Model Clauses for Articles of Association
All disputes or claims arising between shareholders, between the company and its shareholders, between the company and its governing bodies or between governing bodies arising out of or in connection with these articles of association, including disputes concerning their validity, breach, termination or nullity, shall be finally settled under the Rules of Arbitration (Vienna Rules) of the International Arbitral Centre of the Austrian Federal Economic Chamber (VIAC) by one or three arbitrators appointed in accordance with said Rules. The place of arbitration shall be Vienna [or another place in Austria].
The following special participation rights shall apply to disputes in which the binding effects of the arbitral award are intended to be extended to shareholders or the company itself, even if they are not named as parties to the proceeding, such as in particular disputes concerning shareholder resolutions, as well as disputes concerning their contestability, defectiveness or nullity.
Commencing of the Proceedings
(1) The Secretary General shall transmit the statement of claim to the respondent and the named affected entities in accordance with Article 7 paragraph 4 Vienna Rules.
(2) The respondent may in its answer to the statement of claim (Article 8 Vienna Rules), and the named affected entity in its
declaration to join (Article 3 Annex 7 Vienna Rules), name additional affected entities who were not named by the claimant, stating their full names and addresses, including electronic mail addresses, and other contact details.
(3) If the company is the respondent, the company shall take every appropriate measure to ensure that all affected entities are included. At the request of the Secretary General the company shall provide
information on the measures taken within a time limit set by the Secretary General.
(4) The Secretary General shall proceed pursuant to Article 2 paragraph 3 Annex 7 Vienna Rules if additional affected entities
are named.
Option to Join
(5) The Secretary General shall request the affected entities to submit a declaration to join within 30 days of receipt of the statement of claim respectively answer to the statement of claim. The Secretary
General shall simultaneously inform the affected entities of their right to information pursuant to Article 8 Annex 7 Vienna Rules.
(6) If a declaration to join pursuant to Article 2 paragraph 4 Annex 7 Vienna Rules lists additional named entities, the statement of claim and the answer to the statement of claim as well as a copy of the declaration to join naming them shall be transmitted in hardcopy form to the newly named affected entity, with the request to submit a declaration to join within 30 days of receipt in accordance with Article 3 Annex 7 Vienna Rules.
Joinder of Affected Entities
(7) By submitting the declaration to join within the set time period, the named affected entity joins the proceedings (“joined affected entity”). Declarations to join submitted in accordance with Article 3 Annex 7 Vienna Rules shall be transmitted to the parties by the Secretary General.
(8) If the claimant and the respondent agree, the joined affected entity may join the proceeding as a party on the side of the claimant or the respondent.
(9) Prior to the transmission of the file (Article 11 Vienna Rules), the Secretary General shall, in electronic form, inform all parties and those named affected entities whose time limit to join has not yet elapsed, of the joining of an affected entity.
(10) If a named affected entity does not submit its declaration to join within the set time period, the right to participate in the constitution of the arbitral tribunal shall be deemed waived. The option for the
named affected entity to join the proceeding as an intervening party (Article 5 Annex 7 Vienna Rules) shall remain unaffected thereby.
(11) If a named affected entity joins the proceeding after the time limit set in Article 3 paragraph 1 Annex 7 Vienna Rules has elapsed, this shall be deemed as (i) consent to the constituted arbitral tribunal, and (ii) acceptance of the proceeding as it stands at the time of joining.
Intervention
(12) Affected entities may join the proceeding as an intervening party at any time until its termination (Article 34 Vienna Rules). The request must contain the information specified in Article 3 paragraph 3.1 Annex 7 Vienna Rules.
(13) The arbitral tribunal shall decide on the joinder pursuant to Article 14 paragraphs 1 and 2 Vienna Rules taking into account that the named affected entity has the right to participate in the
proceedings as an intervening party, and that the discretion of the arbitral tribunal is limited in this respect.
Constitution of the Arbitral Tribunal
(14)If the dispute is to be resolved by a sole arbitrator, the parties and the joined affected entities shall jointly nominate a sole arbitrator and indicate the arbitrator’s name, address, including electronic mail address, and other contact details within 30 days after receiving the Secretary General’s request. If such nomination is not made within this time period, the sole arbitrator shall be appointed by the Board. The last day on which a party or a joined
affected entity received the request shall be the day triggering the commencement of the time limit (Article 12 Vienna Rules).
(15) If the dispute is to be resolved by a panel of arbitrators, the parties and the joined affected entities on claimant’s and
respondent’s side shall each jointly nominate an arbitrator. Deviating from Article 7 paragraph 2.5 and Article 8 paragraph 2.4 Vienna Rules, the nomination of an arbitrator in the statement of claim or the answer to the statement of claim is a non-binding proposal. The Secretary General shall request the parties and the joined
affected entities on the claimant’s and respondent’s side to jointly nominate an arbitrator within 30 days after receiving the request. The last day on which a party or a joined affected entity received the request shall be the day triggering the commencement of the time limit (Article 12 Vienna Rules). If a joint arbitrator is not nominated within this time period, the Board shall proceed in accordance with
Article 18 paragraph 4 Vienna Rules.
(16) The forwarding of declarations pursuant to Article 16 paragraph 3 and 4 Vienna Rules as provided for in Article 19 paragraph 1 Vienna Rules as well as the possibility to request comments as
provided for in Article 19 paragraph 2 Vienna Rules also apply to joined affected entities. Joined affected entities may challenge arbitrators pursuant to Article 20 Vienna Rules.
Concentration of Proceedings Through Consolidation
(17) Two or more proceedings concerning the same resolution shall be consolidated by the Board at the request of a party, a joined
affected entity or at the proposal of the Secretary General, applying Article 15 Vienna Rules mutatis mutandis. Deviating from Article 15 paragraph 1.1 Vienna Rules, the consolidation is also admissible even if not all parties and joined affected entities agree.
(18) If a request for consolidation is made prior to the confirmation of the nomination or the appointment of an arbitrator, the constitution of the arbitral tribunal shall be governed by Article 6 Annex 7 Vienna Rules. Thereafter, the proceedings shall be consolidated into the proceedings first commenced, unless the parties and joined affected entities agree otherwise. In this case, the Board may revoke arbitrator appointments already made and order the renewed constitution of the arbitral tribunal in accordance with the procedure set out in Article 6 Annex 7 Vienna Rules.
Information on the Status of the Proceedings
(19) Upon request, the arbitral tribunal shall inform the named affected entities of the status of the proceeding by transmitting
(Article 12 paragraph 2 Vienna Rules) the parties’ or intervening parties’ submissions as well as the arbitral tribunals’ decisions and orders.
(20) The arbitral tribunal may inform affected entities about other aspects of the case file, if they have filed such a request and if the arbitral tribunal considers that this information may be relevant for the affected entities to exercise their right to participate in the proceedings as intervening parties.
(21) The arbitral award shall be transmitted to the parties, the joined affected entities and intervening parties in accordance with Article 36 paragraph 5 Vienna Rules.
