Austria -
Code of Civil Procedure (as modified by Federal Law of February 2, 1983)
Fourth Chapter
|
1 |
Arbitration Procedure - Arbitration Agreement |
2 |
Article
577
|
3 |
(1) An agreement that a legal dispute shall be settled by
one or more arbitrators (an arbitration agreement) is valid insofar as the
parties are entitled to conclude a settlement concerning the subject matter
of the dispute. |
4 |
(2) An arbitration agreement submitting future disputes
arising from a specified legal relationship to arbitration by one or more
arbitrators is also valid. |
5 |
(3) The arbitration agreement must be in writing or be
contained in telegrams or telex exchanged by the parties. |
6 |
Article
578
|
7 |
Judicial officers may not accept appointment as
arbitrators during their tenure of judicial office. |
8 |
Article
579
|
9 |
No one is obliged to accept appointment as arbitrator.
If he has reasonable cause an arbitrator may resign even after accepting
appointment. |
10 |
Article 580
|
11 |
If the arbitration agreement contains neither the names
of the arbitrators nor a provision concerning number and appointment of
arbitrators, each party shall appoint an arbitrator, and they in turn shall
appoint the chairman of the arbitral tribunal. |
12 |
Article 581
|
13 |
(1) A party which is obliged to make an appointment of
an arbitrator pursuant to an arbitration agreement can be required by the
opposing party to appoint an arbitrator within 14 days and to give notice to
the party making the demand. If the appointment is to be made by a third
party, either party may make the demand. The demand may also be made if the
arbitrator who has already been appointed pursuant to the arbitration
agreement refuses to accept office as arbitrator or refuses to fulfil his
obligations or dies or is challenged successfully or ceases to act for any
other reason. |
14 |
(2) If the party making the demand also has to appoint
an arbitrator, the demand shall also give notice of the person appointed as
arbitrator. |
15 |
(3) The exchange of demands and notices can be made by
post or through a public notary. |
16 |
(4) A person who is called on to appoint an arbitrator
is bound by an appointment made by him as soon as the opposing party or one
of the parties has received notice of the appointment. |
17 |
Article 582
|
18 |
(1) If an appointment is not made within the proper time
or if the arbitrators cannot agree upon a chairman, the Court shall upon
application make the appointment. The application should be brought before
the Court which would have been competent to hear the dispute in first
instance in the absence of an arbitration agreement; however, if a Court has
been indicated in the arbitration agreement as being competent for this
purpose and if it would be possible for that Court to be given competence by
agreement of the parties (Art. 104(1) and (2) Judicature Act), or if the
arbitration agreement indicates the venue of the arbitral procedure, then
that Court is competent, or in the absence of such indication, the Court
under whose jurisdiction this venue comes. If there is no Court with local
jurisdiction, or if such Court cannot be ascertained, the application should
be brought before the Court which has local jurisdiction for the 1st
municipal district of Vienna, insofar as the arbitration agreement requires
the arbitral tribunal to meet within Austria. The application may be made by
the parties and under Article 580 by either of the arbitrators. The applicant
does not need to be represented by an attorney, even before the Superior
Court of First Instance. |
19 |
(2) The order on the application is not subject to
appeal. |
20 |
Article 583
|
21 |
(1) If the parties cannot agree on the arbitrator to be
appointed by them jointly, the Court mentioned in Article 582 shall pronounce
the rescission of the arbitration agreement. |
22 |
(2) The same procedure shall be followed |
23 |
1. if named persons are appointed as arbitrators in the
arbitration agreement and one of these arbitrators dies, ceases to act
consequent upon a challenge or for any other reason, refuses to accept office
as arbitrator or withdraws from the contract concluded with him because of
his appointment; or |
24 |
2. if an arbitrator who is named in the arbitration
agreement or appointed by a party pursuant to the arbitration agreement or by
the Court pursuant to Article 582 refuses to fulfil the obligations assumed
by his acceptance of office as arbitrator, or delays unreasonably in their
fulfilment. |
25 |
(3) If the arbitration agreement is concluded with
reference to all disputes arising out of a particular legal relationship and
the circumstances in which the Court is to declare the arbitration agreement
as rescinded are such that submission to arbitration of possible disputes
arising in the future is not excluded, the Court shall only declare the
arbitration agreement of no effect for the case in question. |
26 |
Article 584
|
27 |
(1) The decision on an application under Article 583
shall be made by order after an oral hearing. This decision and the decision on
an application under Article 582 may be made in the Superior Court of First
Instance by the President of the Court or by a judge authorized by him. |
28 |
(2) An arbitrator who does not fulfil in time or at all
the obligations assumed by his acceptance of office is liable to the parties
for all the loss caused by his wrongful refusal or delay, without prejudice
to the parties' rights to claim rescission of the arbitration agreement. |
29 |
Article 585
|
30 |
The provisions of Articles 582 and 583 are not
applicable insofar as the parties have agreed otherwise in the arbitration
agreement or in a written agreement made after the conclusion of the
arbitration agreement. |
31 |
Article 586
|
32 |
(1) An arbitrator may be challenged for the same reasons
that a judge may be challenged. 1 |
33 |
(2) A party which appoints an arbitrator alone or
jointly with the opposing party is entitled to challenge him only if the reason
for the challenge arose or became known to the party after the appointment. |
34 |
Procedure Before the Arbitrators |
35 |
Article 587
|
36 |
(1) The arbitrators shall hear the parties and investigate
the facts of the case before making their award. The procedure shall be
determined by the arbitrators in their discretion unless the parties have
agreed otherwise in the arbitration agreement or in a subsequent written
agreement. |
37 |
(2) If a party refuses to attend the hearing before the
arbitrators, the hearing shall continue in the presence of the other party. |
38 |
Article 588
|
39 |
The arbitrators are not entitled to administer the oath
to the parties, witnesses and experts, who appear voluntarily before them.
They may not apply coercive measures or award punishments against parties or
other persons. |
40 |
Article 589
|
41 |
(1) Those judicial acts considered necessary by the
arbitrators but which they have no jurisdiction to undertake will be carried
out by the State Court which has jurisdiction on the application of the
arbitrators. In case of doubt the application is to be made to the District
Court in whose district the act is to be carried out or the evidence to be
taken. |
42 |
(2) The Court to which the application is made shall
accede to it insofar as it is not legally inadmissible. In particular the Court
shall also take those decisions regarding taking of evidence which are
reserved by the present statute in the case of taking of evidence on
commission to the Court hearing the case. |
43 |
Article 590
|
44 |
If more than two arbitrators are to decide, the award
shall be made by an absolute majority unless the arbitration agreement
contains anything to the contrary. |
45 |
Article 591
|
46 |
(1) If the necessary majority for taking a decision, or
where there are only two arbitrators, unanimity cannot be reached the
arbitrators must inform the parties. |
47 |
(2) If no other provision for this case is contained in
the arbitration agreement or in a subsequent written agreement of the
parties, any party may apply to the Court mentioned in Article 582 for a
declaration that the arbitration agreement is rescinded or of no effect in
the particular case. |
48 |
Article 592
|
49 |
(1) Copies of the award shall be served on the parties
either in person before the arbitral tribunal or by post or by a public
notary. |
50 |
(2) These copies and the original of the award shall
mention the date of the making of the award and shall be signed by the
arbitrators. The signature of the majority of the arbitrators shall suffice
if there is a statement in the award that the minority refuses to sign or if
signature of the minority cannot be obtained because of an obstacle which
cannot be overcome within a reasonable period of time. |
51 |
Article 593
|
52 |
(1) The original award and documents recording the
service of copies on the parties shall be kept in safe custody by the person
named in the arbitration agreement. If no such agreement has been made or the
named custodian has died, the arbitrators shall determine the method of
deposit. In case of doubt these documents shall be deposited with a public
notary of the district where the arbitral tribunal has its seat. |
53 |
(2) The original of the award and the documents
recording service are to be deemed documents common to the parties. |
54 |
Article 594
|
55 |
(1) The arbitral award has the effect between the
parties of a final and binding Court judgment unless the parties have agreed
in the arbitration agreement that there shall be the possibility of an appeal
against the award to a second-tier arbitral body. |
56 |
(2) The chairman of the tribunal, or if he is unable to
act, any other arbitrator, shall at the request of a party confirm in writing
on a copy of the award the final and binding nature and the enforceability of
the award. |
57 |
Cancellation of the Award |
58 |
Article 595
|
59 |
The award shall be set aside, |
60 |
(1) |
61 |
1. if an arbitration agreement according to Article 577
does not exist, if the arbitration agreement has become invalid before the
making of the award or has ceased to have effect for the particular case or
if a party was unable to conclude the arbitration agreement because of its
status |
62 |
2. if the party applying to have the award set aside was
unable to present its case in the proceedings before the arbitrators or if
required by statute to be represented by an agent or guardian was not so
represented in those proceedings unless in the latter case the procedure has
been subsequently properly ratified |
63 |
3. if statutory or contractual provisions regarding the
composition of the arbitral tribunal or the method of reaching a decision
have been infringed or if the original of the award has not been signed in
accordance with the provisions of Article 592(2) |
64 |
4. if a challenge to an arbitrator has been rejected
unjustifiably by the arbitral tribunal |
65 |
5. if the arbitral tribunal dealt with matters beyond
those referred to it |
66 |
6. if the award is incompatible with the basic
principles of the Austrian legal system or if it infringes mandatory
provisions of the law, the application of which cannot be set aside by a
choice of law of the parties even in a case where a foreign contact according
to Article 35 of the International Private Law Act is involved |
67 |
7. if the conditions are present in which a request can
be made under Article 530(1) figures 1 to 7 for a Court judgment to be set
aside and the case reopened. 2 |
68 |
(2) In the cases set out in section (1) above, figures 2
to 7, the arbitration agreement will become invalid in respect of the subject
matter of the arbitration procedure if an arbitral award thereupon has been
set aside twice by final and binding judgment. |
69 |
Article 596
|
70 |
(1) If an application is made to set aside an award, the
application shall be made to the Court specified in Article 582. |
71 |
(2) If the application is based on one of the grounds
set out in Article 595(1) figures 1 to 6, it must be made within a time limit
of three months failing which the application will be time barred. The time
limit begins to run on the day of service of the award on the party
concerned, or, if the ground for rescission only came to the party's notice
later, from the day when the party became aware of the said ground. |
72 |
(3) The time limit for applications under Article 595(1)
figure 7 is governed by the provisions concerning the application to re-open
the case. |
73 |
Article 597
|
74 |
The procedure on an application to set aside the award
shall be in accordance with the general provisions of the present statute. |
75 |
Article 598
|
76 |
(1) A party cannot waive the application of Articles
586, 592 and 595, either in the arbitration agreement or any other agreement.
|
77 |
(2) If both parties have concluded the arbitration
agreement as businessmen (Article 1(1) figure 1 of the Consumer Protection
Act), they may waive the application of Article 595(1) figure 7. |
78 |
Article 599
|
79 |
(1) The provisions of this chapter are applicable
mutatis mutandis to arbitral tribunals constituted in ways permitted by
statute whether by will or other dispositions not being based on the
agreement of the parties to the dispute or by Articles of association. The
provisions of Articles 586, 592 and 595 may not be waived by unilateral
dispositions or provisions of Articles of association. |
80 |
(2) Arbitral tribunals constituted in accordance with
the Act for the Settlement of Differences in Associations 1951, Official Gazette
No. 233/1951, 3 are not subject to the provisions of this chapter. |
81 |