LEGAL FRAMEWORK AND COURTS
• Arbitration in Austria has a remarkable tradition. The first arbitration institutions were set
up as early as 1883.
• Austria has a modern arbitration law up to international standard (UNCITRAL Model Law
country since 2006).
• Emphasis is placed on party autonomy as regards choice of law, choice of arbitrators
and legal representation, language, agreements as to arbitral procedure.
• The Austrian courts are well acquainted with and are essentially supportive of arbitration,
i.e. there is a certain tendency to uphold arbitration agreements and arbitral awards, except for “serious” cases. A large body of jurisprudence in arbitration matters provides for a certain predictability of results.
• The often used violation of “public policy” argument is seldom successful in case awards
are challenged in court, but courts take a strict position when it comes to the right to
be heard.
• Incorrect application or violation of dispositive as well as mandatory law is not regarded
as a violation of Austrian public order. Unlike in CIS jurisdictions, the public order exception is applied by Austrian courts restrictively. Austrian public order is the total of the “fundamental principles of the Austrian legal order, including constitutional and human rights”.
• Arbitrability is defined broadly: Any pecuniary claim within the jurisdiction of the courts is arbitrable. Non-pecuniary claims are arbitrable insofar as the parties are able to conclude a settlement over the matter in dispute.
• Under Austrian law, many types of disputes that are classified as “shareholder“ or “corporate” disputes, are arbitrable. In Ukraine, for instance, such disputes are non-arbitrable as a matter of law.
• Unlike the UK, Austria is not only a signatory of the New York Convention but also of
the Geneva Convention 1961 (also ratified by Russia, Ukraine, Kazakhstan, Belarus and Azerbaijan).
• One of the unique features of the Geneva Convention is that it allows for remedying
“defective” arbitration agreements, i.e. if parties have failed to agree on the organization of proceedings, have agreed on arbitration by a permanent institution without determining the institution in question or have failed to specify the mode of arbitration (institutional or ad hoc).
THE VIENNA INTERNATIONAL ARBITRAL CENTRE (VIAC)
Introduction
• The VIAC was set up by the Austrian Federal Economic Chamber (AFEC) in 1974 as a structurally integrated part of the AFEC, a self governing public law entity which is independent from public authorities. The VIAC, although being part of the AFEC, is fully independent within the AFEC organisation.
• The VIAC was originally set up as a venue for East-West international arbitration in a neutral country alongside Switzerland and Sweden. Over the years, the VIAC has developed into an internationally accepted arbitration institution with a worldwide coverage.
• The VIAC administers international commercial arbitrations under its Rules of Arbitration and Conciliation (Vienna Rules).
• The VIAC’s website can be found at http://wko.at/arbitration.
The structure of the VIAC
• The VIAC’s governing bodies are the Board and the Secretary-General. To enhance its international expertise and coverage, the VIAC, in 2010, also established an International Advisory Board.
The Board
• The Board consists of 9 members, all arbitration specialists, who are elected by the General Assembly of the AFEC. It is headed by the President.
• The Board supervises the work of the Secretary-General and, in addition, performs the following tasks: It (i) decides on the number of arbitrators (one or three) if the parties have failed to agree on that number, (ii) appoints sole arbitrators, co-arbitrators and chairmen if the parties have failed to agree or to make an appointment and (iii) decides on challenges to arbitrators.
The Secretary-General
• The Secretary-General is in charge of the day-to-day case administration supported by his trained staff. He calculates and administers the deposits to be paid by the parties on account of arbitrators’ fees and expenses.
The International Advisory Board (IAD)
• The IAD consists of 11 international arbitration experts. The current IAD members are:
Stefano Azzali (General Secretary, Camera Arbitrale di Milano),
Karl-Heinz Böckstiegel (President, German Arbitration Institution),
James Castello (King & Spalding, Paris),
László Kecskés (President, Permanent Court of Arbitration at the Hungarian Chamber of
Commerce and Industry),
Bohuslav Klein(Attorney-at-Law, Prague),
Alexander Komarov (President, International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation),
Pjotr Nowaczyk (Partner, Salans, Warsaw),
Michael Pryles (Chairman, Singapore International Arbitration Centre),
Krešimir Puharic (President, Permanent Court of Arbitraˇtion at the Chamber of Commerce and Industry of Slovenia),
Jernej Sekolec (former Secretary of UNCITRAL, Vienna) and
Hrvoje Sikiric (President, Permanent Arbitration Court at the Croatian Chamber of Economy, Zagreb).
• The IAD performs an advisory function concerning issues of immediate interest.
The competence of the VIAC
• The VIAC administers disputes in which not all of the contracting parties to the arbitration agreement had their place of business or normal residence in Austria at the time of the conclusion of the arbitration agreement.
List of International Arbitration Practitioners
• VIAC maintains a non-binding list of practitioners in international arbitration to assist parties in finding arbitrators. The list contains a number of arbitrators from Russia and Ukraine.
THE VIENNA RULES
• The Vienna Rules are the rules under which the VIAC administers international commercial arbitrations. They are currently available in the German, English, Czech and Russian languages.
• The Vienna Rules have been practice tested for more than 30 years and have been updated several times to reflect trends in international arbitration and changes in the law. The current version is that of 1 July 2006. To compare: The LCIA has become to be perceived not only as an English but also as an international institution by around 1985. The current LCIA Rules, which were introduced to reflect this development, are dated 1998.
RECOMMENDED ARBITRATION CLAUSE
• “All disputes arising out of this contract or related to its violation, termination or nullity shall be finally settled under the Rules of Arbitration and Conciliation of the Inter- national Arbitral Centre of the Austrian Federal Economic Chamber in Vienna (Vienna Rules) by one or more arbitrators appointed in accordance with these Rules.”
• APPROPRIATE SUPPLEMENTARY PROVISIONS:
(a) The number of arbitrators shall be ….. (one or three);
(b) The substantive law of…..shall be applicable;
(c) The language to be used in the arbitral proceedings shall be….. .
NO APPEAL ON A POINT OF LAW ARISING FROM AN AWARD
• The English Arbitration Act 1996 (unless agreed otherwise by the parties) allows for an appeal to the court on a point of law arising out of an award either (i) with the agreement of the other parties or (ii) with leave by the court (s. 69). In contrast, awards rendered in Austria can never be the subject of an appeal. An Award can only be challenged on narrowly defined grounds which mirror Article 34 of the UNCITRAL Model Law and Article V of the New York Convention.
ARBITRATION COSTS
General
• Costs are calculated according to a Schedule attached to the Vienna Rules. They are easy to calculate using the cost calculator at the VIAC website.
• At the commencement of an arbitration, the Claimant has to pay a Registration Fee
of € 2.000 which is then credited towards the deposit calculated later.
• The Administrative Charge of the VIAC and Arbitrators’ Fees depend on the amount in dispute.
• The fees for three arbitrators usually are two and a half times the fees for a sole arbitrator. In exceptional cases, the Secretary-General can raise the fees to three times that of a sole arbitrator. Fees range between a minimum and a maximum. Usually, an average of the two is charged.
• If there are more than 2 parties, the Administrative Charge and Arbitrators’ Fees are increased by 10% for each additional party.
• A feature that distinguishes the Vienna Rules from those of the LCIA is that fees are effectively capped and comprise all work done by the arbitrators (including partial and interim decisions, decisions on the challenge of arbitrators, interim measures, procedural orders, and the like). As a result, parties are able to “budget” their expected arbitrators’ fees, which, under the LCIA Rules they cannot do, as arbitrators’ fees are calculated by hourly rates. In a complex arbitration involving a variety of interim decisions by the arbitrators, costs become virtually unpredictable.
• The Administrative Charge covers all the work performed by the Secretary-General and his secretariat and the VIAC’s general overhead. In contrast, under the LCIA Rules, the time spent by a variety of LCIA staff (Registrar, Deputy Registrar, Counsel, Members of the LCIA Court) is charged at hourly rates ranging between £100 and £200 or “as advised by members of the LCIA Court”. There is also a charge of 5% of the total fees of the tribunal in respect of the LCIA’s general overhead. None of this exists under the Vienna Rules.
• In contrast to LCIA arbitrations, the only real “uncertainty” that exists as to costs are legal fees and cash disbursements, like fees for experts, interpreters, the taking of minutes, etc.
Practical examples (assuming 2 parties)
Amount in dispute € 10.000.000
• ADMINISTRATIVE CHARGE: € 20.500.
• ARBITRATORS’ FEES: € 74.500 (sole arbitrator), € 206.750 (three arbitrators (average)).
• TOTAL: € 244.000
Amount in dispute: € 100.000.000
• ADMINISTRATIVE CHARGE: € 29.500
• ARBITRATORS’ FEES: € 174.000 (sole arbitrator), € 465.750 (three arbitrators (average)).
• TOTAL: € 553.000
VIAC STATISTICS
Origin of parties
• In 2008 and 2009, parties from more than 40 countries from all continents (except for Australia) used the services of the VIAC. Among them were, for instance, parties from Russia, Ukraine, BVI, Cyprus and Kazakhstan.
Nationality of arbitrators
• 2008: Austria (43), Germany (12), Czech Republic (6), France (3), Switzerland (3), UK (2), Australia (2), Sweden (2), Hungary (1), USA (1) and Slovenia (1).
• 2009: Austria (48), Germany (5), Switzerland (4), UK, Slovakia, Czech Republic (3 each), Poland, Slovenia, Sweden (2 each) and France, Italy and USA (1 each).
Caseload
• In 2008 and 2009, the VIAC received approximately 60 new international cases per year.
It is expected that these figures will be exceeded in 2010. This compares favourably with Switzerland. In 2009, the seven Swiss Chambers of Commerce taken together received 104 new international cases.
Amounts in dispute
• 2008: minimum € 20.012, maximum € 1,2 billion.
• 2009: minimum € 4.870, maximum € 162.368.707.
Average duration of proceedings
(without cases that settled)
• 2008 and 2009: 11,5 months from filing of Statement of Claim to Final Award.
LEGAL FEES IN AUSTRIA
• The legal fees of Austrian law firms charged in international commercial arbitration, even of those firms considered “expensive”, are significantly below what is commonly referred to as “London Rates”.
• In LCIA arbitration, there is a certain tendency of representing solicitors to employ barrister (Leading Counsel) to prepare pleadings and to appear at hearings, which comes from English domestic litigation practice and adds to the arbitration cost. This is not the case in Austria although nothing prevents parties to employ Leading Counsel if they so wish.
Contact Details:
BAIER BÖHM Attorneys at Law Kärntner Ring 12
1010 Vienna / Austria
Tel.: +43 1 515 50 0
Fax: +43 1 515 50 50 office@baierboehm.at www.baierboehm.at
Managing Partner: Dr. Erhard Böhm
Tel.: +43 1 515 50 310
Fax: +43 1 515 50 50
e.boehm@baierboehm.at
The content of this article is intended to provide a general guide to the subject matter. Specialist advise should be sought about your specific circumstances.
