AUSTRIA Law and Practice Contributed by: Bettina Knoetzl, Patrizia Netal, Katrin Hanschitz and Natascha Tunkel, KNOETZL
held that Article VI of the New York Convention is only applicable regarding proceedings relating to the dec - laration of recognition and enforceability, while the EA applies during enforcement proceedings (OGH 3 Ob 248/11h). If an arbitral award is successfully set aside, the award debtor can apply to the court of first instance to lift (or amend) its decision with regard to the originally granted recognition and enforceability (see Section 414 of the EA). The Austrian Supreme Court has held that a foreign arbitral award is not to be recognised and enforced in Austria if the underlying arbitration agreement sets forth that the arbitral award may be appealed before another “second instance” arbitral tribunal (OGH 3 Ob 39/13a). In such cases, the arbitral award lacks bind - ing force until the period provided for such an appeal has expired unused, or until the review proceedings initiated by one of the parties have been terminated Arbitral awards granting declaratory relief can, owing to their nature, only be recognised and relied upon. Under Austrian law, such awards will be observed but cannot be the subject of enforcement proceedings. In principle, Austrian law allows specific performance as a relief, and will recognise and enforce arbitral awards granting such relief. However, in such cases, the specific performance must be clearly described and constitute an adequate remedy that can effec - tively be enforced under the law. Public Policy Objection Public policy grounds are to be observed by the courts ex officio. The obligation to observe public policy is derived from Article V, paragraph 2 lit b of the New York Convention as a ground to refuse the declaration of recognition and enforceability of foreign arbitral awards and from Section 613 in combination with Section 611, paragraph 2, No 8 of the CCP as a ground to refuse the enforcement of domestic arbitral awards. and the arbitral award confirmed. Relevance of Relief Requested
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 EU regulations as well as national constitutional prin - ciples, 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
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