AUSTRIA Law and Practice Contributed by: Bettina Knoetzl, Katrin Hanschitz, Dr Kirstin McGoldrick and Natascha Tunkel, KNOETZL HAUGENEDER NETAL GmbH
12. Alternative Dispute Resolution (ADR) 12.1 Views of ADR Within the Country ADR and, particularly, mediation, is viewed positively in Austria. Yet mediation is still rarely used to settle commercial disputes. Parties to complex commercial and corporate disputes prefer to sue in court or to initiate arbitration proceedings, thereby delegating the resolution of the dispute to judges or arbitrators. However, nowadays a good number of judges are aware of and appreciate the power of mediation and actively refer parties to mediation. The Law on Mediation Regarding Civil Claims ( Zivilrechts-Mediations-Gesetz ), enacted in 2004, aims to promote and facilitate access to mediation by setting out basic parameters for mediation. It establishes required qualifications of certified mediators, provides that mediation conducted by a certified mediator prevents the limitation period from expiring, and sets out that certified mediators shall not be required to testify in court proceedings. In many areas, the Aus- trian Law on Mediation Regarding Civil Claims pre-empted most of the provisions foreseen by the (EC) Directive 2008/52 of 21 May 2008 regarding certain aspects of mediation in civil and commercial matters. 12.2 ADR Within the Legal System The prevailing opinion is that parties should engage in ADR proceedings voluntarily. There are only a few situations in which mediation is compulsory. These cases mainly relate to: • disputes between neighbours; • tenancy disputes; and • disputes between members of certain profes- sional groups subject to a code of conduct (eg, architects or lawyers).
Judges increasingly encourage parties to con- sider ADR, generally in the form of mediation. Some Austrian 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. In the event that one or both parties refuse to engage in media- tion or fail to co-operate in mediation proceed- ings, no adverse consequences arise. 12.3 ADR Institutions Several organisations offer and promote ADR in Austria, including the Austrian Bar Association. For commercial cases, the Vienna International Arbitral Centre of the Federal Economic Cham- ber (VIAC) is the leading institution. VIAC offers ADR rules that provide a flexible procedural framework that caters to the need of commercial clients. To promote understand- ing and use of ADR, VIAC published a hand- book, which gives guidance on ADR proceed- ings 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 providing an incentive to consider hybrid forms of ADR. 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 arbitration 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 UNCI-
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