I INTRODUCTION

i The Austrian Arbitration Act: history, scope and application

Austria has a long-standing history of arbitration; the first legal provisions in the Austrian Code of Civil Procedure (ACCP) on arbitral proceedings date back to 1895. In 2006, the legislator adopted the Arbitration Amendment Act 2006,2 thereby modernising the arbitration provisions mostly based upon the UNCITRAL Model Law on International Commercial Arbitration (Model Law). Although the legislator also maintained certain provisions of the old law (e.g., Section 594(4) on the liability of arbitrators), it is fair to state that Austria considers itself to be a Model Law country. The Arbitration Amendment Act 20133 introduced a major revision to the court system with respect to arbitration-related matters (see subsection v). Despite the term 'Arbitration Act', the Austrian arbitration law is contained in Sections 577 to 618 ACCP.

Pursuant to Section 577 ACCP, the Arbitration Act is not only applicable if the seat of arbitration is in Austria (Section 577(1) ACCP), but also in certain instances where the seat is not in Austria or has not yet been determined (Section 577(2) ACCP). Thereby, Austrian courts assume jurisdiction in arbitration matters even when the seat is not (yet) determined to be in Austria. This is the case in particular where a claim is brought despite an existing arbitration agreement (Section 584 ACCP), where interim measures are sought (granting or enforcement, or both, by Austrian state courts: see Sections 585 and 593 ACCP) and in other cases of judicial assistance (Section 602 ACCP).

ii Arbitration agreements

The definition of arbitration agreement under Austrian law (Section 581(1) ACCP) resembles that of Article 7 Model Law. Thus, an arbitration agreement may be a separate agreement or a clause contained in a main contract. Both contractual and non-contractual disputes may be subject to arbitration. The jurisprudence (which is confirmed by legal literature) derives from this provision that the following three requirements must be fulfilled for an agreement to qualify as an arbitration agreement under the law: the determination of the parties to the dispute, the subject matter of the dispute that is submitted to arbitration (which can be a certain dispute or all disputes arising out of a certain legal relationship) and an agreement to arbitrate.

Furthermore, Subsection (2) of Section 581 ACCP provides that an arbitration agreement may also be included in statutes – that is, the articles of association of legal entities such as companies or associations – as well as in a testament.

Regarding the form of an arbitration agreement, Austrian law still requires the written form (Section 583(1) ACCP). However, this does not necessarily mean that the arbitration agreement must be signed by both parties: an 'exchange of letters, telefaxes, emails or other means of communications which provide a record of the agreement' also suffices. Apart from the provision in the ACCP, it is generally accepted that Article II of the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (NYC) is a uniform substantive provision in an international context. Thus, the fulfilment of this uniform standard takes precedence over any stricter requirements under national law.4

iii Arbitrability

Section 582(1) ACCP defines the arbitrability ratione materiae of claims as follows: claims of an economic or financial interest that fall within the jurisdiction of the ordinary civil courts; and claims without any economic or financial interest, but for which parties may conclude a settlement agreement. Pursuant to Subsection (2), the following claims may not be subject to arbitration: claims in family law matters and certain claims related to housing law.

Although this is not a question of arbitrability in the narrow sense of the law, matters of employment law (Section 618 ACCP) or concerning consumers (Section 617 ACCP) are subject to very strict limitations and are thus dealt with under this heading. The requirements are essentially the same for both kinds of persons (consumers and employees), and can be summarised as follows:

  1. an arbitration agreement with a consumer or employee can only be validly concluded after a dispute has arisen;
  2. the arbitration agreement must be contained in a separate document signed by the consumer or employee in person. Such document may not contain any agreements other than those relating to the arbitration proceedings;
  3. prior to the conclusion of the arbitration agreement, the consumer or employee shall receive a written instruction on the major differences between arbitration and litigation before state courts;
  4. determination of the seat of arbitration and other requirements as to the venue of the hearing;
  5. the seat of arbitration must be at the place of the domicile of the consumer or employee unless it is the consumer or employee who relies on a seat outside of his or her place of domicile;
  6. further grounds for setting aside; and
  7. a three-instance system for setting aside claims.

In conclusion, it is very unlikely that an arbitration agreement with a consumer or an employee is validly concluded in compliance with the above-indicated requirements. Moreover, it should be noted that in arbitration proceedings where individuals are involved, one side might invoke the objection that the individual must be considered as a consumer under the Arbitration Act, and that the arbitral award thus runs the risk of being set aside for this reason.

iv Appointment and challenge of arbitrators

Sections 586 and 587 ACCP stipulate that the parties are free to determine the number of arbitrators and the procedure for appointing them. Absent any agreement of the parties (in particular any agreement on institutional rules) or if the parties agree on an even number, the number of arbitrators shall be three.

Section 587 ACCP stipulates the default procedure for appointing arbitrators if the parties have not reached agreement on their own procedure. Where a party fails to appoint an arbitrator, or the parties fail to jointly nominate a sole arbitrator or a chairperson, it is the Austrian Supreme Court that acts as appointing authority (see Section 615 ACCP). It is noteworthy that in multiparty proceedings, where several parties on one side, despite an obligation to do so, fail to jointly appoint their arbitrator, either party may ask the Court to step in for the failing side, but not for the side that has timely appointed its arbitrator (see Subsection (5)). Section 587(6) ACCP is a catchall provision that applies if, for any reason whatsoever, an arbitrator is not appointed within a reasonable period of time.

Sections 588 and 589 ACCP govern the challenge of arbitrators in accordance with Articles 12 and 13 of the Model Law. Thus, a prospective arbitrator has a duty to disclose any circumstances giving rise to doubts as to his or her impartiality or independence. The arbitrator also has the duty to remain impartial and independent throughout the proceedings. Unless the parties have agreed on a certain procedure of challenging arbitrators (in particular by agreement on a set of arbitration rules), Section 589(2) ACCP provides for a default procedure. Irrespective of whether there is an agreed procedure of challenge or the default procedure applies, the challenging party may request the Supreme Court to decide on the challenge if it was not successful.

In recent decisions of the Supreme Court, the question of whether a violation of the arbitrator's duty to disclose may constitute a ground for successful challenge has arisen. The Court has confirmed this question in cases where the arbitrator has failed to disclose in a culpable way (very extreme cases). In those decisions, the Supreme Court also explicitly referred to the IBA Guidelines on Conflicts of Interest in International Arbitration as the common international standard.5

v The court system

Since the revision of the Arbitration Act in 2013, Section 615 ACCP provides that the first and final court instance to rule on setting aside claims (Section 611 ACCP) and for claims on the declaration of the existence or non-existence of an arbitral award (Section 612 ACCP) is the Austrian Supreme Court. Previously, setting aside proceedings would have undergone three instance proceedings, like any other ordinary civil proceedings. Furthermore, the Supreme Court is also the exclusive instance on all issues regarding the formation of the tribunal and the challenge of arbitrators (i.e., the Third Title of the Arbitration Act). This 2013 revision of the Arbitration Act was preceded by controversial debates among practitioners, scholars and the judiciary. The reason is that the single instance concept is quite exceptional in the Austrian court system, as in ordinary civil proceedings there is not only a monetary threshold to be exceeded (€30,000), but the case to be tried before the Supreme Court must also touch upon a question of substantive or procedural law that is considered to be essential for legal unity, legal certainty or legal development. However, under Section 615 ACCP, any arbitral award rendered in Austria may be challenged before the Supreme Court. Another reason why the 2013 revision is considered to be a slight revolution in the court system is the fact that the Supreme Court itself must conduct evidentiary proceedings where necessary, including the examination of witnesses.

Although not required under the law, the revision of 2013 prompted the internal organisation of the Supreme Court to establish a specialised chamber (consisting of five Supreme Court judges) that is competent for all arbitration-related matters. This concentration on a limited number of judges should further enhance the reliability and consistency of the jurisprudence in the field of arbitration.

The introduction of this single instance jurisdiction and the establishment of a specialised chamber within the Supreme Court demonstrate both the Austrian legislators' and judicature's awareness that the legal infrastructure is essential to foster arbitration proceedings seated in Austria.

Apart from the Supreme Court, the other courts dealing with arbitration matters are the district courts, which rule on requests for interim measures, the enforcement of interim measures, and the enforcement of international and domestic awards.

vi Interim measures and judicial assistance

Section 585 ACCP mirrors Article 9 of the Model Law, and stipulates that it is not incompatible with an arbitration agreement for a party to request an interim measure from a state court. An Austrian district court has international jurisdiction to issue an interim measure during or prior to arbitral proceedings if the debtor has its seat or habitual residence, or if the assets to be seized are located in, the court's district (see subsection v). Thus, it is not necessary that the seat of arbitration is also in Austria. Conversely, the fact that the seat of arbitration is in Austria does not necessarily mean that an Austrian district court is competent to issue an interim measure.

Furthermore, Section 593(1) and (2) ACCP contain the requirements for an arbitral tribunal having its seat in Austria to issue interim or protective measures. Subsections (3) to (6) further govern the enforcement of such measures issued by any tribunal. It is noteworthy that these provisions on enforcement apply to measures issued by tribunals irrespective of whether the tribunal has its seat in Austria (see Section 577(2) ACCP). Thus, the Austrian arbitration law enables the enforcement of interim or protective measures issued by foreign arbitral tribunals without any requirement for exequatur proceedings. In addition, if a measure ordered by the tribunal (whether foreign or domestic) is unknown to Austrian law, the competent enforcement court shall, upon request and after having heard the other side, apply such measure that is most similar to the one ordered by the tribunal.

Under Section 602 ACCP, an arbitral tribunal may ask an Austrian court to perform certain acts for which the tribunal has no authority. Again, Austrian arbitration law enables both foreign and domestic tribunals to make use of such requests, and also includes requests for judicial assistance by other courts, including foreign courts' authorities. Therefore, Section 602 ACCP allows, for instance, a foreign arbitral tribunal to make a request to an Austrian court that the Austrian court ask a court in a third country to perform an act of judicial assistance. The most common acts that a tribunal would request relate to measures of interim or protective measures or measures in the taking of evidence (e.g., summoning witnesses and taking oaths from them).

vii Setting aside of arbitral awards

Under the Arbitration Act of 2006 (as revised most recently in 2013), any kind of arbitral award may be challenged under Section 611 ACCP. This therefore includes interim awards, partial awards and awards on jurisdiction. The provision distinguishes between legal grounds that must be revoked by the claimant seeking to set aside the award and legal grounds that are to be reviewed ex officio (see Section 611(3) ACCP). The reasons for setting aside are contained in Section 611(2) ACCP and may be summarised as follows:

  1. lack of an arbitration agreement and lack of arbitrability ratione personae;
  2. violation of a party's right to be heard;
  3. ultra petita;
  4. deficiency in the constitution of the tribunal;
  5. violation of the procedural public policy;
  6. grounds for reopening civil proceedings;
  7. lack of arbitrability ratione materiae; and
  8. violation of the substantive public order.

The last two grounds are those that the court must review ex officio.

The time limit to file a setting aside claim is three months starting from the date of notification of the award (Section 611(4) ACCP). The competent court is, except for matters involving consumers and matters of employment law, the Austrian Supreme Court as first and final instance (Section 615 ACCP).

viii Recognition and enforcement of arbitral awards

A domestic arbitral award (i.e., an award rendered in Austria) has the same legal effect as a final and binding court judgment (Section 607 ACCP). This means that such award can be enforced under the Austrian Execution Act (AEA) like any other civil judgment (see Section 1 No. 16 AEA). Once the chairperson of a tribunal (or, in his or her absence, any other member of the tribunal) has declared an award as final, binding and enforceable, the award creditor can make a request for execution under the AEA. The competent court is usually the district court in the district in which the debtor has its seat, domicile or habitual residence, or where the assets to be attached are located.

A foreign award (i.e., an award rendered outside of Austria) may be recognised and enforced under the AEA subject to international treaties and acts of the European Union (see Section 614 ACCP), in particular the NYC and the European Convention on International Commercial Arbitration of 1961 (European Convention). Both Conventions are applicable in parallel. Therefore, the creditor can simultaneously rely on either Convention or on both, while the debtor must invoke grounds under both Conventions to be successful. Under the European Convention, the enforcement of a foreign award may be refused if the award was set aside on certain legal grounds. A violation of public policy is, for instance, not a ground recognised under Article IX of the European Convention. Thus, an arbitral award that was set aside for reasons of public policy at the seat of arbitration can, nevertheless, be recognised and enforced in Austria.

There are currently no acts of the EU applicable to the enforcement of foreign arbitral awards.

A request for exequatur and a request for execution can be jointly filed in the same proceedings under the AEA. The Supreme Court has repeatedly held that in institutional arbitral proceedings, a certified copy of the arbitral award indicating the body or person that has certified the award (including the signatures of the arbitrators) and the reference to the applicable provision under the arbitration rules usually suffice to fulfil the formal requirement. In other words, in institutional arbitration, it is not necessary to have the signatures of the arbitrators certified by a local notary and legalised by the local authority (The Hague Apostille). Furthermore, pursuant to Section 614(2) ACCP, it is not necessary to submit the original arbitration agreement or a certified copy thereof as required under Article IV(1)b of the NYC. Both this legal provision and the Supreme Court's jurisprudence are a clear indication that the recognition and enforcement of foreign arbitral awards in Austria shall not be subject to excessive formal requirements.

ix Arbitral institution

The Vienna International Arbitral Centre (VIAC) attached to the Austrian Chamber of Commerce is the most renowned arbitral institution in Austria. Its recognition and casework are not limited to its geographic region: it has a strong focus on arbitrations involving parties from central, eastern and south-eastern Europe, but goes beyond these boundaries. Parties from (east) Asia as well as from the Americas and Africa have appeared in VIAC arbitrations in recent years.6

As of 1 January 2018, VIAC has revised both its arbitration rules (Vienna Rules) and mediation rules (Vienna Mediation Rules). Under the previous version of the Vienna Rules, VIAC could only accept cases where one of the parties had its place of business or usual residence outside Austria or, if both parties were from Austria, where the dispute was of an international character. Now, VIAC may also administer domestic cases that might also have effect on international matters. Under the old regime, it would have been doubtful whether two Austrian companies that were owned by foreign shareholders, and parties to a contract that was to be performed within Austria, could have submitted their dispute to VIAC. The other major revision is the introduction of an explicit provision on the tribunal's competence to order security for costs (Article 33(6) and (7) Vienna Rules 2018). Furthermore, VIAC has also adapted its fee schedule whereby the fees of the institution and for the arbitrators have been decreased for lower amounts in dispute and increased at the higher end of the spectrum. In this context, the new rules emphasise the principle of efficiency in conducting arbitration. Thus, not only the tribunal should take this principle into account when allocating the costs between the parties, but also VIAC when determining the costs of the arbitration. As a last resort, VIAC may even increase or decrease the arbitrators' fees by 40 per cent in particular circumstances.

As regards the revision of the Vienna Mediation Rules 2018, they not only provide for a modern procedural framework for mediation proceedings, but also for a combination of arbitration and mediation administered by VIAC and corresponding cost provisions in such a case. All in all, the revision of the Vienna Rules has not changed the nature of VIAC arbitration: it is known throughout the region for its cost-efficient manner of handling arbitration matters to an international standard.

VIAC has published a new (second) edition of its VIAC Handbook Rules of Arbitration and Mediation, which is an article-by-article commentary written by arbitration practitioners (available both in German and in English). On the occasion of its 40th anniversary in 2015, VIAC also published Volume 1 of 'Selected Arbitral Awards'. This work includes 60 arbitral awards rendered by arbitral tribunals under the Vienna Rules, and is a valuable contribution in response to the demand of both practitioners and the public for more transparency in international arbitration in general and of the work of arbitral institutions in particular.

II THE YEAR IN REVIEW

i Developments affecting international arbitration

The most important reform under the 2013 revision of the Arbitration Act was the determination of the Austrian Supreme Court as single instance for certain arbitration-related matters (see Section 615 ACCP). It entered into force on 1 January 2014, and applies to all proceedings initiated on or after that date. Simultaneously, the Supreme Court has established a specialised chamber that deals with the matters under Section 615 ACCP (the docket numbers of these decisions start with '18'). As demonstrated below, apart from the matters referred to in Section 615 ACCP (in most instances, setting aside proceedings, and proceedings relating to the constitution and challenge of arbitral tribunals), there are a number of other civil matters that involve issues of arbitration and that may be tried before first and second instance courts with the Supreme Court as final instance. Finally, proceedings on the recognition and enforcement of foreign arbitral awards are usually initiated with district courts, the decisions of which may be appealed and finally also brought before the Supreme Court. Enforcement matters are usually submitted to the chamber specialised in such matters and not to the arbitration chamber. In conclusion, parties can expect that under the Austrian court system relating to arbitration-related matters, in particular those with a foreign or international context, the Supreme Court will have the final say on certain legal issues of essential importance to the Austrian legal order.

ii Arbitration developments in local courts

In a matter where the Austrian Supreme Court is competent as first and final instance (see Section 615 ACCP),7 the plaintiff requested the Supreme Court to declare the non-existence of an arbitral award. The underlying facts arise out of a construction dispute in which the plaintiff and four out of five of the defendants were contractors, and the first defendant was the employer. After the dispute had arisen, all parties agreed to appoint an expert to deliver an expert opinion. The expert was asked to answer, inter alia, the following questions:

  1. What is the reason for the damage?;
  2. Who is responsible for the damage?;
  3. In the event several parties are responsible for the damage, who caused the damage from a technical and legal aspect, and in what relation?; and
  4. In what relation should the costs of remedy be born?

The Supreme Court confirmed that the expert opinion does not constitute an arbitral award. In its legal reasoning, the Supreme Court said that the distinction between an arbitration agreement and an agreement on the appointment of an expert must be drawn by interpretation of the individual matter. Such interpretation should not focus only on the definition and wording chosen by the parties, but also on the effects that the findings should have according to the intention of the parties. It depends whether the parties intended to have a decision that may only be overturned by ordinary courts for reasons stated in Section 611 ACCP (i.e., on the setting aside of arbitral awards) or whether it may be reviewed on the merits by the ordinary courts. In the particular matter, the Supreme Court found that the parties intended to find an amicable settlement based on the findings of the expert, that they agreed on the jurisdiction of a (particular) state court to review the expert opinion and that they thus wanted to avoid legal proceedings by agreeing on such expert opinion.

In a matter8 on the recognition and enforcement of a foreign arbitral award rendered in Sweden, the Supreme Court was called to review several grounds of refusal under the NYC. First, the Supreme Court did not question the authenticity of the award under Article IV NYC. The Supreme Court said that since the award debtor did not question the existence of the award itself, but merely complained about formalities, the debtor's objections were not justified. Regarding the alleged violation of the debtor's right to be heard under Article V(1)b NYC, the Supreme Court did not find any violation since the arbitral tribunal did engage in the debtor's set off claim and rejected it with a – formally unobjectionable – legal reasoning, and the refusal of individual questions to the witnesses, which the tribunal explained, does not constitute such violation. With regard to the alleged breach of procedural provisions agreed by the parties (in the present case, an agreement on the IBA Rules on the Taking of Evidence), the Supreme Court said that the debtor did not even provide prima facie evidence of such breach: thus, the Supreme Court did not find a breach of the procedural public order. Likewise, the Supreme Court did not find a breach of the substantive public order. With regard to the alleged invalidity of the arbitration agreement, the debtor raised two aspects:

  1. first, it alleged that the entire main contract, including the arbitration agreement contained therein, was obtained by fraud. The Supreme Court found that the debtor did not discharge its burden of proof in this regard; and
  2. the second aspect relates to the debtor's allegation that the main contract contains both an arbitration agreement and an agreement on the jurisdiction of the Cypriot courts, and that the two clauses are contradictory.

According to the debtor, the arbitration agreement was – as was the entire main contract – subject to Cypriot law, while the arbitral tribunal applied, in the view of the debtor incorrectly, Swedish law, as the seat of arbitration was in Sweden. The Supreme Court held that the question of which law shall be applicable to an arbitration agreement shall be answered by way of interpretation on a case-by-case basis. In the current matter, a literal interpretation allowed the conclusion that Cypriot law was applicable to the arbitration agreement. Austrian courts shall apply foreign law ex officio; this principle also applies in recognition and enforcement proceedings. In conclusion, the Supreme Court overturned the decisions of the lower instance courts, remitted the matter to the first instance (i.e., the competent district court) and instructed the lower instance court to apply Cypriot law by obtaining a legal opinion from a court-appointed expert.

The Supreme Court was twice involved in an ad hoc arbitration matter: first,9 the claimant requested that the Supreme Court appoint a co-arbitrator for a defaulting respondent. After the filing of such request, insolvency proceedings were opened over the respondent's assets. Since Section 7 of the Austrian Insolvency Act orders the suspension of any proceedings (and pursuant to the Supreme Court's case law,10 also of arbitration proceedings), the Supreme Court held that such suspension also extends to the proceedings on the appointment of an arbitrator. The claimant then apparently filed its claim in the insolvency proceedings. The insolvency administrator contested the claimant's claim. The claimant requested the Supreme Court11 to resume the procedure for the appointment of an arbitrator, while the insolvency administrator asked the Supreme Court to reject such request. With a lengthy legal reasoning, the Supreme Court finally held that if a claim was filed in arbitration proceedings prior to the initiation of insolvency proceedings, the assessment of such claim shall be continued in the arbitration as long as only the insolvency administrator has contested the claim. The Supreme Court left it open whether the same would apply if one of the other insolvency creditors contested the claim.

In a setting aside claim, the Supreme Court was also seized twice. First, it rejected the setting aside claim because the claim was filed (and signed only) by the executive manager of the setting aside claimant. After the Supreme Court returned the claim to the claimant and stated that it must be filed by an attorney-at-law through the electronic submission system, the claim was filed again, this time by an attorney, but only by post. The Supreme Court rejected the claim.12 The attorney then re-filed the claim through the electronic submission system and applied for a restitutio in integrum.13 The attorney explained that on the last day of the expiry of the deadline, the law firm had difficulties with its IT system. In these proceedings, the Supreme Court was confronted essentially with two legal questions. The minor question was whether the application for restitutio in integrum was justified, which the Supreme Court confirmed. The major question, however, was whether the Supreme Court may apply a provision of the ACCP by analogy and reject a claim on a legal remedy after a preliminary review and without conducting an oral hearing. The Supreme Court answered this question in the affirmative. In the present matter, the Supreme Court found that the setting aside claim did not raise any relevant setting aside ground. In particular, the Supreme Court held that the setting aside claimant's allegations – that the arbitration agreement was contradictory in itself, that the arbitral tribunal was constituted in breach of the statutory provisions and that the procedure was in breach of the procedural public order – were without merit.

In a setting aside claim under the old regime,14 the Supreme Court was involved as third (and final) instance upon the filing of an extraordinary legal remedy of the setting aside claimant. After the lower instance courts had reviewed various other setting aside grounds in this matter, the scope of the Supreme Court's decision was essentially limited to the question of whether the present arbitration agreement had become invalid due to the expiry of a time limit or the termination by one party of the arbitration agreement, or both. It should be added that the arbitration agreement provided for expedited proceedings, but the arbitration, which concluded with a final award, took longer than the time limit. The lower instance courts found that the arbitration agreement was not subject to a time limitation in the sense that the arbitration agreement would become invalid if the time limit were exceeded. The Supreme Court did not find that it should deviate from these decisions because, among other things, the interpretation of an arbitration agreement should be done on a case-by-case basis and does not constitute a material legal question (which would justify the extraordinary legal remedy). Likewise, the Supreme Court approved the interpretation of the lower instance courts that a particular declaration was not to be construed as the termination of the arbitration agreement. Thus, the Supreme Court confirmed that the setting aside claim should be rejected.

iii Investor–state disputes

Under the ICSID regime, there are currently 10 cases pending in which an Austrian investor has brought a claim against a state (the respondent states are Tajikistan, Romania, Libya, Argentina, Italy, Serbia, Montenegro and Croatia). The most recent claim was filed in 2019 by an individual against Tajikistan. In June 2018, several investors from various countries, one of which is Austrian, jointly filed a claim against Romania with ICSID. According to news reports, the matter relates to changes in Romania's legal regime on renewable energy. The timing is of particular interest, since the claim was filed after the Court of Justice of the European Union (CJEU) rendered its famous Achmea decision according to which the arbitration clause in a particular bilateral investment treaty between two EU Member States was found to be incompatible with EU law. It is further worth noting that in 2017, four Austrian banks each filed claims against Croatia because of the mandatory conversion of loans in Swiss francs into loans denominated in euro. One of these four banks has further filed a claim against Montenegro for similar reasons. In the four banking cases against Croatia, the banks are represented by three different law firms, while the state has retained one firm for all four matters. On the other side, Austria was sued by a Dutch company under the bilateral investment treaty between Austria and Malta in 2015. This case has received particular attention by the media not only because it is the first investment case against Austria, but also because the claimant company belongs to the Meinl Bank group, which is a bank registered in Austria. In 2017, the arbitral tribunal declared the proceedings closed. Media reports say that the claim was rejected. Due to an interpellation in the Austrian parliament, it became public that the same claimant, that is, the affiliate of Meinl Bank, filed a new claim against Austria, this time before the ICC in Paris.

To date, no other cases under arbitration rules other than those mentioned above are publicly known.

III OUTLOOK AND CONCLUSIONS

The amendment of the Arbitration Act in 2013 and the revision of the Vienna Rules in 2018 demonstrate that Austria and its arbitration community constantly observe trends in international arbitration and improve the legal framework where necessary. These efforts are supported by the jurisprudence, particularly since the Supreme Court has established a special chamber that rules on all matters relating to setting-aside claims and the composition of arbitral tribunals. The Supreme Court also regularly makes reference to international arbitration standards such as, for instance, the IBA Guidelines on Conflicts of Interest in International Arbitration. These overall developments should enable cost and time-efficient arbitral proceedings and related state court proceedings, both in compliance with international standards and the requirements under the rules of law. Austria (and in particular Vienna) is thus considered to be a regional arbitration hub with a strong focus on countries in the CEE and SEE regions.

As regards investor–state arbitrations, developments in recent years have shown that Austrian investors are more and more willing to make use of their rights under investment treaties. Despite the Achmea judgement of the CJEU, this trend might continue.


Footnotes

1 Venus Valentina Wong is counsel and Alexander Zollner is a senior associate at Wolf Theiss Attorneys-at-Law.

2 Federal Law Gazette I 2006/7.

3 Federal Law Gazette I 2013/118.

4 See Reiner, 'The New Austrian Arbitration Act', Journal of International Arbitration, Section 583, footnote 38.

5 Austrian Supreme Court, 5 August 2014, docket numbers 18 ONc 1/14 p and 18 ONc 2/14 k; see Wong, Schifferl, 'Decisions of the Austrian Supreme Court in 2013 and 2014', in Klausegger et al., Austrian Yearbook on International Arbitration 2015, 338 et seq.

7 Austrian Supreme Court, 30 November 2018, 18 OCg 5/18m.

8 Austrian Supreme Court, 19 December 2018, 3 Ob 153/18y.

9 Austrian Supreme Court, 17 April 2018, 18 ONc 2/18s.

10 Legal ruling RS0130016.

11 Austrian Supreme Court, 30 November 2018, 18 ONc 2/18s.

12 Austrian Supreme Court, 30 May 2018, 18 OCg 1/18y.

13 Austrian Supreme Court, 21 August 2018, 18 OCg 1/18y.

14 Austrian Supreme Court, 17 January 2019, 5 Ob 63/18b.