settlement constitutes an enforceable title under Austrian law but may not be enforceable internationally. As the agreement of the parties is a prerequisite for rendering an arbitral award on agreed terms (or con - sent award), most of the grounds to refuse enforce - ment will not be applicable. However, consent awards may still be reviewed for violation of public policy (see above). Under Austrian law, if the respondent fails to partici - pate in the proceedings (Section 600 of the CCP), the arbitral tribunal may not draw negative inferences from the fact of default – in particular, it may not automati - cally assume that the contentions of the non-default - ing party are true. The claimant must still prove its case and the arbitral tribunal must respect the right to be heard, also towards the defaulting party. The enforcement of an award that was rendered without the participation of the respondent therefore depends on the condition that the defaulting party was properly informed of the arbitration and provided with sufficient opportunity to participate in the proceedings (see OGH 18 OCg 9/19a). It will also require proof that the request for arbitration was properly served on the respondent. Issues of Limitation Austrian law does not contain any specific procedural rules that impose time limitations within which an arbi - tral award shall be enforced. It does, however, provide for a statute of limitations of 30 years to enforce a final court decision ( Judikatschuld ) in its civil law (see Sec - tion 1479 of the Civil Code) ( Allgemeines Bürgerliches Gesetzbuch ). The Austrian Supreme Court has held (OGH 3 Ob 172/00s) that the statute of limitations relating to a judgment or arbitral award is to be determined according to the law governing the obligation that was decided upon.
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