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AUSTRIA ARBITRATION CODE
Austria
- Code of Civil Procedure (as modified by Federal
Law of February 2, 1983) Fourth Chapter |
{ 1 } |
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Arbitration
Procedure - Arbitration Agreement |
{ 2 } |
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(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 } |
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(2) An arbitration agreement submitting future disputes
arising from a specified legal relationship
to arbitration by one or more arbitrators is
also valid. |
{ 5 } |
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(3) The arbitration agreement must be in writing
or be contained in telegrams or telex exchanged
by the parties. |
{ 6 } |
|
Judicial
officers may not accept appointment as arbitrators
during their tenure of judicial office. |
{ 8 } |
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No
one is obliged to accept appointment as arbitrator.
If he has reasonable cause an arbitrator may
resign even after accepting appointment. |
{ 10 } |
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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 } |
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(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 } |
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(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 } |
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(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 } |
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(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 } |
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(2) The order on the application is not subject
to appeal. |
{ 20 } |
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(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 } |
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(2) The same procedure shall be followed |
{ 23 } |
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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 } |
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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 } |
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(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 } |
|
(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 } |
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(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 } |
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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 } |
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(1) An arbitrator may be challenged for the same
reasons that a judge may be challenged. 1 |
{ 33 } |
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(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 } |
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Procedure
Before the Arbitrators |
{ 35 } |
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(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 } |
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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 } |
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(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 } |
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(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 } |
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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 } |
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(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 } |
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(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 } |
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(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 } |
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(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 } |
|
(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 } |
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(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 } |
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Cancellation
of the Award |
{ 58 } |
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The
award shall be set aside, |
{ 60 } |
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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 } |
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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 } |
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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 } |
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4. if a challenge to an arbitrator has been rejected
unjustifiably by the arbitral tribunal |
{ 65 } |
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5. if the arbitral tribunal dealt with matters
beyond those referred to it |
{ 66 } |
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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 } |
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(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 } |
|
(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 } |
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The
procedure on an application to set aside the
award shall be in accordance with the general
provisions of the present statute. |
{ 75 } |
|
(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 } |
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(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 } |
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