Interpretation and correction of awards
Does the arbitral tribunal have the power to correct or interpret an award on its own or at the parties’ initiative? What time limits apply?
The parties can apply to the arbitral tribunal requesting a correction (of calculation, typing or clerical errors), clarification or to make an additional award (if the arbitral tribunal has not dealt with all claims presented to it in the arbitral proceedings). The time limit for this application is four weeks from service of the award, unless otherwise agreed by the parties. The arbitral tribunal is also entitled to correct the award on its own within four weeks (an additional award within eight weeks) of the date the award has been rendered.
Challenge of awards
How and on what grounds can awards be challenged and set aside?
Courts are not entitled to review an arbitral award on its merits. There is no appeal against an arbitral award. However, it is possible to bring a legal action to set aside an arbitral award (both awards on jurisdictions and awards on merits) on very specific, narrow grounds, namely:
- the arbitral tribunal accepted or denied jurisdiction although no arbitration agreement or a valid arbitration agreement exists;
- a party was incapable of concluding an arbitration agreement under the law applicable to that party;
- a party was unable to present its case (eg, it was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings);
- the award concerns matters not contemplated by, or not falling within the terms of the arbitration agreement, or concerns matters beyond the relief sought in the arbitration – if such defects concern a separable part of the award, such part must be set aside;
- the composition of the arbitral tribunal was not in accordance with articles 577 to 618 of the Austrian Code of Civil Procedure (CCP) or the parties’ agreement;
- the arbitral procedure did not, or the award does not, comply with the fundamental principles of the Austrian legal system (public policy); and
- if the requirements to reopen a case of a domestic court in accordance with article 530(1), Nos. 1 to 5 of the CCP are fulfilled, for example:
- the judgment is based on a document that was initially, or subsequently, forged;
- the judgment is based on false testimony (of a witness, an expert or a party under oath);
- the judgment is obtained by the representative of either party, or by the other party, by way of criminal acts (eg, deceit, embezzlement, fraud, forgery of a document or of specially protected documents, or of signs of official attestations, indirect false certification or authentication or the suppression of documents);
- the judgment is based on a criminal verdict that was subsequently lifted by another legally binding judgment; or
- the award concerns matters that are not arbitrable in Austria.
Further, a party can also apply for a declaration of the existence or non-existence of an arbitral award.
Levels of appeal
How many levels of appeal are there? How long does it generally take until a challenge is decided at each level? Approximately what costs are incurred at each level? How are costs apportioned among the parties?
Pursuant to article 615 of the CCP, the Austrian Supreme Court is the court of first and last instance for actions for setting aside an arbitral award and for actions for declaration of the existence or non-existence of an arbitral award (ie, there is no appeal against decisions of the Supreme Court in these matters).
Article 616(1) of the CCP stipulates that the procedure in the action for setting aside an arbitral award and the action for declaration of the existence or non-existence of an arbitral award is the same as that performed in front of a court of first instance. This means that the Supreme Court must apply the same procedural rules as a court of first instance (eg, in the context of taking evidence).
Recognition and enforcement
What requirements exist for recognition and enforcement of domestic and foreign awards, what grounds exist for refusing recognition and enforcement, and what is the procedure?
Domestic arbitral awards are enforceable in the same way as domestic judgments.
Foreign awards are enforceable on the basis of bilateral or multilateral treaties that Austria has ratified – the New York Convention being by far the most important legal instrument. Thus, the general principle that mutuality of enforcement must be guaranteed by treaty or decree remains applicable (as opposed to the respective provisions under the UNCITRAL Model Law).
Enforcement proceedings are essentially the same as for foreign judgments.
Time limits for enforcement of arbitral awards
Is there a limitation period for the enforcement of arbitral awards?
There is no limitation period applicable to the commencement of enforcement proceedings. However, it is advisable to apply the 30-year statutory limitation period applicable to proceedings for enforcement of judgments under the law by analogy.
Enforcement of foreign awards
What is the attitude of domestic courts to the enforcement of foreign awards set aside by the courts at the place of arbitration?
Under article V(1)(e) of the New York Convention, the recognition and enforcement of a foreign arbitral award may be refused if the award has been set aside or suspended by the competent authority of the country in which, or under the laws of which, that award was made.
Austria is a contracting state to the New York Convention and Austrian courts would, therefore, in general, refuse enforcement of such an award. However, if an award has been set aside because it conflicts with public policy at the place of arbitration, Austrian courts must assess whether the award would also violate public policy in Austria. If the award is not in conflict with Austrian public policy, Austrian courts would probably enforce such an award.
Enforcement of orders by emergency arbitrators
Does your domestic arbitration legislation, case law or the rules of domestic arbitration institutions provide for the enforcement of orders by emergency arbitrators?
Article 45 of the Vienna Rules provides for an expedited procedure. However, there are no specific rules on the enforcement of orders issued in such proceedings by emergency arbitrators. The same goes for domestic arbitration legislation (including case law).
Cost of enforcement
What costs are incurred in enforcing awards?
The prevailing party is entitled to recover the lawyers’ fees from the opponent in accordance with the Austrian Act on Lawyers’ Fees (a schedule of fees based on the amount in dispute).
Court fees are also based on the amount in dispute. If the principal amount of the enforced claim is, for example, for €1 million, the court fee for the enforcement against movable property would amount to approximately €2,500; if the enforcement is against immovable property, the court fee would be approximately €23,000.
Austria March 5 2024
Proceedings subsequent to issuance of award
