RULES OF ARBITRATION AND MEDIATION

VIENNA RULES AND VIENNA MEDIATION RULES 2018

in force as from 1 January 2018


Imprint

Publisher: Austrian Federal Economic Chamber
Wiedner Hauptstraße 63, 1045 Vienna

Graphics: LUCID Design & Werbung
Pilgramgasse 17/26, 1050 Vienna, www.lucid.at

Of the various languages in which the Vienna Rules
were translated, the English and German versions
are the only official texts.

VIAC Arbitration and Mediation Rules 2018
2nd edition (April 2020)



Index

PART I
RULES OF ARBITRATION

GENERAL PROVISIONS


Article 1 Competence of the VIAC and applicable version of the Vienna Rules

Article 2 Board

Article 3 International Advisory Board

Article 4 Secretary General, Deputy Secretary General and Secretariat

Article 5 Languages of Correspondence

Article 6 Definitions


COMMENCING THE ARBITRATION


Article 7 Statement of Claim

Article 8 Answer to the Statement of Claim

Article 9 Counterclaim

Article 10 Registration Fee

Article 11 Transmission of File

Article 12 Service, Time Limits and Disposal of File

Article 13 Representatives


JOINDER OF THIRD PARTIES AND CONSOLIDATION


Article 14 Joinder of Third Parties

Article 15 Consolidation


ARBITRAL TRIBUNAL


Article 16  General Provisions

Article 17 Constitution of the Arbitral Tribunal

Article 18 Constitution of the Arbitral Tribunal in Multi-Party Proceedings

Article 19 Confirmation of the Nomination

Article 20 Challenge of Arbitrators

Article 21 Premature Termination of the Arbitrator’s Mandate

Article 22 Effects of the Premature Termination of the Arbitrator’s Mandate


CHALLENGE OF EXPERTS


Article 23 Challenge of Experts


JURISDICTION OF THE ARBITRAL TRIBUNAL


Article 24 Jurisdiction of the Arbitral Tribunal


THE PROCEEDINGS BEFORE THE ARBITRAL TRIBUNAL


Article 25 Place of Arbitration

Article 26 Language of the Proceedings

Article 27 Applicable Law, Amiable Compositeur

Article 28 Conduct of the Arbitration

Article 29 Establishing the Facts of the Case

Article 30 Oral Hearing

Article 31 Duty to Object

Article 32 Closure of the Proceedings

Article 33 Interim and Conservatory Measures / Security of Costs

Article 34 Means of Termination of the Proceedings

Article 35 Decisions of the Arbitral Tribunal

Article 36 Arbitral Award

Article 37 Award on Agreed Terms and Recorded Settlement

Article 38 Decision on Costs

Article 39 Correction, Clarification and Supplementation of the Arbitral Award

Article 40 Remission to the Arbitral Tribunal

Article 41 Publication of Awards


COSTS


Article 42 Advance on Costs

Article 43 Advance on Costs for Additional Procedural Costs

Article 44 Composition and Calculation of the Procedural Costs


MISCELLANEOUS PROVISIONS


Article 45 Expedited Proceedings

Article 46 Disclaimer

Article 47 Transitional Provision 


PART II
RULES OF MEDIATION 

Article 1 Competence of the VIAC and Applicable Version of the Vienna Mediation Rules

Article 2 Definitions

Article 3 Commencing the Proceedings

Article 4 Registration Fee

Article 5 Place of the Sessions

Article 6 Language of the Proceedings

Article 7 Appointment of the Mediator

Article 8 Advance on Costs and Costs

Article 9 Conduct of the Proceedings

Article 10 Parallel Proceedings

Article 11 Termination of the Proceedings

Article 12 Confidentiality, Admissibility of Evidence and Subsequent
Representation

Article 13 Disclaimer

Article 14 Transitional Provisions 


PART III
ANNEXES TO THE RULES OF ARBITRATION AND THE RULES OF MEDIATION

Annex 1 Model Clause

Annex 2 Internal Rules of the Board

Annex 3 Schedule of Fees

Annex 4 VIAC as Appointing Authority


 


PART I
RULES OF ARBITRATION 

VIENNA RULES

GENERAL PROVISIONS 


COMPETENCE OF THE VIAC AND APPLICABLE VERSION OF THE VIENNA RULES

Article 1


(1) The Vienna International Arbitral Centre (hereinafter “VIAC”) is the Permanent International Arbitration Institution of the Austrian Federal Economic Chamber1. VIAC administers national and international arbitrations as well as proceedings pursuant to other alternative dispute resolution methods, if the parties have agreed upon


1.1 the VIAC Rules of Arbitration (hereinafter “Vienna Rules”) or

1.2 the VIAC Rules of Mediation (hereinafter “Vienna Mediation Rules”) or

1.3 otherwise upon the competence of the VIAC.


(2) The Vienna Rules shall apply in the version in effect at the time of the commencement of the arbitration (Article 7 paragraph 1), if the parties, before or after the dispute has arisen, have agreed to submit their dispute to the Vienna Rules.

(3) The Board may refuse to administer the proceedings if the arbitration agreement deviates fundamentally from and is incompatible with the Vienna Rules.

1 Acc to Sec 139 paragraph 2 of the Federal Statute on the Economic Chambers 1998 (“Wirtschaftskammergesetz 1998”), Federal Law Gazette I No. 103/1998 as amended by Federal Law Gazette I No. 73/2017

 

BOARD

Article 2


(1) The Board of the VIAC shall consist of a minimum of five members. The members of the Board shall be appointed for a term of up to five years by the Extended Presiding Committee of the Austrian Federal Economic Chamber upon recommendation by the President of the VIAC. Members may be appointed for consecutive terms.

(2) The members of the Board shall elect from among their number a President and up to two Vice Presidents. In the event the President is prevented from performing his duties, such duties shall be assumed by a Vice President in accordance with the Internal Rules of the Board (Annex 2).

(3) Members of the Board, who are or were involved in an arbitration administered by the VIAC in any capacity whatsoever, may not be present at, or participate in any way in deliberations or decisions pertaining to those proceedings. This shall not impair the existence of a quorum of the Board.

(4) The members of the Board shall perform their duties to the best of their knowledge and ability and in performing their duties they shall be independent and not be bound by any instructions. They have the duty to keep confidential all information acquired in the course of their duties.

(5) The Board may establish and amend its own Internal Rules (Annex 2).

 

INTERNATIONAL ADVISORY BOARD

Article 3


The International Advisory Board consists of international arbitration experts who may be invited by the Board. The International Advisory Board assists the Board in an advisory capacity.

 

SECRETARY GENERAL, DEPUTY SECRETARY GENERAL AND SECRETARIAT

Article 4


(1) Upon recommendation of the Board of the VIAC, the Secretary General and the Deputy Secretary General of the VIAC shall be appointed by the Extended Presiding Committee of the Austrian Federal Economic Chamber for a term of up to five years. The Secretary General and Deputy Secretary General may be appointed for consecutive terms. Upon expiration of the term, if no renewal of the appointment has been made, the Secretary General and the Deputy Secretary General shall remain in office until a new appointment has been made.

(2) The Secretariat manages the administrative matters of the VIAC under the direction of the Secretary General and the Deputy Secretary General except for matters which are reserved to the Board. If a Deputy Secretary General has been appointed, the Deputy Secretary General may render decisions that fall within the competence of the Secretary General if the Secretary General is unable to perform his duties, or with authorization by the Secretary General.

(3) Members of the Secretariat, who are or were involved in an arbitration administered by the VIAC in any capacity whatsoever, may not be present at, or participate in any way in deliberations or decisions pertaining to those proceedings.

(4) The Secretary General and the Deputy Secretary General shall perform their duties to the best of their knowledge and ability and shall not be bound by any instructions. They have the duty to keep confidential all information acquired in the course of their duties.

(5) If the Secretary General and the Deputy Secretary General become unable to exercise their duties, the Board members shall appoint from their number a member to perform the relevant duties. For as long as the appointee serves as Secretary General, the membership of the appointee in the Board shall be suspended.

 

LANGUAGES OF CORRESPONDENCE

Article 5


The correspondence of the parties with the Board and Secretariat shall be in German or English.

 

DEFINITIONS

Article 6


(1)
 In the Vienna Rules


1.1 party or parties refer to one or more claimants, respondents or one or more third parties joined to the arbitration in a Statement of Claim;

1.2 claimant refers to one or more claimants;

1.3 respondent refers to one or more respondents;

1.4 third party refers to one or more third parties, who are neither a claimant nor respondent in the pending arbitration and whose joinder to this arbitration has been requested;

1.5 arbitral tribunal refers to a sole arbitrator or a panel of three arbitrators;

1.6 arbitrator refers to one or more arbitrators;

1.7 co-arbitrator refers to any member of a panel of arbitrators except its chairperson;

1.8 award refers to any final, partial or interim award;

1.9 Secretary General also refers to the Deputy Secretary General to the extent the Deputy Secretary General renders decisions in the event the Secretary General is unable to perform his duties, or with authorization by the Secretary General.


(2) To the extent the terms used in the Vienna Rules refer to natural persons, the form chosen shall apply to all genders. In practice, the terms in these rules shall be used in a gender-specific manner.

(3) References to “Articles” without further specification relate to the relevant articles of the Vienna Rules.

 

COMMENCING THE ARBITRATION

STATEMENT OF CLAIM

Article 7

 
(1) The arbitral proceedings shall be initiated by submitting a Statement of Claim. The proceedings shall commence on the date of receipt of the Statement of Claim by the Secretariat of the VIAC or by an Austrian Regional Economic Chamber in hardcopy form or in electronic form (Article 12 paragraph 1); hereby, the proceedings become pending. The Secretariat informs the parties of the receipt of the Statement of Claim.

(2) The Statement of Claim shall contain the following information:


2.1 the full names, addresses, and other contact details of the parties;

2.2 a statement of the facts and a specific request for relief;

2.3 the monetary value of each individual claim at the time of submission of the Statement of Claim, if the relief requested is not exclusively for a specific sum of money;

2.4 particulars regarding the number of arbitrators in accordance with Article 17;

2.5 the nomination of an arbitrator if a panel of three arbitrators was agreed or requested, or a request that the arbitrator be appointed by the Board;

2.6 particulars regarding the arbitration agreement and its content.


(3) If the Statement of Claim does not comply with paragraph 2 of this Article, the Secretary General may request that the claimant remedy the defect within a time-period to be set by the Secretary General. If a copy of the Statement of Claim or of the exhibits is missing (Article 12 paragraph 1), the Secretary General may request that the claimant supplement the missing copies within a time-period to be set by the Secretary General. If the claimant complies with the order to remedy the defect within the set deadline, the Statement of Claim shall be deemed to have been submitted on the date on which it was first received. If the claimant does not comply with the order to remedy the defect within the set deadline, the Secretary General may declare the proceedings terminated (Article 34 paragraph 3). This shall not prevent the claimant from raising the same claims at a later time in another proceeding.

(4) The Secretary General shall serve the Statement of Claim on the respondent if no order to remedy pursuant to paragraph 3 of this Article was issued or if the claimant complied with such an order. The Secretary General may defer service of the Statement of Claim on the respondent until the claimant has complied with an order to supplement copies pursuant to paragraph 3 of this Article.

 

ANSWER TO THE STATEMENT OF CLAIM

Article 8


(1) With the service of the Statement of Claim, the Secretary General shall request the respondent to submit to the Secretariat an Answer to the Statement of Claim within a period of 30 days.

(2) The Answer to the Statement of Claim shall contain the following information:

2.1 the full name, address and other contact details of the respondent;

2.2 comments on the request for relief and the facts upon which the Statement of Claim is based, as well as the respondent’s specific request for relief;

2.3 particulars regarding the number of arbitrators in accordance with Article 17;

2.4 the nomination of an arbitrator if a panel of three arbitrators was agreed or requested, or a request that the arbitrator be appointed by the Board.

COUNTERCLAIM

Article 9


(1)
 Claims by the respondent against the claimant may be raised as Counterclaims in the same proceedings.

(2) Articles 7 and 10 apply to Counterclaims. The Secretariat shall forward Counterclaims to the arbitral tribunal after payment of the advance on costs.

(3) The arbitral tribunal may return the Counterclaim to the Secretariat to be addressed in separate proceedings if


3.1 the parties are not identical; or

3.2 a Counterclaim submitted after the Answer to the Statement of Claim would result in a substantial delay in the main proceedings.


(4) The arbitral tribunal shall give the claimant the opportunity to submit an Answer to an admitted Counterclaim. Article 8 applies to an Answer to the Counterclaim.

 

REGISTRATION FEE

Article 10


(1) The claimant shall pay the registration fee net of any charges in the amount stipulated in Annex 3. Similarly, in the case of joinder of a third party (Article 14), the requesting party shall pay a registration fee.

(2) If there are more than two parties to the arbitration, the registration fee shall be increased by 10 percent for each additional party, up to a maximum increase of 50 percent.

(3) The registration fee is non-refundable. The registration fee shall not be deducted from the paying party’s advance on costs.

(4) The Statement of Claim and any Request for Joinder of a third party shall be served on the other parties only after full payment of the registration fee. The Secretary General may grant a reasonable extension of the time period for payment of the registration fee. If payment is not effected by the deadline, the Secretary General may declare the proceedings terminated (Article 34 paragraph 3). This shall not prevent the claimant from raising the same claims at a later time in another proceeding.

(5) If Proceedings under the Vienna Mediation Rules are commenced before, during or after arbitral proceedings under the Vienna Rules between the same parties and concerning the same subject matter, no further registration fee will be charged in the subsequently commenced proceedings.

 

TRANSMISSION OF FILE 

Article 11

 
The Secretary General shall transmit the file to the arbitral tribunal only after:

- the Secretariat has received the Statement of Claim (Counterclaim) in accordance with the requirements of Article 7; and

- all members of the arbitral tribunal have been appointed; and

- the advance on costs pursuant to Article 42 has been paid in full.

 

SERVICE, TIME LIMITS AND DISPOSAL OF FILE

Article 12

 
(1) A Statement of Claim shall be submitted in electronic form and, including exhibits, in hardcopy form in the number of copies necessary so that each arbitrator, each party and the Secretariat receive a copy.

(2) After transmission of the file to the arbitral tribunal, all written communications including exhibits shall be sent to each party and each arbitrator in the manner stipulated by the arbitral tribunal. The Secretariat shall receive all written communications between the arbitral tribunal and the parties in electronic form.

(3) Service shall be deemed as validly effected if dispatched in hardcopy form by registered mail, letter with confirmation of receipt, courier service, or if in electronic form, or if by any other means of communication that ensures confirmation of transmission.

(4) Service shall be addressed to the address of the addressee for whom the written submission is intended, as last notified in a manner that ensures confirmation of transmission. Once a party has appointed a representative, service upon the representative’s address, as last notified in a manner that ensures confirmation of transmission, shall be deemed to constitute effective service upon the represented party.

(5) Service shall be deemed to have been made


5.1 on the day the written submission to be served was actually received by the addressee; or

5.2 on the day receipt can be presumed, if dispatched in accordance with paragraph 3 of this Article.


(6) If a Statement of Claim against multiple respondents cannot be served on all respondents, upon request of the claimant the arbitration shall proceed only against those respondents that received service of the Statement of Claim. The Statement of Claim against the remaining respondents shall be addressed in a separate proceeding.

(7) Time limits shall start to run on the day following the day of service of the respective written submission triggering the commencement of the time limit. If this day is an official holiday or a non-business day at the place of service, the time limit shall start to run on the next business day. Official holidays or non-business days falling during a time period shall not interrupt the continuation or extend the time limit. If the last day of the time limit is an official holiday or a non-business day at the place of service, the time limit shall end on the next business day.

(8) A time limit relating to any written submission is satisfied if the submission is dispatched in the manner stipulated in paragraph 3 of this Article on the last day of the time limit. Time limits may be extended where sufficient grounds for such extension are considered to exist.

(9) After termination of the proceedings (Article 34), the Secretariat may dispose of the entire file of a case, with the exception of decisions (Article 35).

 

REPRESENTATIVES

Article 13


In the proceedings before the arbitral tribunal, the parties may be represented or advised by persons of their choice. The Secretary General or the arbitral tribunal may at any time request evidence that the party representative has the authority to represent the party.

  

JOINDER OF THIRD PARTIES AND CONSOLIDATION  

JOINDER OF THIRD PARTIES

Article 14


(1) The joinder of a third party in an arbitration, as well as the manner of such joinder, shall be decided by the arbitral tribunal upon the request of a party or a third party after hearing all parties and the third party to be joined as well as after considering all relevant circumstances.

(2) The Request for Joinder shall contain the following information:


2.1 the full name, address, and other contact details of the third party;

2.2 the grounds upon which the Request for Joinder is based; and

2.3 the requested manner of joinder of the third party.

(3) If a Request for Joinder of a third party is made with a Statement of Claim,


3.1 it shall be submitted to the Secretariat. The provisions of Article 7 et seqq shall apply by analogy. The Secretary General shall transmit the Statement of Claim to the third party to be joined as well as to the other parties for their comments.

3.2 the third party may participate in the constitution of the arbitral tribunal pursuant to Article 18 if no arbitrator has yet been appointed.

3.3 the arbitral tribunal shall return the Statement of Claim with a Request for Joinder of a third party to the Secretariat to be treated in separate proceedings, if the arbitral tribunal refuses, in accordance with paragraph 1, to grant a Request for Joinder of a third party made with a Statement of Claim. In this case, the Board may revoke any confirmed nomination or appointment of arbitrators and order the new renewed constitution of the arbitral tribunal or arbitral tribunals in accordance with Article 17 et seqq, if the third party participated in the constitution of the arbitral tribunal in accordance with paragraph 3.2.

CONSOLIDATION

Article 15


(1) Upon a party’s request, two or more arbitral proceedings may be consolidated if


1.1 the parties agree to the consolidation; or

1.2 the same arbitrator(s) was/were nominated or appointed;


and the place of arbitration in all of the arbitration agreements on which the claims are based is the same.

(2) The Board shall decide on Requests for Consolidation after hearing the parties and the arbitrators already appointed. The Board shall consider all relevant circumstances in its decision, including the compatibility of the arbitration agreements and the respective stage of the arbitral proceedings.

 

ARBITRAL TRIBUNAL 

GENERAL PROVISIONS

Article 16

(1) The parties shall be free to designate the persons they wish to nominate as arbitrators. Any person with full legal capacity may act as arbitrator, provided the parties have not agreed upon any particular additional qualification requirements. The arbitrators have a contractual relationship with the parties and shall render their services to the parties.

(2) The arbitrators shall perform their mandate independently of the parties, and impartially and, to the best of their knowledge and ability, and they shall not be bound by any instruction. They have the duty to keep confidential all information acquired in the course of their duties.

(3) If a person intends to accept an appointment as an arbitrator, he shall sign and submit a declaration to the Secretary General before his appointment confirming his (i) impartiality and independence; (ii) availability; (iii) qualification; (iv) acceptance of office; and (v) submission to the Vienna Rules.

(4) An arbitrator shall disclose in writing all circumstances that could give rise to doubts as to his impartiality, independence or availability or that conflict with the agreement of the parties. The duty to immediately disclose such circumstances continues to apply throughout the arbitration.

(5) Members of the Board may be nominated as arbitrators by the parties or co-arbitrators, but shall not be appointed as arbitrators by the Board.

(6) The conduct of any or all arbitrators (Article 28 paragraph 1) may be taken into consideration by the General Secretary in determining the arbitrators’ fees (Article 44 paragraphs 2, 7 and 10).

 

CONSTITUTION OF THE ARBITRAL TRIBUNAL

Article 17


(1) The parties may agree whether the arbitral proceedings will be conducted by a sole arbitrator or a panel of three arbitrators. The parties may also agree on the manner of appointment of the arbitrators. In the absence of an agreement, paragraphs 2 to 6 of this Article shall apply.

(2) Absent agreement on the number of arbitrators, the Board shall determine whether the dispute will be decided by a sole arbitrator or by a panel of three arbitrators. In so doing, the Board shall take into consideration the complexity of the case, the amount in dispute, and the parties’ interest in an expeditious and cost-efficient decision.

(3) If the dispute is to be resolved by a sole arbitrator, the parties shall jointly nominate a sole arbitrator and indicate the arbitrator’s name, 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.

(4) If the dispute is to be resolved by a panel of arbitrators, each party shall nominate an arbitrator (the claimant in the Statement of Claim and the respondent in the Answer to the Statement of Claim). If a party fails to do so, the Secretary General shall request that party to submit the name, address and other contact details of its nominee within 30 days after receiving the request. If such nomination is not made within this time period, that arbitrator shall be appointed by the Board.

(5) If the dispute is to be resolved by a panel of arbitrators, the co-arbitrators shall jointly nominate a chairperson and indicate his name, 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 chairperson shall be appointed by the Board.

(6) The parties are bound by their nomination of arbitrator once the nominated arbitrator has been confirmed by the Secretary General or the Board (Article 19).

 

CONSTITUTION OF THE ARBITRAL TRIBUNAL IN MULTI-PARTY PROCEEDINGS

Article 18


(1) The constitution of the arbitral tribunal in multi-party proceedings shall be conducted in accordance with Article 17, with the following additional provisions:

(2) If the dispute is to be resolved by a panel of arbitrators, the side of claimant and the side of respondent shall each jointly nominate an arbitrator.

(3) Participation of a party in the joint nomination of an arbitrator shall not constitute consent to multi-party arbitration. If the admissibility of a multi-party arbitration is disputed, the arbitral tribunal shall decide thereon upon request after hearing all parties as well as after considering all relevant circumstances.

(4) If pursuant to paragraph 2 of this Article a joint arbitrator is not nominated within the set time period, the Board shall appoint the arbitrator for the defaulting party/parties. In exceptional cases, after granting the parties the opportunity to comment, the Board may revoke appointments already made and appoint new co-arbitrators or all arbitrators.

 

CONFIRMATION OF THE NOMINATION

Article 19


(1) After an arbitrator has been nominated, the Secretary General shall obtain the arbitrator’s declarations pursuant to Article 16 paragraph 3. The Secretary General shall forward a copy of these statements to the parties. The Secretary General shall confirm the nominated arbitrator, if no doubts exist as to the impartiality and independence of the arbitrator and his ability to carry out his mandate. The Secretary General shall inform the Board of such confirmation at the subsequent meeting of the Board.

(2) If deemed necessary by the Secretary General, the Board shall decide whether to confirm a nominated arbitrator.

(3) Upon confirmation the nominated arbitrator shall be deemed appointed.

(4) If the Secretary General or the Board refuses to confirm a nominated arbitrator, the Secretary General shall request the party/parties entitled to nominate the arbitrator, or the co-arbitrators to nominate a different arbitrator or chairperson within 30 days. Articles 16 to 18 shall apply by analogy. If the Secretary General or the Board refuses to confirm the newly nominated arbitrator, the right to nominate shall lapse and the Board shall appoint the arbitrator.

 

CHALLENGE OF ARBITRATORS

Article 20


(1) After his appointment, an arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to his impartiality or independence, or if he does not fulfil the qualifications agreed by the parties. A party may challenge the arbitrator whom it nominated, or in whose nomination it has participated, only for reasons of which the party became aware after the nomination or its participation in the nomination.

(2) A party’s challenge of an appointed arbitrator shall be submitted to the Secretariat within 15 days from the date the party making the challenge became aware of the grounds for the challenge. The challenge shall specify the grounds for the challenge and include corroborating materials to substantiate the challenge.

(3) If the challenged arbitrator does not resign, the Board shall rule on the challenge. Before the Board makes a decision, the Secretary General shall request comments from the challenged arbitrator and the other party/parties. The Board may also request comments from other persons. All comments shall be communicated to the parties and the arbitrators.

(4) The arbitral tribunal, including the challenged arbitrator, may continue the arbitration while the challenge is pending. The arbitral tribunal may not issue an award until after the Board has ruled on the challenge.

 

PREMATURE TERMINATION OF THE ARBITRATOR’S MANDATE

Article 21


(1) The mandate of an arbitrator terminates prematurely if


1.1 the parties so agree; or

1.2 the arbitrator resigns; or

1.3 the arbitrator dies; or

1.4 the arbitrator was successfully challenged; or

1.5 the arbitrator is removed from office by the Board.

(2) Either party may request that an arbitrator be removed from office if the arbitrator is prevented from performing his duties more than temporarily or otherwise fails to perform his duties, including also the duty to proceed without any undue delay. The party shall submit the request to the Secretariat. If it is apparent to the Board that any incapacity is not merely temporary, or that the arbitrator is not performing his duties, the Board may remove an arbitrator from office even without a party’s request. The Board shall decide on the removal after granting the parties and the affected arbitrator the opportunity to comment.

 

EFFECTS OF THE PREMATURE TERMINATION OF THE ARBITRATOR’S MANDATE

Article 22


(1) If an arbitrator’s mandate terminates prematurely (Article 21), the arbitrator shall be replaced. The appointment of a substitute arbitrator shall be made in accordance with the appointment procedure agreed by the parties. Absent any such agreement, the Secretary General shall request that


1.1 the parties, in the case of a sole arbitrator; or,

1.2 the remaining co-arbitrators, in the case of the chairperson of a tribunal; or,

1.3 the nominating party or the party on whose behalf the arbitrator was appointed, when the arbitrator was nominated by a party or was appointed on behalf of a party;


nominate a substitute arbitrator within 30 days – in the cases addressed by paragraphs 1.1 and 1.2 of this Article jointly – and indicate the nominee’s name, address and other contact details. Articles 16 to 18 apply by analogy. If such nomination is not made within this time period, the Board shall appoint the substitute arbitrator. If a substitute arbitrator is successfully challenged (Article 21 paragraph 1.4), the right to nominate a substitute arbitrator shall lapse and the Board shall appoint the substitute arbitrator.

(2) If an arbitrator’s mandate terminates prematurely pursuant to Article 21, the new arbitral tribunal shall determine, after requesting comments from the parties, whether and to what extent previous stages of the arbitration shall be repeated.

(3) The cost implications of the premature termination of the arbitrator’s mandate and of the appointment of a substitute arbitrator shall be based on Article 42 paragraph 5 and Article 44 paragraph 10.

 

CHALLENGE OF EXPERTS 

CHALLENGE OF EXPERTS

Article 23


Article 20 paragraphs 1 and 2 shall apply by analogy to the challenge of experts appointed by the arbitral tribunal. The arbitral tribunal shall decide the challenge.

 

JURISDICTION OF THE ARBITRAL TRIBUNAL 

JURISDICTION OF THE ARBITRAL TRIBUNAL

Article 24


(1) A plea that the arbitral tribunal does not have jurisdiction shall be raised no later than the first pleading on the merits. A party is not precluded from raising such an objection by the fact that it has nominated an arbitrator pursuant to Article 17 or has participated in the nomination of an arbitrator pursuant to Article 18. An objection that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to exceed the scope of its authority is raised during the arbitration. A later objection shall be barred in both cases; provided that, if the arbitral tribunal considers the delay to be sufficiently excused, it may admit a later objection.

(2) The arbitral tribunal shall decide on its own jurisdiction. The decision on jurisdiction may be made together with the decision on the merits or in a separate award. Where the arbitral tribunal declines jurisdiction, it shall, upon the request of one of the parties, decide on the parties’ costs obligations.

 

THE PROCEEDINGS BEFORE THE ARBITRAL TRIBUNAL 

PLACE OF ARBITRATION

Article 25


(1) The parties are free to agree on the place of arbitration. Absent party agreement, the place of arbitration shall be Vienna.

(2) The arbitral tribunal may deliberate or take procedural actions at any location it deems appropriate, without thereby resulting in a change of the place of arbitration.

 

LANGUAGE OF THE PROCEEDINGS

Article 26


Absent party agreement on the language or languages of the arbitration, immediately after transmission of the file the arbitral tribunal shall determine the language or languages, having due regard to all circumstances, including the language of the contract.

 

APPLICABLE LAW, AMIABLE COMPOSITEUR

Article 27


(1) The arbitral tribunal shall decide the dispute in accordance with the statutory provisions or rules of law agreed upon by the parties. Unless the parties have expressly agreed otherwise, any agreement as to a given national law or national legal system shall be construed as a direct reference to that national substantive law and not to the national conflict-of-laws rules.

(2) If the parties have not determined the applicable statutory provisions or rules of law, the arbitral tribunal shall apply the applicable statutory provisions or rules of law which it considers appropriate.

(3) The arbitral tribunal shall decide ex aequo et bono or as amiable compositeur only in cases where the parties have expressly authorised it to do so.

 

CONDUCT OF THE ARBITRATION

Article 28


(1) The arbitral tribunal shall conduct the arbitration in accordance with the Vienna Rules and the agreement of the parties in an efficient and cost-effective manner, but otherwise according to its own discretion. The arbitral tribunal shall treat the parties fairly. The parties shall be granted the right to be heard at every stage of the proceedings.

(2) Subject to advance notice, the arbitral tribunal may inter alia consider pleadings, the submission of evidence, and requests for the taking of evidence to be admissible only up to a certain point in time of the proceedings.

 

ESTABLISHING THE FACTS OF THE CASE

Article 29


(1) If the arbitral tribunal considers it necessary, it may on its own initiative collect evidence, question parties or witnesses, request the parties to submit evidence, and call experts. Article 43 shall apply if costs are incurred as a result of the taking of evidence and in particular, the appointment of experts.

(2) The arbitration shall proceed notwithstanding the failure of any party to participate.

 

ORAL HEARING

Article 30


(1) Unless the parties have agreed otherwise, the arbitral tribunal shall decide whether the proceedings should be conducted orally or in writing. If the parties have not excluded an oral hearing, upon any party’s request the arbitral tribunal shall hold such a hearing at an appropriate stage of the proceedings. The parties shall in any case have the opportunity to acknowledge and comment on the requests and pleadings of the other parties and on the result of the evidentiary proceedings.

(2) The date of the oral hearing shall be fixed by the sole arbitrator or the chairperson. Hearings shall not be open to the public. The sole arbitrator or the chairperson shall prepare and sign minutes of the hearing, which shall contain at a minimum a summary of the hearing and its results.

 

DUTY TO OBJECT

Article 31


If a party has knowledge of a violation by the arbitral tribunal of a provision of the Vienna Rules or other provisions applicable to the proceedings, it shall immediately file an objection with the arbitral tribunal, failing which the party shall be deemed to have waived its right to object.

 

CLOSURE OF THE PROCEEDINGS

Article 32


As soon as the arbitral tribunal forms the conviction that the parties have had an adequate opportunity to make submissions and to offer evidence, the arbitral tribunal shall declare the proceedings closed as to the matters to be decided in the award, and shall inform the Secretary General and the parties of the anticipated date by which the final award will be rendered. The arbitral tribunal may reopen the proceedings at any time.

 

INTERIM AND CONSERVATORY MEASURES /SECURITY FOR COSTS 

Article 33


(1) Unless the parties have agreed otherwise, as soon as the file has been transmitted to the arbitral tribunal (Article 11), the arbitral tribunal may, at the request of a party, grant interim or conservatory measures against another party as well as amend, suspend or revoke any such measures. The other parties shall be heard before the arbitral tribunal renders any decision on interim or conservatory measures. The arbitral tribunal may require any party to provide appropriate security in connection with such a measure. The parties shall comply with such orders, irrespective of whether they are enforceable before national courts.

(2) Any orders for interim or conservatory measures pursuant to this Article shall be in writing. In an arbitration with more than one arbitrator, the signature of the chairperson shall suffice. If the chairperson is hindered from acting, the signature of another arbitrator shall suffice, provided the arbitrator signing the order records the reasons for the absence of the chairperson’s signature.

(3) Unless the parties have agreed otherwise, orders for interim or conservatory measures shall state the reasons upon which they are based. The order shall identify the date on which it was issued and the place of arbitration.

(4) Orders for interim and conservatory measures shall be retained in the same manner as awards (Article 36 paragraph 5).

(5) The provisions of paragraphs 1 to 4 of this Article do not prevent the parties from applying to any competent national authority for interim or conservatory measures. A request to a national authority to order such measures or to enforce such measures already ordered by the arbitral tribunal shall not constitute an  infringement or waiver of the arbitration agreement and shall not affect the powers of the arbitral tribunal. The parties shall immediately inform the Secretariat and the arbitral tribunal of any such request as well as of all measures ordered by the national authority.

(6) The arbitral tribunal may, at the request of the respondent, order the claimant to provide security for costs, if the respondent shows cause that the recoverability of a potential claim for costs is, with a sufficient degree of probability, at risk. When deciding on a request for security for costs, the arbitral tribunal shall give all parties the opportunity to present their views.

(7) If a party fails to comply with an order by the arbitral tribunal for security for costs, the arbitral tribunal may, upon request, suspend in whole or in part, or terminate, the proceedings (Article 34 paragraph 2.4).

 

MEANS OF TERMINATION OF THE PROCEEDINGS

Article 34


The arbitral proceedings are terminated


(1) by the rendering of an award (Articles 36 and 37 paragraph 1); or

(2) by an order of the arbitral tribunal, if


2.1 the claimant withdraws its Statement of Claim, unless the respondent objects and a legitimate interest of the respondent in obtaining a final resolution of the dispute exists;

2.2 the parties agree to the termination of the arbitration and communicate this agreement to the arbitral tribunal and to the Secretary General;

2.3 the continuation of the proceedings has become impossible, in particular because the parties to the arbitration do not pursue the arbitration further despite a written order from the arbitral tribunal, which refers to the possibility of terminating the arbitration;

2.4 a party fails to comply with an order by the arbitral tribunal for security for costs (Article 33 paragraph 7); or


(3) by a declaration of the Secretary General

3.1 for failure to comply with an order to remedy (Article 7 paragraph 3) or a payment order (Article 10 paragraph 4 and Article 42 paragraphs 3 and 5);

3.2 in case of paragraphs 2.1 – 2.3, if the file has not yet been transmitted to the arbitral tribunal.

DECISIONS OF THE ARBITRAL TRIBUNAL

Article 35


(1) Every award and every other decision of the arbitral tribunal requires a majority ruling of its panel members. If the arbitrators cannot form a majority, the chairperson shall decide.

(2) The chairperson may decide questions of procedure alone if so authorized by the co-arbitrators.

 

ARBITRAL AWARD

Article 36


(1) Awards shall be in writing. Awards shall state the reasons on which they are based unless all parties have agreed in writing or in the oral hearing that the award may exclude the reasons.

(2) The award shall identify the date on which it was issued and the place of arbitration (Article 25).

(3) All original copies of an award shall be signed by all arbitrators. The signature of the majority of the arbitrators shall suffice if the award states that one of the arbitrators refused to sign or was prevented from signing by an impediment that could not be overcome within a reasonable period of time. If the award is a majority award and not a unanimous award, this shall be stated upon request of the dissenting arbitrator.  

(4) All original copies of the award shall be signed by the Secretary General and bear the VIAC stamp, which shall confirm that it is an award of the VIAC, rendered and signed by one or more arbitrators appointed under the Vienna Rules.

(5) The Secretary General shall serve the award on the parties in hardcopy form (Article 12 paragraph 3); Article 12 paragraphs 4 and 5 apply to the effectiveness and date of service. Upon request of a party, the wording of the award may additionally be sent to the parties in electronic form. The Secretariat shall retain one original copy of the award, and shall also retain the documentation of proof of service. (applicable to all proceedings that were commenced before 1 April 2020)

(5 - new)  The Secretary General shall serve the award on the parties in paper form. If it is not possible or feasible to serve the award in paper form within a reasonable time, the Secretariat may additionally send a copy of the award in electronic form. Article 12 paragraphs 3, 4 and 5 apply to the effectiveness and date of service. The Secretariat shall retain one original copy of the award, and shall also retain the documentation of proof of service. A copy of the award in paper form may be served at a later stage. (applicable to all proceedings that commence after 31 March 2020)

(6) Upon request of a party, the sole arbitrator or chairperson (or in case he is prevented from acting, another arbitrator) or, in case they are prevented from doing so, the Secretary General shall confirm that the award is final and binding on all original copies.

(7) By agreeing to the Vienna Rules, the parties undertake to comply with the terms of the award.

 

AWARD ON AGREED TERMS AND RECORDED SETTLEMENT 

Article 37


(1) Upon request of the parties, the arbitral tribunal may render an award (Article 36) on agreed terms reflecting the content of a settlement which they have reached.

(2) The parties may request that the content of a settlement which they have reached be recorded by the arbitral tribunal. In this case, the proceedings are terminated in accordance with Article 34 paragraph 2.2.

 

DECISION ON COSTS

Article 38


(1) When the proceedings are terminated, upon request of a party, the arbitral tribunal shall set forth, in the final award or by separate award, the costs of the arbitration as determined by the Secretary General pursuant to Article 44 paragraph 1.1 and determine the amount of the appropriate costs of the parties pursuant to Article 44 paragraph 1.2, as well as other additional expenses pursuant to Article 44 paragraph 1.3.

(2) The arbitral tribunal shall also establish who will bear the costs of the proceedings or the apportionment of these costs. Unless the parties have agreed otherwise, the arbitral tribunal shall decide on the allocation of costs according to its own discretion. The conduct of any or all parties as well as their representatives (Article 13), and in particular their contribution to the conduct of efficient and cost-effective proceedings, may be taken into consideration by the arbitral tribunal in its decision on costs according to this Article.

 

CORRECTION, CLARIFICATION AND SUPPLEMENTATION OF THE ARBITRAL AWARD

Article 39


(1) Within 30 days of receipt of the award, any party may file the following applications with the Secretariat for the arbitral tribunal:


1.1 to correct any computational, typographical, printing or similar errors in the award;

1.2 to clarify specific parts of the award;

1.3 to render an additional award on claims made in the arbitration but not resolved in the award.


(2) The arbitral tribunal shall decide on such an application. The other parties shall be heard before the arbitral tribunal makes its decision. The arbitral tribunal shall set a time limit for comments, which should not exceed 30 days. The Secretary General may determine an advance on costs to cover additional expenses and fees of the arbitral tribunal and administrative fees (Article 42 paragraph 5). The additional arbitrators’ fees and additional administrative fees are determined by the Secretary General according to his own discretion.

(3) Upon its own initiative, the arbitral tribunal may issue corrections pursuant to paragraph 1.1 or supplementations pursuant to paragraph 1.3 of this Article within 30 days of the date of the award.

(4) Article 36 applies to the supplementation of the award. Corrections and clarifications shall be issued in the form of an addendum and shall constitute an integral part of the arbitral award.

 

REMISSION TO THE ARBITRAL TRIBUNAL

Article 40


When a national court remits proceedings to the arbitral tribunal, the provisions of the Vienna Rules on the arbitral proceedings shall apply by analogy. The Secretary General and the Board may take any measures necessary to enable the arbitral tribunal to comply with the requirements of the remission. The Secretary General may determine an advance on costs to cover additional expenses and fees of the arbitral tribunal and administrative fees (Article 42 paragraph 5). The additional arbitrators’ fees and additional administrative fees are determined by the Secretary General according to his own discretion.

 

PUBLICATION OF AWARDS

Article 41


The Board and the Secretary General may publish anonymized summaries or extracts of awards in legal journals or the VIAC’s own publications, unless a party has objected to publication within 30 days of service of the award.

 

COSTS

ADVANCE ON COSTS

Article 42


(1) The Secretary General shall determine the VIAC‘s prospective administrative fees, the arbitrators’ fees and the expenses. The advance on costs shall be paid in equal shares by the parties prior to the transmission of the file to the arbitral tribunal within 30 days of service of the request for payment. In multi-party proceedings, one half of the advance shall be paid jointly by the claimants and one half jointly by the respondents. Any further reference in this Article to a party shall be understood to refer to all parties either on the side of claimant or of respondent.

(2) By agreeing to the Vienna Rules, the parties mutually undertake to bear the advance on costs in equal shares pursuant to paragraph 1 of this Article.

(3) If the advance on costs allocated to one party is not received or is not received in full within the time limit specified, the Secretary General shall inform the opposing party and request it to pay the outstanding amount within 30 days of service of the request. The obligation of the non-paying party to bear its share of the advance on costs pursuant to paragraph 2 of this Article shall not thereby be affected. If this share is not paid within the time limit specified, the Secretary General may declare the proceedings terminated (pursuant to Article 34 paragraph 3). This shall not prevent the parties from raising the same claims at a later time in another proceeding.

(4) If a party fails to fulfil its share of the payment obligations pursuant to paragraphs 1 and 2 of this Article, and if the other party pays the respective share pursuant to paragraph 3 of this Article, upon the paying party‘s request and to the extent it finds that it has jurisdiction over the dispute the arbitral tribunal may order the non-paying party, by an award or other appropriate form, to reimburse the paying party. This shall not affect the arbitral tribunal’s authority and obligation to determine the final allocation of costs pursuant to Article 38.

(5) If an additional advance on costs is necessary and determined accordingly by the Secretary General, the procedure as outlined in paragraphs 1 to 4 of this Article shall apply. Until payment of the additional advance on costs, in principle, the arbitral tribunal shall not address the claims that led to the increase or additional advance on costs. If a payment is not made within the deadline set by the Secretary General, the arbitral tribunal may suspend the arbitral proceedings in whole or in part, or the Secretary General may terminate the arbitral proceedings (Article 34 paragraph 3).

 

ADVANCE ON COSTS FOR ADDITIONAL PROCEDURAL COSTS

Article 43


(1) If the arbitral tribunal considers necessary certain procedural steps that would have cost implications, such as the appointment of experts, interpreters, or translators, a verbatim transcript of the proceedings, a site visit, or relocation of the hearing, then the arbitral tribunal shall notify the Secretary General and arrange for these prospective costs to be covered.

(2) The arbitral tribunal may undertake the procedural steps provided for in paragraph 1 of this Article only once the prospective costs are sufficiently covered.

(3) The arbitral tribunal shall decide which consequences for the proceedings shall arise, if any, from a failure to pay a required advance on costs pursuant to this Article.

(4) All orders related to the procedural steps mentioned in paragraph 1 of this Article shall be undertaken by the arbitral tribunal for and on the account of the parties.

 

COMPOSITION AND CALCULATION OF THE PROCEDURAL COSTS

Article 44


(1) The following shall comprise the procedural costs:


1.1 the administrative fees of the VIAC, the arbitrators’ fees including any applicable value-added tax, and the reasonable expenses (such as arbitrators‘ or tribunal secretary's travel and subsistence costs, costs for service of communications, rent, court reporter fees); as well as

1.2 the parties' costs, i.e. the reasonable expenses of the parties for their legal representation; and

1.3 other expenses related to the arbitration, in particular those listed in Article 43 paragraph 1.


(2) The Secretary General shall calculate the administrative fees and the arbitrators’ fees on the basis of the schedule of fees (Annex 3) according to the amount in dispute and determine these fees together with the expenses at the end of the proceedings (paragraph 1.1 of this Article). Prior to termination of the arbitral proceedings, the Secretary General may make payments on account to the arbitrators in consideration of the stage of the proceedings. The arbitral tribunal shall determine and fix the costs and other expenses outlined in paragraphs 1.2 and 1.3 of this Article in the award (Article 38).

(3) In fixing the amount in dispute, the Secretary General may deviate from the parties’ determination if the parties have made only a partial claim or if a party has clearly undervalued its claim or assigned no value to it.

(4) If more than two parties are involved in an arbitration, the amount of administrative fees and arbitrators’ fees listed in Annex 3 shall be increased by 10 percent for each additional party, up to a maximum increase of 50 percent.

(5) Administrative and arbitrators’ fees for Counterclaims and Requests for Joinder of third parties with a Statement of Claim shall be calculated by the Secretary General and paid separately by the parties.

(6) For claims raised by way of set-off against the principal claims, the administrative and arbitrators’ fees shall be calculated and paid separately to the extent the determination of these claims is expected to lead to substantial additional work.

(7) The arbitrators’ fees listed in Annex 3 apply to sole arbitrators. The total fee for a panel of arbitrators is two-and-a-half times the rate of a sole arbitrator. The Secretary General may increase the arbitrators’ fees according to his own discretion by a maximum total of 40 percent vis-à-vis the schedule of fees (Annex 3), in particular for especially complex cases or for especially efficient conduct of proceedings; conversely, the Secretary General may decrease the arbitrators’ fees by a maximum total of 40 percent, in particular for inefficient conduct of proceedings.

(8) The fees listed in Annex 3 comprise all partial and interim decisions such as awards on jurisdiction, partial awards, decisions on the challenge of experts, orders for conservatory or interim measures, other decisions including additional procedural steps in setting aside proceedings, and procedural orders.

(9) A reduction in the amount in dispute shall be taken into consideration in the calculation of the administrative and arbitrators’ fees only if the reduction was made before transmission of the file to the arbitral tribunal.

(10) If the proceedings or the arbitrator’s mandate are prematurely terminated, the Secretary General may reduce the arbitrators’ fees according to his own discretion in consideration of the stage of the proceedings at the time of termination. If arbitral proceedings under the Vienna Rules are commenced before, during or after proceedings under the Vienna Mediation Rules between the same parties and concerning the same subject matter, the Secretary General may apply this paragraph by analogy for the calculation of the arbitrators‘ fees.

(11)  If proceedings under the Vienna Mediation Rules are commenced before, during, or after arbitral proceedings under the Vienna Rules between the same parties and concerning the same subject matter, the administrative fees of the preceding proceedings shall be deducted from the administrative fees in the subsequently commenced proceedings.

(12) The fees listed in Annex 3 do not include value added tax, which may apply to the arbitrator’s fees. Upon accepting their mandate, those arbitrators whose fees are subject to value added tax shall inform the Secretary General of the prospective amount of value added tax.

 

MISCELLANEOUS PROVISIONS

EXPEDITED PROCEEDINGS

Article 45


(1) The supplementary rules on expedited proceedings apply if the parties have included them in their arbitration agreement or if the parties subsequently agree on their application. Such party agreement on the conduct of expedited proceedings shall occur no later than the submission of the Answer to the Statement of Claim.

(2) Unless the rules on expedited proceedings provide otherwise, the general provisions of the Vienna Rules shall apply with the following deviations:

(3) The time limit for payment of the advance on costs pursuant to Article 42 shall be reduced to 15 days.

(4) Counterclaims or set-off-claims are admissible only until the expiry of the time limit for submission of the Answer to the Statement of Claim.

(5) Expedited proceedings shall be conducted by a sole arbitrator, unless the parties have agreed on a panel of arbitrators.

(6) If the dispute is to be decided by a sole arbitrator, the parties shall jointly nominate a sole arbitrator within 15 days of receiving such a request from the Secretary General. If the parties fail to nominate the sole arbitrator within this time limit, the Board shall appoint the sole arbitrator.

(7) Where the dispute is to be decided by a panel of arbitrators, the claimant shall nominate an arbitrator in its Statement of Claim. The respondent shall nominate an arbitrator within 15 days of receipt of a request from the Secretary General. The arbitrators nominated by the parties shall nominate a chairperson within 15 days of receipt of a request from the Secretary General. If an arbitrator is not nominated within this time period, the Board shall appoint the arbitrator.

(8) The arbitral tribunal shall render a final award within six months of transmission of the file, unless the proceedings are prematurely terminated. If he deems it necessary, the Secretary General may extend the time limit pursuant to a reasoned request from the arbitral tribunal or on its own. Exceeding the time limit for the award will not render the arbitration agreement invalid or deprive the arbitral tribunal of its jurisdiction.

(9) The arbitration shall be administered in such a manner that the arbitral tribunal can render a final award within six months after the transmission of the file. Unless the arbitral tribunal determines otherwise, the following provisions shall apply:


9.1 After the submission of the Statement of Claim and the Answer to the Statement of Claim, the parties will exchange only one further written submission.

9.2 The parties shall make all factual arguments in their written submissions and all written evidence shall be attached to the written submissions.

9.3 To the extent requested by a party or deemed necessary by the arbitral tribunal, the arbitral tribunal shall hold a single oral hearing, in which all evidence will be taken and all legal issues addressed.

9.4 No written submissions shall be filed after the oral hearing.

DISCLAIMER

Article 46


The liability of arbitrators, the Secretary General, the Deputy Secretary General, the Board and its members, as well as the Austrian Federal Economic Chamber and its employees for any act or omission in relation to the arbitration is excluded to the extent legally permissible.

 

TRANSITIONAL PROVISIONS

Article 47


(1) This version of the Vienna Rules, which enters into force on 1 January 2018, shall apply to all proceedings that commence after 31 December 2017.

(2) The amendments to Article 36 para 5 enter into force on 1 April 2020.

 


PART II
RULES OF MEDIATION 

VIENNA MEDIATION RULES

COMPETENCE OF THE VIAC AND APPLICABLE VERSION OF THE VIENNA MEDIATION RULES

Article 1


(1)
 The Vienna International Arbitral Centre (hereinafter “VIAC”) is the Permanent International Arbitration Institution of the Austrian Federal Economic Chamber1. VIAC administers national and international arbitrations as well as proceedings pursuant to other alternative dispute resolution methods, if the parties have agreed upon


1.1
 the VIAC Rules of Arbitration (hereinafter “Vienna Rules”) or

1.2 the VIAC Rules of Mediation (hereinafter “Vienna Mediation Rules”) or

1.3 otherwise upon the competence of the VIAC.


(2) The Vienna Mediation Rules shall apply in the version in effect at the time of the commencement of the Proceedings if the parties, before or after the dispute has arisen, have agreed to submit their dispute to the Vienna Mediation Rules.

(3) The Vienna Mediation Rules may be amended by a written agreement of all parties. Following the appointment of the mediator, any amendment is also subject to the mediator's consent.

(4) The Board may refuse to administer Proceedings under the Vienna Mediation Rules if any agreed amendments are incompatible with the Vienna Mediation Rules.

(5) To the extent the Vienna Mediation Rules do not contain any rules on a specific issue and to the extent compatible with the Vienna Mediation Rules, the Vienna Rules shall apply by analogy, in particular their Articles 2, 3, 4, 5, 12 and 13.

 1Acc to Sec 139 paragraph 2 of the Federal Statute on the Economic Chambers 1998 (“Wirtschaftskammergesetz 1998”), Federal Law Gazette I No. 103/1998 as amended by Federal Law Gazette I No. 73/2017

 

DEFINITIONS

Article 2


(1) In the Vienna Mediation Rules


1.1 Proceedings refer to a mediation, any other alternative dispute resolution method chosen by the parties, or a combination of dispute resolution methods that are supported by a third-party neutral and conducted under the Vienna Mediation Rules;

1.2 third-party neutral refers to a mediator, a conciliator, another neutral or several such neutrals who support the parties in the resolution of their dispute; hereinafter, the term “mediator” is used as a substitute for all third-party neutrals;

1.3 party refers to one or more parties who agree or have agreed to submit their dispute to the Vienna Mediation Rules;

1.4  Secretary General also refers to the Deputy Secretary General to the extent the Deputy Secretary General renders decisions in the event the Secretary General is unable to perform his duties, or with authorization by the Secretary General.


(2) To the extent the terms used in the Vienna Mediation Rules refer to natural persons, the form chosen shall apply to all genders. In practice, the terms in these rules shall be used in a gender-specific manner.

(3) References to “Articles” without further specification relate to the relevant Articles of the Vienna Mediation Rules.

 

COMMENCING THE PROCEEDINGS

Article 3


(1) The Proceedings shall be initiated by submitting a request. The Proceedings shall commence on the date of receipt of the request by the Secretariat of the VIAC or by an Austrian Regional Economic Chamber in hardcopy form or in electronic form (Article 12 paragraph 1 Vienna Rules), in the event of an agreement of the parties to submit their dispute to the Vienna Mediation Rules. Absent such an agreement, the Proceedings shall commence on the date on which such agreement was subsequently concluded by the parties.

(2) The request should include the following:


2.1 the full names, addresses and other contact details of the parties;

2.2 a short description of the facts and the dispute;

2.3 the amount in dispute;

2.4 the full name, address and other contact details of the mediator nominated, or attributes that a mediator to be appointed should have;

2.5 particulars or proposals regarding an agreement of the parties to submit their dispute for resolution under the Vienna Mediation Rules, in particular as regards


i. the number of mediators;
ii. the language(s) to be used in the Proceedings.


(3) The Secretary General informs the parties of the receipt of the request and serves the request on the other party and invites comments within a set time limit to the extent that the request was not submitted jointly by all parties.

 

REGISTRATION FEE

Article 4


(1) If an agreement between the parties to submit their dispute to the Vienna Mediation Rules already exists, the registration fee shall be paid net of any charges in the amount stipulated in Annex 3. Absent such agreement, the registration fee shall be paid only upon subsequent conclusion of such agreement.

(2) If there are more than two parties to the Proceedings, the registration fee shall be increased by 10 percent for each additional party, up to a maximum increase of 50 percent.

(3) The registration fee is non-refundable. The registration fee shall not be deducted from the paying party's advance on costs.

(4) If arbitral proceedings under the Vienna Rules are commenced before, during, or after Proceedings under the Vienna Mediation Rules between the same parties and concerning the same subject matter, no further registration fee will be charged in the subsequently commenced proceedings.

(5) The Secretary General may extend the time limit for the payment of the registration fee as appropriate. If payment is not effected within the time limit set, the Secretary General may declare the Proceedings terminated.

 

PLACE OF THE SESSIONS

Article 5


Irrespective of any preceding or parallel arbitral proceedings, the mediator shall, in consultation with the parties and after giving due consideration to all the circumstances, determine the place of the mediation session(s). The mediator may determine a different place for each session if he deems that to be appropriate.

 

LANGUAGE OF THE PROCEEDINGS

Article 6


Immediately after transmission of the file (Article 9 paragraph 1), the mediator, after consultation with the parties and giving due consideration to all the circumstances, shall determine the language(s) of the Proceedings.

 

APPOINTMENT OF THE MEDIATOR

Article 7


(1) Absent an agreement of the parties regarding the identity of the mediator or the manner of appointment, the Secretary General shall set a time limit and invite the parties to jointly nominate a mediator and indicate his name, address and contact details.

(2) The Secretariat may assist the parties in the joint nomination of the mediator in particular by proposing one or more persons from which the parties may jointly nominate one or more mediators. If the parties fail to jointly nominate a mediator, the Board shall appoint the mediator. In so doing, the Board shall give due consideration to the parties' preferences regarding the attributes of the mediator.

(3) Prior to the appointment of the mediator by the Board or the confirmation of the nominated mediator, the mediator shall sign and submit to the Secretary General a declaration confirming his (i) impartiality and independence, (ii) availability, (iii) qualification, (iv) acceptance of office, and (v) submission to the Vienna Mediation Rules. The mediator shall disclose in writing all circumstances that could give rise to doubts as to his impartiality or independence or that conflict with the agreement of the parties. This duty of the mediator continues to apply throughout the Proceedings. The Secretary General shall forward a copy of these statements to the parties for comment.

(4) If there are no doubts as to the impartiality and independence of the mediator and his ability to duly carry out his mandate, the Board shall appoint the mediator or the Secretary General shall confirm the nominated mediator. If deemed necessary by the Secretary General, the Board shall decide whether to confirm a nominated mediator. Upon confirmation, the nominated mediator shall be deemed appointed.

(5) If the confirmation of a mediator is rejected or if the replacement of a mediator becomes necessary, paragraphs 1 to 4 shall apply mutatis mutandis.

 

ADVANCE ON COSTS AND COSTS

Article 8


(1) The Secretary General shall determine a preliminary advance on costs for the prospective administrative fees of VIAC, the down payment on the mediator‘s fees (plus any value-added tax) and the anticipated expenses (such as travel and subsistence costs of the mediator, delivery charges, rent, etc). This first part shall be paid by the parties prior to the transmission of the file to the mediator and within a time limit set by the Secretary General.

(2) Unless the parties have agreed otherwise in writing, the advance on costs shall be borne by the parties in equal shares. If the advance on costs allocated to one party is not received or is not received in full within the time limit specified, the Secretary General shall inform the other party. The other party is at liberty  to bear the outstanding share of the advance on costs. If this share is not paid within the time limit specified, the mediator may suspend the Proceedings in whole or in part, or the Secretary General may declare the Proceedings terminated (Article 11 paragraph 1.5).

(3) If an additional advance on costs is necessary and determined accordingly by the Secretary General, in particular to cover the mediator’s fees and anticipated expenses, paragraph 2 of this Article shall apply. 

(4) Upon termination of the Proceedings, the Secretary General shall calculate the administrative fees and the mediator‘s fees and fix these fees together with the expenses.

(5) The administrative fees shall be calculated on the basis of the schedule of fees (Annex 3) according to the amount in dispute. In fixing the amount in dispute, the Secretary General may deviate from the parties‘ determination if the parties clearly undervalued it or assigned no value to it. If more than two parties are involved in the Proceedings, the amount of administrative fees listed in Annex 3 shall be increased by 10 percent for each additional party, up to a maximum increase of 50 percent.

(6) The amount of the mediator‘s fees shall be calculated according to the actual time spent on the basis of hourly or daily fee rates. The fee rates shall be fixed by the Secretary General at the time of the mediator‘s appointment or confirmation following consultation with the mediator and the parties. The Secretary General shall consider the proportionality of the fees and take into account the complexity of the dispute. There shall be no separate fee arrangements between the parties and the mediator.

(7) Unless otherwise agreed in writing, the parties shall bear their own costs, including the costs of legal representation.

(8) If arbitral proceedings under the Vienna Rules are commenced before, during, or after Proceedings under the Vienna Mediation Rules between the same parties and concerning the same subject matter, the administrative fees of the preceding proceedings shall be deducted from the administrative fees in the subsequently commenced proceedings.

 

CONDUCT OF THE PROCEEDINGS

Article 9


(1) The Secretary General shall transmit the file to the mediator if


 a request in accordance with Article 3 has been submitted;
 the mediator has been appointed; and
 the preliminary advance on costs in accordance with Article 8 paragraph 1 has been paid in full.


(2) The mediator shall promptly discuss with the parties the manner in which the Proceedings shall be conducted. He shall assist the parties in finding an acceptable and satisfactory solution for their dispute. In conducting the Proceedings, the mediator shall be in control of the Proceedings while letting himself be guided by the wishes of the parties insofar as they are in agreement and in line with the purpose of the Proceedings.

(3) The Proceedings may be conducted in person or by virtual means. The parties are free to select their mediation team. The mediator may offer guidance in this respect. Each party shall personally participate in a session with the mediator, or be represented by a duly appointed and authorized person having the authority to settle the dispute.

(4) Throughout the Proceedings, the parties shall act in good faith, fairly and respectfully. Each party assumes the obligation to participate in at least one session with the mediator, unless the Proceedings are terminated prematurely in accordance with Article 11 paragraph 1.5.

(5) Sessions with the mediator are not public. Only the following individuals shall be permitted to attend:


 the mediator;
 the parties; and
 persons whose attendance was announced to the mediator and the other party in a timely manner before the respective session and who have signed a written confidentiality agreement in accordance with Article 12.


(6) If he considers it appropriate, the mediator may meet with a party in the absence of the other party (caucus). The mediator shall keep confidential the information given by one party in the absence of the other party, unless the party giving the information expressly waives such confidentiality vis-à-vis the other party and the mediator agrees to pass on such information.

 

PARALLEL PROCEEDINGS

Article 10


A party may commence or continue any legal, arbitral or other proceedings in respect of the same dispute, irrespective of whether Proceedings are being conducted under the Vienna Mediation Rules.  

 

TERMINATION OF THE PROCEEDINGS

Article 11


(1) The Proceedings shall be terminated by way of a written confirmation by the Secretary General to the parties and upon occurrence of the earliest of the following circumstances:


1.1 an agreement of the parties to settle the entire dispute;

1.2 the notification in writing by any party to the mediator or the Secretary General that it does not wish to continue the Proceedings, provided that at least one session with the mediator has taken place, or that no such session has taken place within two months of the mediator‘s appointment, or that the time frame agreed for the Proceedings has expired;

1.3 the notification in writing by the mediator to the parties that the Proceedings will, in his opinion, not resolve the dispute between them;

1.4 the notification in writing by the mediator to the parties that the Proceedings are terminated;

1.5 the notification in writing by the Secretary General regarding the failure


i. to appoint a mediator in accordance with Article 7 paragraphs 1 to 4;
ii. to comply with a payment order (Articles 4 and 8) in a timely manner.


(2) The Proceedings may also be terminated in part if one of the grounds for termination listed under paragraph 1 applies to only a part of the dispute.

(3) In the cases listed under paragraphs 1.1 to 1.4 and paragraph 2, the mediator shall immediately inform the Secretary General of the circumstance of the termination.

 

CONFIDENTIALITY, ADMISSIBILITY OF EVIDENCE AND SUBSEQUENT REPRESENTATION

Article 12


(1) The individuals listed under Article 9 paragraph 5 shall treat as confidential any information that has come to their attention in connection with the Proceedings and that would not have come to their attention had the Proceedings not taken place.

(2) Any written documents that were obtained during the Proceedings and that would otherwise not have been obtained shall not be used in subsequent legal, arbitral or other proceedings. Any statements, views, proposals and admissions made during the Proceedings as well as any party's willingness to settle the dispute amicably shall also remain confidential. Regarding any or all of the foregoing, the mediator shall not be called as a witness.

(3) The obligations under paragraphs 1 and 2 shall not apply if the law governing these Proceedings contains mandatory provisions to the contrary or if it is required for the implementation or the enforcement of an agreement for the termination of these Proceedings.

(4) The fact that the Proceedings are taking place, have taken place or will take place shall not be confidential.

(5) The mediator shall not act as attorney or represent the parties in any other capacity or otherwise advise the parties in legal, arbitral or other proceedings regarding the dispute that constitutes or constituted the subject matter of the Proceedings.

 

DISCLAIMER

Article 13


The liability of the mediator, the Secretary General, the Deputy Secretary General, the Board and its members, as well as the Austrian Federal Economic Chamber and its employees for any act or omission in relation to the Proceedings under the Vienna Mediation Rules is excluded to the extent legally permissible.

 

TRANSITIONAL PROVISION

Article 14


This version of the Vienna Mediation Rules, which enters into force on 1 January 2018, shall apply to all Proceedings that commence after 31 December 2017.

 


PART III
ANNEXES
TO THE RULES OF ARBITRATION AND THE RULES OF MEDIATION1 


1 The Annexes 1-4 are integral part of the Rules of Arbitration and the Rules of Mediation


ANNEX 1
MODEL CLAUSES

Arbitration Clause


All disputes or claims arising out of or in connection with this contract, including disputes relating to its validity, breach, termination or nullity, shall be finally settled under the Rules of Arbitration (Vienna Rules) of the Vienna International Arbitral Centre (VIAC) of the Austrian Federal Economic Chamber by one or three arbitrators appointed in accordance with the said Rules.

Optional supplementary agreements on:

(1) the number of arbitrators (one or three) (Article 17 Vienna Rules);

(2) the language(s) to be used in the arbitral proceedings (Article 26 Vienna Rules);

(3) the substantive law applicable to the contractual relationship, the substantive law applicable to the arbitration agreement (both Article 27 Vienna Rules), and the rules applicable to the proceedings (Article 28 Vienna Rules);

(4) the applicability of the provisions on expedited proceedings (Article 45 Vienna Rules);

(5) the scope of the arbitrators’ confidentiality (Article 16 paragraph 2) and its extension regarding parties, representatives and experts.

 

Mediation Clauses

Model Clause 1: Optional Mediation

Regarding all disputes or claims arising out of or in connection with this contract, including disputes relating to its validity, breach, termination or nullity, the parties agree to jointly consider Proceedings in accordance with the Mediation Rules (Vienna Mediation Rules) of the Vienna International Arbitral Centre (VIAC) of the Austrian Federal Economic Chamber.

Model Clause 2: Obligation to Refer Disputes to Mediation followed by Arbitration

All disputes or claims arising out of or in connection with this contract, including disputes relating to its validity, breach, termination or nullity, shall first be submitted to Proceedings in accordance with the Mediation Rules (Vienna Mediation Rules) of the Vienna International Arbitral Centre (VIAC) of the Austrian Federal Economic Chamber.

In the event that within a period of [60]1 days from commencing Proceedings under the Vienna Mediation Rules the dispute or claims are not resolved, they shall be finally settled under the Rules of Arbitration (Vienna Rules) of VIAC by one or three arbitrators appointed in accordance with the said Rules.2

1 or a different period of time agreed upon in writing by the parties
2 see the optional supplementary agreements for arbitration clauses


Model Clause 3: Obligation to Refer a Present Dispute to Mediation

The parties agree that the present dispute shall be submitted to Proceedings in accordance with the Mediation Rules (Vienna Mediation Rules) of the Vienna International Arbitral Centre (VIAC) of the Austrian Federal Economic Chamber. The Proceedings shall be initiated by submitting a joint request. The registration fee shall be borne by the parties in equal shares.

Optional supplementary agreements on:

(1) the number of mediators or other third party neutrals (e.g. one or two);

(2) the language(s) to be used in the Proceedings (Article 6 Vienna Mediation Rules);

(3) the substantive law applicable to the contractual relationship, the substantive law applicable to the mediation agreement, and the rules applicable to the Proceedings (Article 1 paragraph 3 Vienna Mediation Rules);

(4) the admissibility of parallel proceedings (Article 10 Vienna Mediation Rules);

(5) the interruption of the statute of limitations or waiver to invoke the statute of limitations for a specific period of time.

 


ANNEX 2
INTERNAL RULES OF THE BOARD


(1) The meeting of the Board are convened by the President and presided over by him or by a Vice President.

(2) The Board shall have a quorum if more than one third of its members are in attendance. Attendance may also be effectuated by participation via telephone or video conferencing as well as via internet.

(3) The Board shall decide by simple majority of the members present who are eligible to vote. If there is a tie vote, the presiding member shall have a prevailing vote.

(4) If the Vice Presidents are prevented from exercising their duties, the President’s duties shall be assumed by the most senior member based on duration of service as Board member. Otherwise the Vice President with the longest period of office as Board member shall perform the duties.

(5) Members of the Board who are or were involved in any capacity whatsoever in an arbitration administered by the VIAC shall not be allowed to be present or to participate in any way in discussions or decisions pertaining to those same proceedings. This shall not impair the existence of a quorum of the Board.

(6) Decisions by resolution by correspondence are permissible. In the latter case, the President shall submit a written proposal to the members and set a time limit for the casting of written votes. Articles 2 and 3 of this Annex shall apply by analogy. Each member has the right to request a meeting regarding the written proposal.

(7) The Board is not obliged to state the reasons on which its decisions are based.

 

ANNEX 3
SCHEDULE OF FEES

 
Registration Fees1

Amount in dispute in EUR

Rate in EUR

from

to

 

 

25,000

                                   500

25,001

75,000

                                1,000

over 75,000

                                1,500


Administrative Fees2

Amount in dispute in EUR

Rate in EUR

from

to

 

 

25,000

                500

25,001

75,000

             1,000

75,001

100,000

             1,500

100,001

200,000

             3,000 + 1.875 % of amt. over 100,000

200,001

500,000

             4,875 + 1.250 % of amt. over 200,000

500,001

1,000,000

             8,625 + 0.875 % of amt. over 500,000

1,000,001

2,000,000

           13,000 + 0.50 % of amt. over 1,000,000

2,000,001

5,000,000

           18,000 + 0.125 % of amt. over 2,000,000

over 5,000,000

 

           21,750 + 0.063 % of amt. over 5,000,000

           in total max. 75,000 (21,750 + 53,250)

 
Fees for sole arbitrators3

Amount in dispute in EUR

Rate in EUR

from

to

 

 

100,000

6 %, minimum fee: 3,000

100,001

200,000

6,000 + 3.00 % of amt. over 100,000

200,001

500,000

9,000 + 2.50 % of amt. over 200,000

500,001

1,000,000

16,500 + 2.00 % of amt. over 500,000

1,000,001

2,000,000

26,500 + 1.00 % of amt. over 1,000,000

2,000,001

5,000,000

36,500 + 0.60 % of amt. over 2,000,000

5,000,001

10,000,000

54,500 + 0.40 % of amt. over 5,000,000

10,000,001

20,000,000

74,500 + 0.20 % of amt. over 10,000,000

20,000,001

100,000,000

94,500 + 0.01 % of amt. over 20,000,000

over 100,000,000

174,500 + 0.01 % of amt. over 100,000,000

1 See Article 10 Vienna Rules; Article 4 Vienna Mediation Rules 
2 See Article 44 paragraphs 2 and 4 Vienna Rules; Article 8 paragraph 5 Vienna Mediation Rules
3 See Article 44 paragraphs 2, 4, 7 and 10 Vienna Rules in particular
 

 

ANNEX 4
VIAC AS APPOINTING AUTHORITY


If VIAC is requested to act as appointing authority, the applicant shall pay a non-refundable fee in the amount of EUR 2,000 for each request. A request will be processed only after full payment of this fee. 

 


Vienna International Arbitral Centre
of the Austrian Federal Economic Chamber (VIAC)
Wiedner Hauptstrasse 63, 1045 Vienna, Austria

T +43 (0)5 90 900 4398
F +43 (0)5 90 900 216
E This email address is being protected from spambots. You need JavaScript enabled to view it. 

W www.viac.eu

%MCEPASTEBIN%

 MODEL CLAUSE FOR VIAC RULES (VIENNA SEAT)*

 This arbitration clause is intended for use where:

  • The underlying agreement is a 2002 ISDA Master Agreement (see footnotes for suggested amendments for use with a 1992 ISDA Master Agreement)
  • The institutional rules are the VIAC Rules
  • The seat of arbitration is Vienna
  • The underlying agreement is governed by English law or New York law
  • The law governing the arbitration clause is Austrian law

Where not all of the above conditions are met, this clause may require adaptation.


The following clause is designed for use with a 2002 ISDA Master Agreement. Section 13 of the 1992 ISDA Master Agreement corresponds to Section 13 of the 2002 ISDA Master Agreement in those parts that are material to the amendments made by this model clause. However, Section 14 of the 1992 ISDA Master Agreement does not contain a definition of the term “Proceedings”; note, therefore, the alternative wording suggested for insertion in Part 5 of the Schedule where using the 1992 ISDA Master Agreement.
 

The following provisions should be included in Part 4 of the Schedule. The Governing Law clause provides for English or New York governing law (a choice of one or the other should be made), save that the arbitration clause is governed by Austrian law.[1] The next clause replaces the Jurisdiction clause (Section 13(b)) of the ISDA Master Agreement. In sub-clause (iii), include one of Options 1, 2 or 3. The following provisions amend the Process Agent and Waiver of Immunity clauses (Sections 13(c) and (d)) to reflect the choice of arbitration, rather than court jurisdiction.

  • Governing Law. This Agreement (except for Section 13(b) (Arbitration) which shall be governed by Austrian law) and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with [English law/New York law (excluding conflict of laws principles)].[2]


  • Section 13(b) shall be deleted in its entirety and replaced with the following:

“(b) Arbitration

(i) Any dispute, claim, difference or controversy arising out of, relating to or having any connection with this Agreement, including any dispute as to its existence, validity, interpretation, performance, breach or termination or the consequences of its nullity and any dispute relating to any non-contractual obligations arising out of or in connection with it (a “Dispute”), shall be referred to and finally resolved by arbitration.

(ii) The arbitration shall be conducted in accordance with the Rules of Arbitration (the “Rules”) of the Vienna International Arbitral Centre (the “VIAC”). Capitalized terms used in this Section which are not otherwise defined in this Agreement have the meaning given to them in the Rules.

(iii) [Option 1: The arbitral tribunal shall consist of one arbitrator, who shall be appointed in accordance with the Rules.[3]]

[Option 2: The arbitral tribunal shall consist of three arbitrators. The members of the arbitral tribunal shall be appointed in accordance with the Rules.[4]]

[Option 3: The arbitral tribunal shall consist of three arbitrators. The members of the arbitral tribunal shall be appointed in accordance with the Rules, save that the chairperson of the arbitral tribunal shall be nominated by the Board of the VIAC.[5]]

(iv) The seat or legal place of arbitration shall be Vienna, Austria.

(v)  The language used in the arbitral proceedings shall be English.[6]

 

  • Section 13(c) of the Agreement is hereby amended by deleting the word “Proceedings” in the first sentence of that Section and replacing it with the words “suit, action or proceedings before the Austrian courts relating to the arbitration clause set out in Section 13(b) above or any arbitration proceedings contemplated thereby or any arbitral award obtained pursuant to such arbitration proceedings”.[7]


  • Section 13(d) of the Agreement is hereby amended:

after the words “jurisdiction of any court” in the third line by adding the words “or arbitral tribunal”; after the word “judgment” in Sub-Sections (iv) and (v) in the fifth line by adding the words “or arbitral award”; and by deleting the words “Proceedings in the courts of any jurisdiction” in the sixth line and replacing them with “suit, action or proceedings relating to any Dispute in the courts of any jurisdiction or before any arbitral tribunal (“Proceedings”)”.

The following provisions should be included in Part 5 of the Schedule. These provisions make necessary amendments to other provisions of the ISDA Master Agreement to make them reflect the choice of arbitration.

(a)       Section 8(b) shall be amended so that each reference in it to “judgment or order” shall be changed to refer to “judgment, arbitral award or order” and the words “or arbitral tribunal” shall be added after the words “another court”.

(b)       Section 8(c) shall be amended by adding the words “or arbitral award” after the word “judgment”.

(c)       Section 9(h) shall be amended by adding the words “or arbitral award” after the words “before as well as after judgment” each time they appear.[8]

(d)       Section 14 of the Agreement shall be amended by:

(i)        adding the following definition of “Dispute”: “Dispute” has the meaning specified in Section 13(b)(i).”; and

(ii)       in the definition of “Proceedings”, deleting the words “Section 13(b)” and replacing them with the words “Section 13(d)”.[9]

 

 [*]  The clause was drafted in co-operation with the Austrian law firms Wolf Theiss and Graf&Pitkowitz and has been reviewed by the International Swaps and Derivatives Association (ISDA).

 [1]  Austrian arbitration law does not contain a specific provision concerning the law governing the arbitration agreement. In order to avoid any ambiguity, it is recommended to expressly agree on that law.

 [2]  Amend as necessary.  

 [3]  Pursuant to Article 17(1) and (2) of the Rules, the parties may agree whether the arbitral proceedings will be conducted by a sole arbitrator or a panel of three arbitrators. Absent agreement on the number of arbitrators, the Board of the VIAC shall determine whether the dispute will be decided by a sole arbitrator or by a panel of three arbitrators. Article 17(3) of the Rules provides that if the dispute is to be resolved by a sole arbitrator, the parties shall jointly nominate a sole arbitrator 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 of the VIAC.

 [4]  Article 17(4) of the Rules provides that if the dispute is to be resolved by a panel of arbitrators, each party shall nominate, in the Statement of Claim and the Answer to the Statement of Claim respectively, an arbitrator. If a party fails to do so (also after 30 days have passed since receiving a respective request by the Secretary General of the VIAC to make a nomination), that arbitrator shall be appointed by the Board of the VIAC. Article 17(5) of the Rules stipulates that the co-arbitrators shall jointly nominate a chairperson. If such nomination is not made within 30 days after the Secretary General has requested them to make a nomination, the chairperson shall be appointed by the Board of the VIAC.

 [5]  This provision operates to amend Article 17(5) of the Rules (which provides that the co-arbitrators shall jointly nominate a chairperson), This amendment is permissible pursuant to Article 17(1) of the Rules.

 [6]  Pursuant to Article 26 of the Rules, absent party agreement on the language or languages of the arbitration, immediately after transmission of the file the arbitral tribunal shall determine the language or languages, having due regard to all circumstances, including the language of the contract.

 [7]  Note that in the event it is necessary to seek interim measures from a court before an arbitral tribunal is appointed, it might be useful if a process agent has been appointed. The process agent should be an individual or an entity in Austria. However, a process agent is not necessary for the purposes of the arbitration proceedings themselves.

 [8]  If using the 1992 ISDA Master Agreement, use the following provision instead of (c): (c) Section 2(e) shall be amended by adding the words "or arbitral award" after the words "before as well as after judgment".

 [9]  If using the 1992 ISDA Master Agreement, use the following provision instead of (d)(ii): (d)(ii) adding the following definition of "Proceedings": ""Proceedings" has the meaning specified in Section 13(d)". 

 

 

 

 

  • Vanas-Metzler, Elisabeth/Kathan-Spath, Johanna „Gesellschaftsrechtliche Streitigkeiten im Schiedsverfahren – Schwerpunkt Mehrparteienverfahren“ in Adensamer, Nikolaus / Mitterecker, Johannes / Kerschbaum, Sonja [Hrsg.], Handbuch Gesellschaftsrecht, Wien, Verlag Österreich [2020 - in print]

  • Fremuth-Wolf, Alice, Auswirkungen der COVID-19-Krise auf VIAC-Schiedsverfahren, ecolex issue 5/2020, MANZ Verlag Wien (2020)

  • Fremuth-Wolf, Alice, Auswirkungen der COVID-19-Krise auf VIAC-Schiedsverfahren (Summary), MANZ Verlag Wien (2020)

  • Kartellrecht und Schiedsgerichtsbarkeit - Für einen professionellen Umgang mit kartellrechtlichen Regeln im Private Enforcement (a joint brochure published by WKO, BWB and bpv Hügel - in German - 2019)

  • Vanas-Metzler, Elisabeth / Freisehner, Silvia, Vienna International Arbitral Centre, in: Romanian Arbitration Journal Ausgabe Nr. 4/2019 - Objections to Confirmation and Challenges of Arbitrators under the VIAC Rules, Wolters Kluwer Romania (2019)

  • VIAC [Hrsg.], Handbook on the Vienna Rules and the Vienna Mediation Rules 2018 , Vienna, Verlag WKÖ Service GmbH (2019).
    The Handbook (english version) may be ordered directly at the webshop.

  • Fremuth-Wolf, Alice/Wong, Venus Valentina/An, Alice/Dobosz, Klaudia, VIAC Arbitration (Vienna Rules 2018): A Step-by-Step Guide, Thomson Reuters (Professional) UK Limited (2019)

  • VIAC [Hrsg.], Handbuch zu den Wiener Regeln und Wiener Mediationsregeln 2018, Wien, Verlag WKÖ Service GmbH (2019). The Handbook (german version) may be ordered directly at the webshop.

  • Fremuth-Wolf, Alice / Dobosz, Klaudia, Vienna International Arbitral Centre, in: Arbitration World International Series (6th edition)

    This chapter was first published by Thomson Reuters, trading as Sweet & Maxwell, 5 Canada Square, Canary Wharf, London, E14 5AQ, in Karyl Nairn QC and Jonathon Egerton-Peters (eds), Arbitration World, 6th edn (2018) as “Vienna International Arbitral Centre (VIAC)”, pp. 329–356 and is reproduced by agreement with the publishers.

  • Czernich/Deixler-Hübner/Schauer (Hrsg.), Handbuch Schiedsrecht (2018)

  • Melis, Werner -  "Arbitration in Austria", International Handbook on Commercial Arbitration - Suppl. 98, Wolters Kluwer (2018)

  • Torggler/Mohs/Schäfer/Wong (Hrsg.), Handbuch Schiedsgerichtsbarkeit (2017)

  • Kwon, Innhwa: "A New Era of International Arbitration in Korea and Austria",  Korean Arbitration Review (2017)

  • Zeiler (Hrsg.), Austrian Arbitration Law (2016) 

  • Hausmaninger, Christian in Fasching /Konecny [Hrsg.]: Kommentar zu den Zivilprozessgesetzen 4. Band / 2. Teilband, §§ 577 bis 618 ZPO, 3., völlig neu bearb. Aufl., Verlag Manz (2016)

  • Liebscher, Christoph / Oberhammer, Paul / Rechberger Walter H. [Hrsg.], Schiedsverfahrensrecht, Band II, Wien [u.a.] Verlag Österreich (2016)

  • Heider/Nueber/Schumacher/Siwy/Zeiler, Dispute Resolution in Austria: An Introduction (2015)

  • Heider, Manfred et. al., Dispute Resolution in Austria, Wolters Kluwer (2015)

  • Heider, Manfred / Fremuth Wolf, Alice, Vienna International Arbitral Centre (VIAC), in: Global Legal Insights – International Arbitration (2nd edition), published by Global Legal Group Ltd, London www.globallegalinsights.com
    Global Legal Insights - International Arbitration (Austria)

  • VIAC [Hrsg.], Selected Arbitral Awards, Volume 1, Vienna, Verlag WKÖ Service GmbH (2015).
    The Handbook may be ordered  directly at the webshop.

  • Rechberger, Walter H. [Hrsg.]: Kommentar zur ZPO, 4. Auflage, Wien [u.a.] Springer (2014)

  • Heider, Manfred: Festschrift für Rolf A. Schütze - "Die Ablehnung von Schiedsrichtern in Verfahren vor dem Internationalen Schiedsgericht der Wirtschaftskammer Österreich", Verlag C.H. Beck München (2014)

  • Zeiler, Gerold: Schiedsverfahren - §§ 577-618 idF des SchiedsRÄG 2013, 2. Auflage, NWV Verlag (2014)

  • VIAC [Hrsg.], Handbook Vienna Rules – A Practitioner’s Guide, Vienna, Verlag WKÖ Service GmbH (2014).
    The Handbook may be ordered directly at the webshop.

  • VIAC [Hrsg.], Handbuch Wiener Regeln – ein Praxisleitfaden, Wien, Verlag WKÖ Service GmbH (2013)
    The Handbook (german version) may be ordered directly at the webshop.

Reviews of VIAC's Handbook:

  • SchiedsVZ, 12. Jahrgang Heft 4, Juli/August 2014, S 199-200
  • ASA Bulletin, Volume 32, No. 2, 2014, S 436-438

  • Liebscher, Christoph / Oberhammer, Paul / Rechberger Walter H. [Hrsg.], Schiedsverfahrensrecht, Band I, Wien [u.a.] Springer (2011)

  • Stefan, Riegler / Koller, Christian in Loukas Mistelis / Laurence Shore / Hans Smit (eds): Austria - National Report - World Arbitration Reporter (WAR), Juris Publishing, 2nd ed. (2010)
     
  • Schwarz, Franz T. / Konrad, Christian W.: The Vienna Rules - A Commentary on International Arbitration in Austria, Alphen aan den Rijn [u.a.], Kluwer Law Int. (2009)

  • Austrian Yearbook on International Arbitration, Vienna, Verlag Manz (2007 - 2017)

  • Stefan Riegler / Alexander Petsche / Alice Fremuth-Wolf / Martin Platte & Christoph Liebscher: Arbitration Law of Austria: Practice and Procedure, Juris Publ., (2007)

  • Torggler, Hellwig [Hrsg.]: Praxishandbuch Schiedsgerichtsbarkeit, Verlag Nomos (2007)

  • Zeiler, Gerold / Steindl, Barbara: Arbitration in Austria - a basic primer, 2nd ed. (2007) NWV - Neuer Wiss. Verlag

  • Kloiber, Barbara / Rechberger, Walter / Oberhammer, Paul / Haller, Hartmut: Das neue Schiedsrecht: Schiedsrechts-Änderungsgesetz 2006, Ecolex Spezial (2006)

  • Liebscher, Christoph: The Austrian Arbitration Act 2006 - texts and notes [English, Russkij, Français, Deutsch], Alphen aan den Rijn, Kluwer Law Internat. (2006)

  • Power, Jenny: The Austrian Arbitration Act – A Practitioner’s Guide to Sections 577-618 of the Austrian Code of Civil Procedure, Manz Verlag (2006)

  • Rechberger, Walter H. / Melis, Werner: §§ 577 ff ZPO in Rechberger Walter H. [Hrsg.]: Kommentar zur ZPO, 3. Auflage, Wien [u.a.] Springer (2006)

  • Reiner, Andreas: Das neue österreichische Schiedsrecht – SchiedsRÄG 2006, Lexis Nexis Verlag ARD Orac (2006)

  • Rechberger, Walter [Hrsg.]: Entwurf eines neuen Schiedsverfahrensrechts mit Erläuterungen von Oberhammer, Paul, Veröffentlichungen des Ludwig-Boltzmann-Institutes für Rechtsvorsorge und Urkundenwesen XXVII Wien, Manz (2002) 

AUSTRIAN ARBITRATION ACT

(as amended by SchiedsRÄG 2013)

SEC 577-618 Austrian Code of Civil Procedure *)
in force as of 1 January 2014


*) Law of 1 August 1895 Austrian Code of Civil Procedure, RGBl. Nr. 113/1895
as amended by the 2013 Amendment to the Austrian Arbitration Act -
“SchiedsRÄG 2013”, BGBl. I Nr. 118/2013 in force as of 1 January 2014

 

Imprint

Publisher
International Arbitral Centre (VIAC) of the Austrian Federal Economic Chamber
Wiedner Hauptstrasse 63, 1045 Vienna, Austria

Translation
This translation was made by Stefan Riegler / Alice Fremuth-Wolf / Martin Platte (cf. Riegler/Petsche/Fremuth-Wolf/Platte and Liebscher, Arbitration Law of Austria: Practice and Procedure, Juris Publishing, Huntington, New York, 2007, Chapter 5) and was revised with respect to the amendments made in Sections 615-618.

Layout
WKO Inhouse GmbH | Media
Wiedner Hauptstrasse 120-124, 1050 Vienna, Austria


  

INDEX

AUSTRIAN CODE OF CIVIL PROCEDURE – FOURTH CHAPTER: ARBITRATION PROCEDURE

First Title: General Provisions

Sec 577 Scope of Application
Sec 578 Court Intervention
Sec 579 Duty to Object
Sec 580 Receipt of Written Communications

Second Title: Arbitration Agreement

Sec 581 Definition
Sec 582 Arbitrability
Sec 583 Form of Arbitration Agreement
Sec 584 Arbitration Agreement and Action before Court
Sec 585 Arbitration Agreement and Interim Measures by Court

Third Title: Constitution of the Arbitral Tribunal

Sec 586 Composition of the Arbitral Tribunal
Sec 587 Appointment of arbitrators
Sec 588 Grounds For Challenge
Sec 589 Challenge Procedure
Sec 590 Early Termination of an Arbitrator’s Mandate
Sec 591 Appointment of a Substitute Arbitrator

Fourth Title: Jurisdiction of the Arbitral Tribunal

Sec 592 Competence of the Arbitral Tribunal to Rule on Its Own Jurisdiction
Sec 593 Ordering of Interim or Protective Measures

Fifth Title: Conduct of the Arbitral Proceedings

Sec 594 General Provisions
Sec 595 Seat of the Arbitral Tribunal
Sec 596 Language of Proceedings
Sec 597 Statements of Claim and Defense
Sec 598 Oral Hearings and Written Proceedings
Sec 599 Proceedings and Taking of Evidence
Sec 600 Default of a Procedural Act
Sec 601 Expert Appointed by Arbitral Tribunal
Sec 602 Judicial Assistance

Sixth Title: Making of Award and Termination of Proceedings

Sec 603 Applicable Substantive Law
Sec 604 Decision Making by Panel of Arbitrators
Sec 605 Settlement
Sec 606 Arbitral Award
Sec 607 Effect of the Arbitral Award
Sec 608 Termination of Arbitral Proceedings
Sec 609 Decision on Costs
Sec 610 Correction, Explanation of the Award and Additional Award

Seventh Title: Recourse Against the Arbitral Award

Sec 611 Action for Setting Aside an Arbitral Award
Sec 612 Declaration of Existence or Non-Existence of an Arbitral Award
Sec 613 Consideration of Grounds of Setting Aside in Other Proceedings

Eighth Title: Recognition and Declaration of Enforceability of Foreign Arbitral Awards

Sec 614 Recognition and Declaration of Enforceability of Foreign Arbitral Awards  

Ninth Title: Court Proceedings

Sec 615 Jurisdiction
Sec 616 Proceedings  

Tenth Title: Special Provisions

Sec 617 Consumers
Sec 618 Labour Law Matters  


_____________________________________________________________

FIRST TITLE: GENERAL PROVISIONS


SCOPE OF APPLICATION

Section 577


(1) The provisions of this Chapter shall apply if the seat of the arbitral tribunal is within Austria.

(2) Sections 578, 580, 583, 584, 585, 593 paragraphs (3) to (6), sections 602, 612 and 614 shall also apply if the seat of the arbitral tribunal is not within Austria or has not yet been determined.


(3) As long as the seat of the arbitral tribunal has not yet been determined, the Austrian courts shall have jurisdiction for those judicial matters stipulated in the Third Title hereof if one of the parties has its seat, domicile or habitual residence within Austria.


(4) The provisions of this Chapter shall not be applicable to panels according to the Austrian Act on Associations and Societies (“Vereinsgesetz”) for the conciliation of disputes arising out of disputes within an association or society (“Verein”).


COURT INTERVENTION

Section 578


In matters governed by this Chapter, no court shall intervene except where so provided in this Chapter.


DUTY TO OBJECT

Section 579


If the arbitral tribunal has not complied with a procedural provision of this Chapter from which the parties may derogate, or with an agreed procedural requirement of the arbitral proceedings, a party who proceeds with the arbitral proceedings without stating its objection immediately after having become aware thereof, or within the provided time period, may not raise that objection later.


RECEIPT OF WRITTEN COMMUNICATIONS

Section 580


(1) Unless otherwise agreed by the parties, any written communication is deemed to have been received on the day upon which it is delivered personally to the addressee or to an authorized recipient or, if this was not possible, on the day upon which it is delivered to the seat, domicile or habitual residence of the recipient.


(2) Where the addressee has knowledge of the arbitral proceedings and where his or the authorized recipient’s whereabouts remain unknown despite reasonable inquiries, any written communication is deemed to have been received on the day upon which orderly delivery was demonstrably attempted at a place indicated by the addressee in the arbitration agreement or subsequently indicated to the other party or to the arbitral tribunal and which has not hitherto been revoked upon indication of a new address.


(3) Paragraphs (1) and (2) shall not apply to communications in court proceedings.


SECOND TITLE: ARBITRATION AGREEMENT


DEFINITION

Section 581


(1) An arbitration agreement is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. The arbitration agreement may be concluded in the form of a separate agreement or as a clause within a contract.


(2) The provisions of this Chapter shall apply accordingly to arbitral tribunals that are, in a legally valid manner, mandated by testamentary disposition or other legal transactions that are not based on agreements by the parties or through articles of association or incorporation.


ARBITRABILITY

Section 582


(1) Any claim involving an economic interest that lies within the jurisdiction of the courts of law can be subject of an arbitration agreement. An arbitration agreement concerning claims not involving an economic interest shall have legal effect to the extent that the parties are entitled to conclude a settlement on the subject-matter in dispute.


(2) Claims in family law matters as well as all claims based on contracts that are even only partly subject to the Tenancy Act (“Mietrechtsgesetz”) or to the Non-Profit Housing Act (“Wohnungsgemeinnützigkeitsgesetz”), including all disputes regarding the conclusion, existence, termination and legal characterization of such contracts and all claims concerning the condominium property may not be made subject of an arbitration agreement. Statutory provisions outside this Chapter by virtue of which certain disputes may not, or may only under certain conditions, be made subject to arbitral proceedings, remain unaffected.


FORM OF ARBITRATION AGREEMENT

Section 583


(1) The arbitration agreement must be contained either in a written document signed by the parties or in letters, telefax, e-mails or other means of transmitting messages exchanged between the parties, which provide a record of the agreement.


(2) The reference in a contract complying with the form requirements of paragraph (1) to a document containing an arbitration agreement constitutes an arbitration agreement, provided that the reference is such as to make that arbitration agreement part of the contract.


(3) E A defect in the form of the arbitration agreement is cured in the arbitral proceedings by entering into argument on the substance of the dispute, unless an objection is raised, at the latest, when entering into argument on the substance of the dispute.


ARBITRATION AGREEMENT AND ACTION BEFORE COURT

Section 584


(1) A court before which an action is brought in a matter which is the subject of an arbitration agreement shall reject the claim, unless the defendant makes submissions on the substance of the dispute or orally pleads before the court without making an according objection. This shall not apply if the court establishes that the arbitration agreement does not exist or is incapable of being performed. While such proceedings are pending before a court, arbitral proceedings may nevertheless be commenced or continued and an award may be made.


(2) If an arbitral tribunal denies its jurisdiction for the matter in dispute because an arbitration agreement relating to the matter does not exist, or the arbitration agreement is incapable of being performed, the court may not reject an action on this matter on the grounds that an arbitral tribunal has jurisdiction for the matter. The right of the claimant to bring an action under section 611 for setting aside the decision, with which the arbitral tribunal denied its jurisdiction, ceases when he brings an action in court.


(3) While arbitral proceedings are pending, no further action may be brought before a court or an arbitral tribunal concerning the asserted claim; an action brought because of the same claim shall be rejected. This shall not apply if an objection to the jurisdiction of the arbitral tribunal was raised with the arbitral tribunal, at the latest, when entering into argument on the substance of the dispute and a decision of the arbitral tribunal thereon cannot be obtained within a reasonable period of time.


(4) If an action is rejected by a court due to the jurisdiction of an arbitral tribunal, or by an arbitral tribunal due to the jurisdiction of a court or of another arbitral tribunal, or when an arbitral award is set aside in setting aside proceedings due to lack of jurisdiction of the arbitral tribunal, the proceedings are deemed to have been properly continued if the action is immediately brought before the court or arbitral tribunal.


(5) A party that invoked the existence of an arbitration agreement at an earlier stage in the proceedings may not, at a later stage, claim that such agreement does not exist unless the relevant circumstances have changed since.


ARBITRATION AGREEMENT AND INTERIM MEASURES BY COURT

Section 585


It is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, from a court an interim or protective measure and for a court to grant such measure.
 


THIRD TITLE: CONSTITUTION OF THE ARBITRAL TRIBUNAL


COMPOSITION OF THE ARBITRAL TRIBUNAL

Section 586


(1) The parties are free to agree on the number of arbitrators. If the parties have, however, agreed on an even number of arbitrators, then these shall appoint a further person as chairman.


(2) Unless otherwise agreed by the parties, the number of arbitrators shall be three.


APPIONTMENT OF ARBITRATORS

Section 587


(1) The parties are free to agree on the procedure for appointing the arbitrator or arbitrators.


(2) Failing such agreement on the appointment procedure, the following shall apply:


1. In arbitral proceedings with a sole arbitrator, if the parties are unable to agree on the arbitrator within four weeks of receipt of a request to do so from the other party, the arbitrator shall, upon request by either party, be appointed by the court.

2. In arbitral proceedings with three arbitrators, each party shall appoint one arbitrator. The two arbitrators thus appointed shall appoint the third arbitrator who shall act as chairman of the arbitral tribunal.

3. If more than three arbitrators have been provided for, each party shall appoint the same number of arbitrators. The arbitrators thus appointed shall appoint a further arbitrator who shall act as chairman of the arbitral tribunal.

4. If a party fails to appoint an arbitrator within four weeks of receipt of a written request to do so from the other party, or if the parties do not receive notification by the arbitrators regarding the arbitrator to be appointed by them within four weeks of their appointment, the arbitrator shall, upon request by either party, be appointed by the court.

5. A party is bound by its appointment of an arbitrator as soon as the other party has received written notice of the appointment.


(3) Where the parties have agreed on the appointment procedure and


1. a party fails to act as required under such procedure, or

2. the parties or the arbitrators are unable to reach an agreement in accordance with such procedure, or

3. a third party fails to perform any function entrusted to it under such procedure within three months of receipt of an according written notice,


either party may request from the court to make the necessary appointment, unless the agreed appointment procedure provides for other means for securing the appointment.


(4) The written request for the appointment of an arbitrator shall also state which claim is being asserted and on which arbitration agreement the party is relying.


(5) Where several parties that are under the obligation to jointly appoint one or more arbitrators have not been able to agree upon such appointment within four weeks of receipt of a written notice to do so, the arbitrator or the arbitrators shall, upon request by either party, be appointed by the court, unless the agreed appointment procedure provides otherwise.


(6) The arbitrator or the arbitrators shall also be appointed by the court upon request by either party if within four weeks of receipt of a written notice from one party to the other party his or their appointment cannot be made for reasons which are not regulated in the preceding paragraphs, or if the appointment procedure for securing an appointment does not result in an appointment within a reasonable period of time.


(7) If the appointment is made prior to the decision in first instance and a party provides evidence thereof, the request shall be dismissed.


(8) The court, in appointing an arbitrator, shall have due regard to any qualifications required of the arbitrator by the agreement of the parties and to such considerations as are likely to secure the appointment of an independent and impartial arbitrator.


(9) A decision by which an arbitrator is appointed shall not be subject to appeal.


GROUNDS FOR CHALLENGE

Section 588


(1) When a person intends to assume the office of an arbitrator, he shall disclose any circumstances likely to give rise to doubts as to his impartiality or independence, or which are in conflict with the agreement of the parties. An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall without delay disclose any such circumstances to the parties, unless they have already been informed of them by him.


(2) An arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to his impartiality or independence, or if he does not possess the qualifications agreed upon by the parties. A party may challenge an arbitrator appointed by it, or in whose appointment it has participated, only for reasons of which it becomes aware after the appointment has been made, or after its participation in the appointment.


CHALLENGE PROCEDURE

Section 589


(1) The parties are free to agree on a procedure for challenging an arbitrator, subject to the provisions of paragraph (3).


(2) Failing such agreement, a party who challenges an arbitrator shall, within four weeks after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstance referred to in section 588 paragraph (2), submit a written statement of the grounds of the challenge to the arbitral tribunal. Unless the challenged arbitrator resigns from office, or the other party agrees to the challenge, the arbitral tribunal, including the challenged arbitrator, shall decide on the challenge.


(3) If a challenge under a procedure agreed upon by the parties or under the procedure set forth in paragraph (2) is not successful, the challenging party may, within four weeks after having received the decision rejecting the challenge, request from the court to decide on the challenge. The court’s decision shall not be subject to appeal. While such request is pending, the arbitral tribunal, including the challenged arbitrator, may continue the arbitral proceedings and make an award.


EARLY TERMINATION OF AN ARBITRATOR’S MANDATE

Section 590


(1) The mandate of an arbitrator terminates when the parties agree so or when he resigns. Subject to the provisions of paragraph (2), the parties may agree on a procedure for the termination of the arbitrator’s mandate.


(2) Either party may request from the court to decide on the termination of the mandate when an arbitrator either becomes unable to perform his functions or fails to act within a reasonable time period and


1. the arbitrator does not resign,

2. the parties cannot agree on the termination of the mandate, or

3. the procedure agreed upon by the parties does not lead to the termination of the arbitrator’s mandate.

Such decision shall not be subject to appeal.


(3) If an arbitrator resigns in accordance with paragraph (1) or section 589 paragraph (2), or if a party agrees to the termination of the arbitrator’s mandate, this does not imply acceptance of the validity of any ground referred to in paragraph (2) or section 588 paragraph (2).


APPOINTMENT OF A SUBSTITUTE ARBITRATOR

Section 591


(1) Where an arbitrator’s mandate terminates early, a substitute arbitrator shall be appointed. Such appointment shall be made in accordance with the rules that were applicable to the appointment of the arbitrator who is being replaced.


(2) Unless otherwise agreed by the parties, the arbitral tribunal may continue the proceedings on the basis of the results of the proceedings up to that point, in particular the existing minutes of the hearings as well as any other records.


FOURTH TITLE: JURISDICTION OF THE ARBITRAL TRIBUNAL


COMPETENCE OF THE ARBITRAL TRIBUNAL TO RULE ON ITS OWN JURISDICTION

Section 592


(1) The arbitral tribunal shall rule on its own jurisdiction. The decision may be made together with the decision on the merits or by separate arbitral award.


(2) A plea that the arbitral tribunal does not have jurisdiction shall be raised no later than the first pleading on the substance of the dispute. A party is not precluded from raising such plea by the fact that it has appointed, or participated in the appointment of, an arbitrator. A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is made the subject of a request for relief. A later plea is barred in both cases; if the arbitral tribunal, however, considers the delay sufficiently excused, the plea may subsequently be raised.


(3) Even while an action for the setting aside of an arbitral award with which the arbitral tribunal accepted its jurisdiction is still pending, the arbitral tribunal may continue the arbitral proceedings and make an award.


ORDERING OF INTERIM OR PROTECTIVE MEASURES

Section 593


(1) Unless otherwise agreed by the parties, the arbitral tribunal may, upon request of a party and after hearing the other party, order against the other party such interim or protective measures it deems necessary in respect of the subject-matter in dispute if the enforcement of the claim were otherwise frustrated or significantly impeded, or there were a risk of irreparable harm. The arbitral tribunal may request any party to provide appropriate security in connection with such measure.


(2) Measures referred to in paragraph (1) shall be in writing; a signed exemplar of the order shall be served upon each party. In arbitral proceedings with more than one arbitrator the signature of the chairman or, if he is prevented from signing, the signature of another arbitrator shall suffice, provided that the chairman or another arbitrator records on the order the reason for any omitted signature. Section 606 paragraphs (2), (3), (5) and (6) shall apply accordingly.


(3) Upon request of a party the District Court (“Bezirksgericht”) in whose district the opponent of the party at risk has its seat, domicile or habitual residence within Austria at the time of the first filing of the request, otherwise the District Court (“Bezirksgericht”) in whose district the enforcement of the interim or protective measure shall be carried out, shall enforce such measure. Where the measure provides for a means of protection unknown to Austrian law, the court may, upon request and after hearing the other party, enforce such measure of protection under Austrian law which comes closest to the measure ordered by the arbitral tribunal. In this case the court may also, upon request, reformulate the measure ordered by the arbitral tribunal in order to safeguard the realization of its purpose.


(4) The court shall refuse to enforce a measure under paragraph (1) if


1. the seat of the arbitral tribunal is within Austria and the measure suffers from a defect which would constitute grounds for setting aside an arbitral award made in Austria pursuant to sections 611 paragraph (2), 617 paragraphs (6) and (7) or section 618;

2. the seat of the arbitral tribunal is not within Austria and the measure suffers from a defect which would constitute grounds for refusal of recognition or enforcement of a foreign arbitral award;

3. the enforcement of the measure would be incompatible with an Austrian court measure which was either requested or issued previously, or with a foreign court measure which was issued previously and must be recognized;

4. the measure provides for a means of protection unknown to Austrian law and no appropriate means of protection as provided by Austrian law has been requested.


(5) The court may hear the other party prior to ruling on the enforcement of the measure under paragraph (1). If the other party has not been heard prior to the ruling, it may file an objection against the granting of the enforcement (“Widerspruch”) within the meaning of section 397 Enforcement Act (“Exekutionsordnung”). In both cases the other party may only rely on grounds for refusing the enforcement as set out in paragraph (4). In these proceedings the court has no jurisdiction to rule on claims for damages pursuant to section 394 Enforcement Act (“Exekutionsordnung”).


(6) The court shall, upon request, set aside the enforcement if


1. the term of the measure as set by the arbitral tribunal has expired;

2. the arbitral tribunal has limited the scope of or set aside the measure;

3. one of the cases set out in section 399 paragraph (1) numbers 1 to 4 Enforcement Act (“Exekutionsordnung”) exists, unless such a circumstance was unsuccessfully raised with the arbitral tribunal and no obstacles to recognizing (paragraph 4) the decision of the arbitral tribunal exist in this regard;

4. security pursuant to paragraph (1) has been provided that the enforcement is superfluous.


FIFTH TITLE: CONDUCT OF THE ARBITRAL PROCEEDINGS


GENERAL PROVISIONS

Section 594


(1) Subject to the mandatory provisions of this Chapter, the parties are free to agree on the rules of procedure. In doing so they may also refer to arbitration rules. Failing such agreement, the arbitral tribunal shall proceed in accordance with the provisions of this Title, and in other respects in such manner as it considers appropriate.


(2) The parties shall be treated fairly. Each party shall be granted the right to be heard.


(3) The parties may be represented or advised by persons of their choosing. This right cannot be excluded or limited.


(4) An arbitrator who does not fulfil his obligation resulting from the acceptance of his appointment at all or in a timely manner, shall be liable to the parties for all damages caused by his wrongful refusal or delay.


SEAT OF THE ARBITRAL TRIBUNAL

Section 595


(1) The parties are free to agree on the seat of the arbitral tribunal. They may also leave the determination of the seat of the arbitral tribunal to an arbitral institution. Failing such agreement, the seat shall be determined by the arbitral tribunal having due regard to the circumstances of the case, including the convenience of such place for the parties.


(2) Notwithstanding the provisions of paragraph (1), the arbitral tribunal may, unless otherwise agreed by the parties, convene at any place it considers appropriate for conducting proceedings, especially for deliberation among its members, making decisions, conducting oral hearings and taking evidence.


LANGUAGE OF PROCEEDINGS

Section 596


The parties are free to agree on the language or languages to be used in the arbitral proceedings. Failing such agreement, the arbitral tribunal shall determine the language or languages to be used in the proceedings.


STATEMENTS OF CLAIM AND DEFENSE

Section 597


(1) Within the time period agreed by the parties or determined by the arbitral tribunal, the claimant shall state the relief and remedy sought and the facts supporting his claim and the respondent shall respond thereto. The parties may submit with their statements all documents they consider to be relevant, or may indicate the documents or other evidence they intend to submit.


(2) Unless otherwise agreed by the parties, either party may amend or supplement its claim or pleadings during the course of the arbitral proceedings, unless the arbitral tribunal considers it inappropriate to allow such amendment due to delay.


ORAL HEARINGS AND WRITTEN PROCEEDINGS

Section 598


Unless the parties have agreed otherwise, the arbitral tribunal shall decide whether to hold oral hearings or whether the proceedings shall be conducted in writing. Where the parties have not excluded an oral hearing, the arbitral tribunal shall hold such hearing at an appropriate stage of the proceedings if so requested by a party.


PROCEEDINGS AND TAKING OF EVIDENCE

Section 599


(1) The arbitral tribunal is authorised to rule upon the admissibility of the taking of evidence, to carry out such taking of evidence and to freely evaluate the result thereof.


(2) The parties shall be given sufficient advance notice of every hearing and of every meeting of the arbitral tribunal for the purposes of the taking of evidence.


(3) All written submissions, documents and other communications which are submitted to the arbitral tribunal by one party shall be communicated to the other party. Expert opinions and other evidence on which the arbitral tribunal may rely in its decision shall be communicated to both parties.


DEFAULT OF A PROCEDURAL ACT

Section 600


(1) Where the claimant fails to submit the statement of claim in accordance with section 597 paragraph (1), the arbitral tribunal shall terminate the proceedings.


(2) Where the respondent fails to respond in accordance with section 597 paragraph (1) within the agreed or stipulated time period, the arbitral tribunal shall, unless otherwise agreed by the parties, continue the proceedings without treating such failure in itself as an admission of the claimant’s allegations. The same shall apply where a party is in default with any other procedural act. The arbitral tribunal may continue the proceedings and may render a decision based on the evidence before it. Where, in the arbitral tribunal’s opinion, the default is sufficiently excused, the omitted procedural act may subsequently be carried out.


EXPERT APPOINTED BY ARBITRAL TRIBUNAL

Section 601


(1) Unless otherwise agreed by the parties, the arbitral tribunal may


1. appoint one or more experts to report on specific issues to be determined by the arbitral tribunal;

2. require the parties to provide the expert with any relevant information, or to provide with, or to provide access to, any relevant documents or objects for his inspection.


(2) Unless otherwise agreed by the parties, if a party so requests or if the arbitral tribunal considers it necessary, the expert shall, after submission of his report, attend an oral hearing. At this hearing the parties may put questions to him and may present their own expert witnesses in order to testify on the points at issue.


(3) Sections 588 and 589 paragraphs (1) and (2) shall apply accordingly to the expert appointed by the arbitral tribunal.


(4) Unless otherwise agreed by the parties, each party has the right to submit reports of its own experts. Paragraph (2) shall apply accordingly.


JUDICIAL ASSISTANCE

Section 602


The arbitral tribunal, arbitrators who have been authorised accordingly by the arbitral tribunal, or a party with the approval of the arbitral tribunal, may request from the court to conduct judicial acts for which the arbitral tribunal has no authority. The judicial assistance may also consist of the court requesting a foreign court or administrative authority to conduct such acts. Section 37 paragraphs (2) to (5) and sections 38, 39 and 40 Judicature Act (“Jurisdiktionsnorm”) apply accordingly, subject to the proviso that the arbitral tribunal and the parties to the arbitral proceedings shall have the right to appeal pursuant to section 40 Judicature Act (“Jurisdiktionsnorm”). The arbitral tribunal, or an arbitrator who has been authorised accordingly by the arbitral tribunal, and the parties may participate in the taking of evidence by the court and may put questions. Section 289 shall apply accordingly.


SIXTH TITLE: MAKING OF AWARD AND TERMINATION OF PROCEEDINGS


APPLICABLE SUBSTANTIVE LAW

Section 603


(1) The arbitral tribunal shall decide the dispute in accordance with such statutory provisions or rules of law as agreed upon by the parties. Any agreement as to the law or the legal system of a given state shall be construed, unless the parties have expressly agreed otherwise, as directly referring to the substantive law of that state and not to its conflict of laws rules.


(2) Failing any designation by the parties of the applicable statutory provisions or rules of law, the arbitral tribunal shall apply the statutory provisions it considers appropriate.


(3) The arbitral tribunal shall decide ex aequo et bono or as amiable compositeur only if the parties have expressly authorized it to do so.


DECISION MAKING BY PANEL OF ARBITRATORS

Section 604


Unless otherwise agreed by the parties, the following shall apply:


1. In arbitral proceedings with more than one arbitrator, any decision of the arbitral tribunal shall be made by a majority of all its members. Questions of procedure may be decided by the chairman alone, if so authorized by the parties or by all members of the arbitral tribunal.


2. Where one or more arbitrators do not participate in a vote without justified reason, the other arbitrators may decide without them. In this case, also, the necessary majority of votes shall be calculated by the total of all participating and not participating arbitrators. In the case where a vote is taken on an arbitral award, the parties shall be informed on the intention to proceed in this manner in advance. With regard to other decisions, the parties shall be informed of the failure to participate in the vote after such vote.


SETTLEMENT

Section 605


If, during arbitral proceedings, the parties settle the dispute and if the parties are capable of concluding a settlement on the subject-matter in dispute, they may request


1. the arbitral tribunal to record the settlement, provided that the contents of the settlement do not violate the fundamental values of the Austrian legal system (ordre public); it shall be sufficient if the record of the settlement is signed by the parties and the chairman;


2. the arbitral tribunal to record the settlement in the form of an arbitral award on agreed terms, provided that the contents of the settlement do not violate the fundamental values of the Austrian legal system (ordre public). Such award shall be made in accordance with section 606. It shall have the same effect as any other award on the merits.


ARBITRAL AWARD

Section 606


(1) The award shall be made in writing and shall be signed by the arbitrator or arbitrators. Unless otherwise agreed by the parties, in arbitral proceedings with more than one arbitrator, the signatures of the majority of all members of the arbitral tribunal shall suffice, provided that the chairman or another arbitrator records on the arbitral award the reason for any omitted signature.


(2) Unless the parties have agreed otherwise, the award shall state the reasons upon which it is based.


(3) The award shall state the date on which it was made and the seat of the arbitral tribunal determined in accordance with section 595 paragraph (1). The award shall be deemed to have been made on that day and at that place.


(4) An exemplar of the award signed by the arbitrators in accordance with paragraph (1) shall be delivered to each party.


(5) The award and the documentation regarding its service are joint documents of the parties and the arbitrators. The arbitral tribunal shall discuss with the parties a possible safekeeping of the award and the documentation regarding its service.


(6) The chairman or, in the case he is prevented from doing so, another arbitrator shall, upon request of a party, confirm the res judicata effect and the enforceability of the award on an exemplar of the award.


(7) The underlying arbitration agreement does not cease to be effective by the making of the award.


EFFECT OF THE ARBITRAL AWARD

Section 607


The award has, between the parties, the effect of a final and binding court judgment.


TERMINATION OF ARBITRAL PROCEEDINGS

Section 608


(1) The arbitral proceedings are terminated by the award on the merits, by an arbitral settlement, or by an order of the arbitral tribunal in accordance with paragraph (2).


(2) The arbitral tribunal shall terminate the arbitral proceedings when:


1. the claimant fails to submit his statement of claim in accordance with section 597 paragraph (1);

2. the claimant withdraws his statement of claim, unless the respondent objects thereto and the arbitral tribunal recognizes a legitimate interest of the respondent in obtaining final disposition of the dispute;

3. the parties agree on the termination of the proceedings and communicate this to the arbitral tribunal;

4. the continuation of the proceedings has become impossible for the arbitral tribunal, in particular where the parties hitherto acting in the proceedings fail to continue the proceedings despite written notification of the arbitral tribunal, in which it refers to the possibility of termination of proceedings.


(3) Subject to section 606 paragraphs (4) to (6), section 609 paragraph (5) and section 610, as well as to the obligation to set aside an interim or protective measure, the mandate of the arbitral tribunal terminates upon the termination of the arbitral proceedings.


DECISION ON COSTS

Section 609


(1) Where the arbitral proceedings are terminated, the arbitral tribunal shall decide upon the obligation to reimburse the costs of the proceedings, provided the parties have not agreed otherwise. The arbitral tribunal shall, in exercise of its discretion, take into account the circumstances of the case, in particular the outcome of the proceedings. The obligation to reimburse may include any and all reasonable costs appropriate for bringing the action or defense. In the case referred to in section 608 paragraph (2) number 3, such a decision shall only be made if a party requests such a decision together with communicating the agreement to terminate the proceedings.


(2) Upon request of the respondent, the arbitral tribunal may also decide upon the obligation of the claimant to reimburse the costs of the proceedings, if it has found that it lacks jurisdiction on the grounds that there is no arbitration agreement.


(3) Together with the decision upon the obligation to reimburse the costs of the proceedings, the arbitral tribunal shall, as far as this is already possible and the costs are not set off against each other, determine the amount of costs to be reimbursed.


(4) In any case, the decision upon the obligation to reimburse the costs of the proceedings and the determination of the amount shall be made in the form of an arbitral award under section 606.


(5) If the decision on the obligation to reimburse the costs of the proceedings or the amount to be reimbursed was not made, or was only possible to be made after the termination of the arbitral proceedings, such decision shall be made in a separate arbitral award.


CORRECTION, EXPLANATION OF THE AWARD AND ADDITIONAL AWARD

Section 610


(1) Within four weeks of receipt of the award, unless another time period has been agreed by the parties, each party may request the arbitral tribunal,


1. to correct in the award any errors in computation, any clerical or typographical errors or any errors of a similar nature;

2. if so agreed by the parties, to explain certain parts of the award;

3. to make an additional award as to claims asserted in the arbitral proceedings but not disposed of in the award.


(2) The request under paragraph (1) shall be delivered to the other party. Prior to making a decision upon such a request, the other party shall be heard.


(3) The arbitral tribunal shall decide upon the correction or explanation of the award within four weeks and upon an additional award within eight weeks.


(4) The arbitral tribunal may also correct the award in accordance with paragraph (1) number 1 on its own initiative within four weeks from the date of the award.


(5) Section 606 shall apply to the correction, explanation of the award or to an additional award. The explanation or correction shall form part of the arbitral award.


SEVENTH TITLE: RECOURSE AGAINST THE ARBITRAL AWARD


ACTION FOR SETTING ASIDE AN ARBITRAL AWARD

Section 611


(1) Recourse to a court against an arbitral award may be made only by means of an action for setting aside. This shall also apply to arbitral awards by which the arbitral tribunal has ruled on its own jurisdiction.


(2) An arbitral award shall be set aside if:


1. a valid arbitration agreement does not exist, or the arbitral tribunal has denied its jurisdiction despite the existence of a valid arbitration agreement, or a party was under an incapacity to conclude a valid arbitration agreement under the law governing its personal status;

2. a party was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was for other reasons unable to present its case;

3. the award deals with a dispute not covered by the arbitration agreement, or contains decisions on matters beyond the scope of the arbitration agreement or the plea of the parties for legal protection; if the default concerns only a part of the award that can be separated, only that part of the award shall be set aside;

4. the composition or constitution of the arbitral tribunal was not in accordance with a provision of this Chapter or with an admissible agreement of the parties;

5. the arbitral proceedings were conducted in a manner that conflicts with the fundamental values of the Austrian legal system (ordre public);

6. the requirements according to which a court judgment can be appealed by an action for revision under section 530 paragraph (1) numbers 1 to 5 have been met;

7. the subject-matter of the dispute is not arbitrable under Austrian law;

8. the arbitral award conflicts with the fundamental values of the Austrian legal system (ordre public).


(3) The grounds for setting aside stipulated in paragraph (2) numbers 7 and 8 shall also be considered ex officio.


(4) The action for setting aside shall be brought within three months. The time period shall begin on the day on which the claimant received the award or the additional award. A request made in accordance with section 610 paragraph (1) numbers 1 or 2 does not extend this time period. In the case of paragraph (2) number 6, the time period for the action for setting aside shall be determined in accordance with the provisions on the action for revision.


(5) The setting aside of an arbitral award does not affect the validity of the underlying arbitration agreement. Where an arbitral award on the same subject-matter has been finally set aside twice and if a further arbitral award regarding that subject-matter is to be set aside, the court shall, upon request of a party, concurrently declare the arbitration agreement to be invalid with respect to that subject-matter.


DECLARATION OF EXISTENCE OR NON-EXISTENCE OF AN ARBITRAL AWARD

Section 612


Where the requesting party has a legal interest therein, it may request a declaration on the existence or non-existence of an arbitral award.


CONSIDERATION OF GROUNDS OF SETTING ASIDE IN OTHER PROCEEDINGS

Section 613


Should a court or an administrative authority find in other proceedings, for instance in enforcement proceedings, that grounds for setting aside in accordance with section 611 paragraph (2) numbers 7 and 8 exist, then the arbitral award shall not be relevant in those proceedings.


EIGHTH TITLE: RECOGNITION AND DECLARATION OF ENFORCEABILITY OF FOREIGN ARBITRAL AWARDS


RECOGNITION AND DECLARATION OF ENFORCEABILITY OF FOREIGN ARBITRAL AWARDS

Section 614


(1) The recognition and declaration of enforceability of foreign arbitral awards shall be made in accordance with the provisions of the Enforcement Act (“Exekutionsordnung”), unless otherwise provided for in international law or in legal instruments of the European Union. The form requirements for the arbitration agreement shall be deemed to be fulfilled, if the arbitration agreement complies both, with the form requirements under section 583 and under the law applicable to the arbitration agreement.


(2) The production of the original or a certified copy of the arbitration agreement in accordance with article IV paragraph (1) (b) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards shall only be required upon demand by the court.


NINTH TITLE: COURT PROCEEDINGS


JURISDICTION

Section 615


For the action for setting aside an arbitral award and for the action for declaration of existence or non-existence of an arbitral award, as well as for proceedings under the Third Title, the Supreme Court (Oberster Gerichtshof) shall have jurisdiction.


PROCEEDINGS

Section 616


(1) The proceedings regarding the action for setting aside an arbitral award and the action for declaration of the existence or non-existence of an arbitral award shall be governed by the provisions of this Law on the proceedings before the Courts of First Instance. The proceedings in matters under the Third Title shall be governed by the general provisions of the Act on Non-Contentious Jurisdiction (Außerstreitgesetz).


(2) Upon request of a party the public may also be excluded where a legitimate interest in doing so can be shown.


TENTH TITLE: SPECIAL PROVISIONS


CONSUMERS

Section 617


(1) Arbitration agreements between an entrepreneur and a consumer may only be validly concluded for disputes that have already arisen.


(2) Arbitration agreements to which a consumer is a party must be contained in a document signed personally by him. This document must not contain any agreements other than those relating to the arbitral proceedings.


(3) In arbitration agreements between an entrepreneur and a consumer, the consumer shall, prior to concluding the arbitration agreement, receive written legal advice on the relevant differences between arbitral and court proceedings.


(4) In arbitration agreements between entrepreneurs and consumers, the seat of the arbitral tribunal must be stipulated. The arbitral tribunal may only convene at a different place for an oral hearing or for the taking of evidence, if the consumer has approved thereof, or if considerable difficulties hinder the taking of evidence at the seat of the arbitral tribunal.


(5) Where the arbitration agreement was concluded between an entrepreneur and a consumer and where, either at the time of concluding the arbitration agreement or at the time when the action has become pending, the consumer did not have his domicile, habitual residence or place of work in the country where the arbitral tribunal has its seat, the arbitration agreement shall only be binding if the consumer invokes it.


(6) An arbitral award shall also be set aside if, in arbitral proceedings in which a consumer is involved,


1. mandatory provisions of law were violated, the application of which could not have been waived by choice of law by the parties, even in a case with an international element, or

2. the prerequisites are met under which a court judgment may be appealed under section 530 paragraph (1) numbers 6 and 7 by means of an action for revision; in this case, the time period for the action for setting aside shall be determined in accordance with the provisions on the action for revision.


(7) Where the arbitral proceedings were conducted between an entrepreneur and a consumer, the arbitral award shall also be set aside if the consumer did not receive written legal advice as stipulated in paragraph (3).


(8) For an action for setting aside an arbitral award, and for an action for declaration of the existence or non-existence of an arbitral award, as well as for proceedings under the Third Title in arbitration proceedings to which a consumer is party, the Regional Court (Landesgericht) having jurisdiction in civil law matters that is specified in the arbitration agreement, or the jurisdiction of which was agreed in accordance with Section 104 Austrian Judicature Act (Jurisdiktionsnorm), or failing such specification or agreement, the Regional Court (Landesgericht) in whose district the arbitral tribunal has its seat, shall have jurisdiction in first instance, regardless of the amount in dispute. Where the seat of the arbitral tribunal has not yet been determined, or in case of Section 612, if it is not in Austria, the Commercial Court Vienna (Handelsgericht Wien) shall have jurisdiction.


(9) Where the dispute underlying the arbitral award is a commercial matter within the meaning of Section 51 Judicature Act (Jurisdiktionsnorm), the Regional Court (Landesgericht) shall decide in exercise of its jurisdiction in commercial matters, in Vienna the Commercial Court Vienna (Handelsgericht Wien).


(10) The proceedings regarding an action for setting aside an arbitral award and an action for a declaration of the existence or non-existence of an arbitral award shall be governed by the provisions of this Law. The proceedings in matters under the Third Title shall be governed by the general provisions of the Act on Non-Contentious Jurisdiction (Außerstreitgesetz).


(11) Upon request of a party the public may also be excluded where a legitimate interest in doing so can be shown.


LABOUR LAW MATTERS

Section 618


Section 617 paragraphs (2) to (8) and paragraphs (10) and (11) apply accordingly to arbitral proceedings in labour law matters in accordance with Section 50 paragraph (1) Labour and Social Courts Act (Arbeits- und Sozialgerichtsgesetz); instead of the Regional Court (Landesgericht) having jurisdiction in civil law matters, the Regional Court (Landesgericht) shall decide in its function as Labour and Social Court, and in Vienna the Labour and Social Court Vienna. The proceedings regarding an action for setting aside an arbitral award and an action for a declaration of the existence or non-existence of an arbitral award shall be governed by the provisions of the Labour and Social Courts Act (Arbeits- und Sozialgerichtsgesetz). The Supreme Court (Oberste Gerichtshof) shall decide as a senate composed of according to Sections 10 et seq. Labour and Social Courts Act.

 

 


International Arbitral Centre (VIAC)
of the Austrian Federal Economic Chamber
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T +43 (0)5 90 900 4398
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RULES OF ARBITRATION AND CONCILIATION

(Vienna Rules)

 

Adopted by the Enlarged Presiding Committee of the Austrian Federal Economic Chamber
on 3 May 2006, with effect from 1 July 2006

 

 

RULES OF ARBITRATION*

* Translation from the German original, which is the authentic text.

 

GENERAL PROVISIONS

The Institution

Article 1

  1. The International Arbitral Centre of the Austrian Federal Economic Chamber in Vienna (the Vienna International Arbitral Centre - “the Centre”) shall make arrangements for the settlement by arbitration of disputes in which not all contracting parties that concluded the arbitration agreement had their place of business or their normal residence in Austria at the time of conclusion of that agreement.
    The jurisdiction of the Centre can also be agreed by parties whose place of business or normal residence is in Austria for the settlement of disputes of an international character.
  2. If the parties have agreed to the jurisdiction of the Centre, these arbitration rules (“Vienna Rules”) shall thereby apply in the version valid at the time of commencement of the proceedings.
  3. If parties which had their place of business or normal residence in Austria at the time of conclusion of the arbitration agreement have agreed that their disputes should be finally settled by a sole arbitrator or an arbitral tribunal to be appointed according to the Vienna Rules, and if the dispute is not international in character, the Permanent Arbitral Tribunal of the Vienna Economic Chamber, or, if another venue in Austria has been agreed, of the regional economic chamber in whose territorial jurisdiction the agreed venue is situated, shall be competent to make arrangements for settlement by arbitration. The latter tribunal shall conduct the proceedings in accordance with the rules of arbitration for the Permanent Arbitral Tribunals of the regional economic chambers.

 

Article 2

Unless the parties have agreed otherwise

  1. the place of arbitration shall be Vienna
  2. the sole arbitrator (arbitral tribunal) may conduct procedural acts at any place where he deems appropriate.

The arbitral tribunal may in any case meet at any place to consult in any way. 


ORGANIZATION

 

The Board

Article 3

  1. The Board of the Centre shall have at least five members. They shall be appointed for a period of office of five years by the Enlarged Presiding Committee of the Austrian Federal Economic Chamber by recommendation of the President of the Centre and can be reappointed. If there is no new appointment by the time of the expiration of a period of office, the members of the Board shall remain in office until a new Board is appointed. If a member of the Board is permanently incapacitated during his period of office (for instance, by resignation or death), a substitute member can be appointed for the remainder of the period of office of the serving Board.
  2. The members of the Board shall elect one of their number to act as President for the duration of their term of office. Where the President is prevented, the member who is oldest by age shall take over his tasks.
  3. The meetings of the Board are convened by the President, and presided over by the President or in his absence, by the most senior member by age present who is eligible to vote. The Board can validly take decisions if more than half of its members are present. It shall take decisions by a simple majority of the members present who are eligible to vote (see paragraph 4). In the event of a tie in voting, the Chairman shall have a casting vote.
  4. Members of the Board who are parties to particular arbitration proceedings in any capacity whatsoever shall be excluded from decisions pertaining to those proceedings, however they are to be counted for the presence quorum.
  5. Decisions may be made by correspondence. In this case the President shall submit a written proposal to the members and shall set a time limit for voting by correspondence. Paragraph 3, sub-sections 3. and 4. shall apply accordingly. Each member has the right to request a meeting regarding the written proposal.
  6. The members of the Board must perform their duties to the best of their ability; they are independent and are not subject to any directives in that respect. They are bound to secrecy on all matters coming to their notice in the course of their duties.

 

International Advisory Board

Article 4

The International Advisory Board consists of international arbitration experts who may be invited by the respective Board of the Centre for the duration of its period of office. Its purpose is to discuss factual issues of immediate interest.

The Secretary General

Article 5

  1. The Secretary General of the Centre shall be appointed by the Enlarged Presiding Committee of the Austrian Federal Economic Chamber for a period of office of five years by recommendation of the Board of the Arbitral Centre; he can be reappointed. The third sentence of Article 3 paragraph 1, shall apply by analogy.
  2. The Secretary General shall direct the activities of the Secretariat and shall perform the administrative tasks of the Centre insofar as they are not reserved to the Board of the Centre.
  3. The Secretary General must perform his duties to the best of his ability and is not subject to any directives in that respect. He is bound to secrecy on all matters coming to his notice in the course of his duties.
  4. If the Secretary General is unable to perform his duties or if he is permanently incapacitated, a member of the Board of the Centre, appointed by that Board, shall perform the relevant functions until a Secretary General is appointed.

 

Languages of correspondence

Article 6

Correspondence by the Parties with the Board and the Secretary General shall be conducted in German or English.

 

Arbitrators

Article 7

  1. The parties shall be free to appoint the arbitrators. Any person having legal capacity - irrespective of nationality - may be an arbitrator, provided the parties have not agreed upon any special additional qualification requirements.
  2. The requirements for the appointment as arbitrator are:
    1. A written statement as to his impartiality and independence in accordance with paragraph 5. The Secretary General shall transmit to the parties a copy of the form in which the sole arbitrator (all members of the arbitral tribunal) has (have) confirmed his (its) impartiality and independence.
    2. A written statement to submit to these Rules of Arbitration including to the provisions on the costs of the proceedings.
  3. A member of the Board may act only as Chairman of an arbitral tribunal or sole arbitrator.
  4. The arbitrators must perform their duties in complete independence and impartiality, to the best of their ability, and are not subject to any directives in that respect. They are bound to secrecy in respect of all matters coming to their notice in the course of their duties.
  5. When a person is approached in connection with his possible appointment as arbitrator, he shall disclose any circumstances likely to give rise to doubts as to his impartiality or independence or that are in conflict with the agreement of the parties. An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall without delay disclose any such circumstances to the parties unless they have already been informed of them by him.

 

Liability

Article 8

Liability of the arbitrators, the Secretary General, the Board and its members and the Austrian Federal Economic Chamber and its employees for any act or omission in relation to arbitration proceedings, insofar as such exclusion may be admissible by law, shall be excluded.


ARBITRAL PROCEEDINGS

Commencement of the Proceedings

Article 9

  1. Arbitral proceedings are commenced when a statement of claims is filed with the Secretariat. The proceedings become pending on receipt of the statement of claims by the Secretariat.
  2. One copy of the statement of claims together with enclosures must be submitted for each Respondent, each arbitrator and the Secretariat.
  3. The statement of claims must include:
    1. The designation of the parties and their addresses;
    2. A specific statement of claims and the particulars and supporting documents on which the claims are based;
    3. The amount in dispute at the time of submission of the statement of claims, unless the claims are not related exclusively to a specific sum of money;
    4. Particulars regarding the number of arbitrators in accordance with Article 14;
    5. If a decision by three arbitrators is requested, the nomination of an arbitrator and the address of that person.
  4. A copy of the agreement specifying the jurisdiction of the Arbitral Centre must be attached to the statement of claims.
  5. If the statement of claims does not comply with the provisions of paragraph 3 of the present Article or if copies of documents or enclosures are missing, the Secretary General shall request the Claimant to remedy the defect or to submit the necessary documents or enclosures. The Claimant is to be informed that until the defects have been remedied, the claim shall not be processed.
  6. The Board can refuse to carry out proceedings if the parties have designated the International Arbitral Centre of the Austrian Federal Economic Chamber in the arbitration agreement but have made agreements that deviate from the Vienna Rules.

 

Memorandum in Reply

Article 10

  1. If the claim is not to be dealt with under Article 9 paragraphs 5 and 6, the Secretary General shall make service to the Respondent of the statement of claims and one copy each of the rules of arbitration and shall invite the Respondent to submit a memorandum in reply within a period of thirty days, in the number of copies required under Article 9 paragraph 2.
  2. The memorandum in reply must include:
    1. A reply to the pleadings in the statement of claims;
    2. Particulars regarding the number of arbitrators in accordance with Article 14;
    3. Indication of the name and address of an arbitrator, if a decision by an arbitral tribunal is requested or if a decision by three arbitrators has been agreed upon in the arbitration agreement.

 

Counter-claims

Article 11

  1. Claims by the Respondent against the Claimant that are based on an arbitration agreement which constitutes the jurisdiction of the International Arbitral Centre of the Austrian Federal Economic Chamber can be raised as counter-claims up to the time of closure of the evidentiary proceedings.
  2. Counter-claims must be submitted to the Secretariat of the Centre and must be forwarded by the latter to the sole arbitrator (arbitral tribunal) for further action after the deposit against costs has been paid.
  3. If the claim designated as a counter-claim is not based on an arbitration agreement which constitutes the jurisdiction of the International Arbitral Centre of the Austrian Federal Economic Chamber, if the parties are not identical, or if the submission of a counter-claim after transmission of the files to the sole arbitrator (arbitral tribunal) would lead to a substantial delay in the main proceedings, the sole arbitrator (arbitral tribunal) must return the claim to the Secretariat to be dealt with in separate proceedings.
  4. The sole arbitrator (arbitral tribunal) must give the Counter-Respondent to an admissible counter-claim the opportunity to submit a memorandum in reply in writing and must set a time-limit for that purpose.

 

Transmitting of the file to the sole arbitrator (arbitral tribunal)

Article 12

The Secretary General shall transmit the files to the sole arbitrator (arbitral tribunal) as soon as a statement of claims (counter-claim) has been received in due form, the sole arbitrator (all members of the arbitral tribunal) has (have) confirmed acceptance of the mandate and his (its) objectivity, using a form issued by the Centre (Article 7 paragraph 2), and the deposit for costs has been paid (Article 34). The proceedings before the sole arbitrator (arbitral tribunal) shall thereby commence.

 

Time-limits, Service and Communications

Article 13

  1. A time-limit shall be deemed to have been observed if the document is dispatched as provided under paragraph 2 of the present Article on the last day of the period set. Time-limits can be prolonged by the Secretary General on sufficient grounds; after the transmission of the files to the sole arbitrator (arbitral tribunal), the sole arbitrator (arbitral tribunal) shall be competent to prolong time-limits (except in the cases covered by Article 34 paragraphs 5 and 6).
  2. Communications shall be considered as having been validly served if they are forwarded by registered letter, courier service, telefax or by other means of communication that guarantee evidence of transmission to the address most recently notified in writing to the sole arbitrator (arbitral tribunal) by the addressee as the address for service, or if the document to be served has been demonstrably transmitted.
  3. As soon as a party has appointed a representative, service to the most recently indicated address of that representative shall be considered as having been made to the party represented.

 

Nomination and Appointment of Arbitrators

Article 14

  1. The parties can agree that their dispute is to be decided either by a sole arbitrator or by an arbitral tribunal that shall consist of three arbitrators.
  2. When no such agreement has been made and the parties do not agree on the number of arbitrators, the Board shall determine whether the dispute is to be decided by a sole arbitrator or by an arbitral tribunal. In that context, the Board shall take into consideration in particular the difficulty of the case, the magnitude of the amount in dispute and the interest of the parties in a rapid and cost-effective decision.
  3. The parties shall be notified of the decision of the Board pursuant to paragraph 2 of the present Article; in the event that proceedings before a sole arbitrator are decided upon, the parties shall be requested to agree on a sole arbitrator and to indicate that person’s name and address within thirty days after service of the request. If no such indication is made within that period, the sole arbitrator shall be appointed by the Board.
  4. If the dispute is to be decided by an arbitral tribunal, the party that has not yet nominated an arbitrator shall be requested to indicate the name and address of an arbitrator within thirty days after service of the request. If the party has not appointed an arbitrator within that time-limit, the arbitrator shall be appointed by the Board.
  5. If the dispute is to be decided by an arbitral tribunal, the arbitrators nominated by the parties or appointed by the Board shall be requested to agree on a Chairman and to indicate his name and address within thirty days after service of the request. If no such indication is made within that period, the Chairman shall be appointed by the Board.
  6. The parties are bound by their nomination of arbitrators as soon as the identity of the arbitrator nominated has been made known to the other party.

Multiparty Proceedings

Article 15

  1. A claim against two or more Respondents shall be admissible only if the Centre has jurisdiction for all of the Respondents, and, in the case of proceedings before an arbitral tribunal, if all Claimants have nominated the same arbitrator, and:
    1. If the applicable law positively provides that the claim is to be directed against several persons; or
    2. If all Respondents are by the applicable law in legal accord or are bound by the same facts or are joint and severally bound; or
    3. If the admissibility of multiparty proceedings has been agreed upon; or
    4. If all Respondents submit to multiparty proceedings and, in the case of proceedings before an arbitral tribunal, all Respondents nominate the same arbitrator; or
    5. If one or more of the Respondents on whom the claim was served fails or fail to provide the particulars mentioned in Article 10 paragraph 2, b) and c) within the thirty-day time-limit (Article 10 paragraph 1).
  2. Where a claim against a number of Respondents cannot be served on all Respondents, the arbitral proceedings shall, upon application of the Claimant (the Claimants), be continued against those Respondents on whom the claim was served. The claim against those Respondents to which the claim could not be served shall be subject to separate proceedings.
  3. If multiparty proceedings are admissible, the Respondents must agree among themselves whether they wish to have the dispute decided by one arbitrator or by three arbitrators, and, if a decision by three arbitrators is desired, must jointly nominate an arbitrator.
  4. In the case covered by paragraph 3 of the present Article, if there is no agreement among the Respondents concerning the number of arbitrators, the Respondents shall be requested by the Secretary General to provide evidence of such agreement within thirty days after service of the request.
  5. If no evidence of agreement on the number of arbitrators is presented within the period mentioned in paragraph 4 of the present article, the Board shall determine whether the dispute is to be decided by one arbitrator or by an arbitral tribunal.
  6. If the Respondents have agreed that the dispute is to be decided by an arbitral tribunal, but without nominating an arbitrator, they shall be requested by the Secretary General to indicate the name and address of an arbitrator within thirty days after service of the request.
  7. If no arbitrator is jointly nominated within the period mentioned in paragraph 6 of the present Article and if the dispute is to be decided by an arbitral tribunal, the Board shall appoint the arbitrator for the defaulting Respondents.
  8. In cases other than those mentioned in paragraph 1 of the present Article, the consolidation of two or more disputes shall be admissible only if the same arbitrators have been appointed in all the disputes that are to be consolidated and if all parties and the sole arbitrator (arbitral tribunal) agree.
  9. The decision whether multiparty proceedings, as per paragraph 1 of this Article, are admissible, shall be taken by the sole arbitrator (the arbitral tribunal) upon application of one of the Respondents. If the admissibility of multiparty proceedings is denied, the arbitral proceedings return to the stage they were in for the Respondents before the sole arbitrator (the arbitral tribunal) was appointed. 

 

Challenge of Arbitrators

Article 16

  1. An arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to his impartiality or independence, or that are in conflict with the agreement of the parties. A party may challenge an arbitrator appointed by him, or in whose appointment he participated, only for reasons of which he becomes aware after the participation in the appointment or after the appointment has been made.
  2. If a party challenges an arbitrator, it must without delay inform the Secretary General thereof, stating the grounds for the challenge.
  3. Should the challenged arbitrator not withdraw from his office, the Board shall decide upon the challenge on the basis of the particulars in the challenging motion and the evidence attached thereto. Before the Board makes its decision, the Secretary General must obtain the comments of the arbitrator challenged and of the other parties. The Board can also request comments from other persons.
  4. An arbitrator challenged may continue the proceedings, notwithstanding the challenging motion. However, an award may not be rendered until after the final and binding decision of the Board.

 

Early Termination of the Mandate of Arbitrators

Article 17

  1. The mandate of an arbitrator terminates when
    1. the parties agree on the termination,
    2. the arbitrator withdraws from office,
    3. a challenging motion is granted,
    4. the arbitrator is removed from his office by the Board.
  2. Any party may request the termination of the mandate of an arbitrator if the latter’s incapacitation is not merely temporary, if he otherwise fails to perform his duties or unduly delays the proceedings. The request must be submitted to the Secretariat. The Board shall decide upon the request after hearing the arbitrator in question. If it is clear that incapacitation is not merely temporary, the Board may terminate the arbitrator’s mandate even without a request from a party.

 

Consequences of Challenge or Early Termination of Mandate

Article 18

  1. If the challenge of an arbitrator has been allowed, if his mandate has been terminated, if he has resigned his mandate or has died, then,
    1. If that arbitrator is a sole arbitrator, the parties – or,
    2. If that arbitrator is the Chairman, the remaining arbitrators – or
    3. If that arbitrator has been nominated by a party or has been appointed for a party, the party that nominated him or for which he was appointed
    shall be requested to nominate a new arbitrator within thirty days – by mutual consent in the cases covered by subparagraphs a) and b) of the present paragraph – and to indicate his name and address. If no such indication is received within that period, the new arbitrator shall be appointed by the Board. If a new arbitrator nominated has also been successfully challenged, the right to nominate a new arbitrator shall lapse and the new arbitrator shall be appointed by the Board.
  2. If the challenge of an arbitrator has been allowed, if his mandate has been terminated, if he has resigned his mandate or has died, the new sole arbitrator (newly constituted arbitral tribunal) shall determine, after obtaining the comments of the parties, whether and, if so, to what extent, previous procedural stages are to be repeated.

 

Jurisdiction of the Arbitral Tribunal

Article 19

  1. A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the first pleading in the matter. A party is not precluded from raising such a plea by the fact that he has appointed, or participated in the appointment of an arbitrator. A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. In both cases a later plea shall not be permitted; if the arbitral tribunal however considers the delay justified, the plea can be admitted
  2. The sole arbitrator (arbitral tribunal) shall rule on its own jurisdiction. The ruling can be made together with the ruling on the case or by separate arbitral award.

 

Conduct of the Proceedings

Article 20

  1. In the context of the Vienna Rules and the agreements between the parties, the sole arbitrator (arbitral tribunal) may conduct the arbitration proceedings at his (its) absolute discretion; the principle of equal treatment of the parties shall apply, the right to be heard being ensured at every stage of the proceedings. However, subject to advance notice, the sole arbitrator (arbitral tribunal) is entitled to declare that pleadings and the presentation of documentary evidence shall be admissible only up to a certain stage of the proceedings.
  2. Immediately after transmission of the files to the sole arbitrator (arbitral tribunal), the latter shall determine the language or languages of the proceedings, taking into consideration all circumstances, in particular, the language of the contract. In such matters, he (it) is bound by any agreement between the parties. The sole arbitrator (arbitral tribunal) can order that a translation be submitted of all documents that are not drafted in that language (those languages).
  3. The proceedings may be oral or only in writing. Oral hearings shall take place at the request of one party or if the sole arbitrator (arbitral tribunal) to whom (which) the case has been referred considers it necessary. In any case, the parties must be given the opportunity to take note of, and comment on, the motions and pleadings of the other parties and the result of the evidentiary proceedings.
  4. The date of oral hearings shall be fixed by the sole arbitrator or the Chairman of the arbitral tribunal. Hearings shall be private. A record of at least the results of the hearings shall be made, which the sole arbitrator or the Chairman of the arbitral tribunal shall sign.
  5. If the sole arbitrator (arbitral tribunal) considers it necessary, he (it) may on his (its) own initiative collect evidence, and in particular may question parties or witnesses, may request the parties to submit documents and visual evidence and may call in experts. If costs are incurred through the evidentiary proceedings and in particular through the appointment of experts, the procedure under Article 35 shall be followed.
  6. If one party does not take part in the proceedings, the case must be heard with the other party alone.
  7. If a violation by the sole arbitrator (arbitral tribunal) of a provision of these arbitration rules or of other provisions applicable to the proceedings comes to the notice of a party, that party must immediately enter an objection otherwise the party will be barred from entering an objection against that defect.
  8. The sole arbitrator (arbitral tribunal) must ask the parties whether they have any further proof to offer, witnesses to be heard or submissions to make. As soon as the sole arbitrator (arbitral tribunal) is convinced that the parties have had an adequate opportunity for such purposes, the sole arbitrator (arbitral tribunal) must declare the proceedings closed.

 

Challenge of Experts

Article 21

 

Article 16 shall apply accordingly to the challenging of experts appointed by the sole arbitrator (arbitral tribunal). However, the sole arbitrator (arbitral tribunal) shall decide on the challenge.

 

Interim Measures of Protection

Article 22

  1. Unless otherwise agreed by the parties, the sole arbitrator (arbitral tribunal) may, at the request of a party order any party, after hearing such party, to take such interim measure of protection as the sole arbitrator (arbitral tribunal) may consider necessary in respect of the subject matter of the dispute, as otherwise the enforcement of the claim would be frustrated or considerably impeded or there is a danger of irreparable harm. The sole arbitrator (arbitral tribunal) may require any party to provide appropriate security in connection with such measure. The parties are obliged to comply with such orders, whether or not they are enforceable by State courts.
  2. Measures referred to in paragraph (1) are to be ordered in writing and a signed copy is to be served on each party. In arbitral proceedings with more than one arbitrator the signature of the presiding arbitrator or, if he is prevented, the signature of another arbitrator shall suffice, provided that the presiding arbitrator or another arbitrator records on the order the reason preventing the signature.
  3. Unless the parties have agreed otherwise, the measures are to be substantiated. The measure must include the date on when it was ordered and the place of arbitration. The measure shall be deemed to have been ordered on that date and at that place.
  4. The measures and the records on the serving are joint documents of the parties and the sole arbitrator (arbitral tribunal).  The sole arbitrator (arbitral tribunal) shall discuss with the parties the possibility of depositing the measure and the records on the serving.
  5. The sole arbitrator (the presiding arbitrator) or, if he is prevented, another arbitrator, shall upon the motion of a party, confirm the unappealability and enforceability of the measure on a copy of the measure.
  6. This provision does not prevent the parties from applying to any competent State organ for interim measures of protection. Such an application to a State organ for ordering such measures or for the enforcement of measures ordered by the sole arbitrator (arbitral tribunal) shall not constitute an infringement or waiver of the arbitration agreement and shall not affect the powers of the sole arbitrator (arbitral tribunal). The Secretariat and the sole arbitrator (arbitral tribunal) must be immediately informed of any such application as well as of all measures ordered by the State organ.

 

Authorized Agents

Article 23

The parties shall have the right to be represented or advised by persons of their choice in the proceedings before the sole arbitrator (arbitral tribunal).

 

Applicable Law, Equity

Article 24

  1. The sole arbitrator (arbitral tribunal) shall decide the dispute in accordance with such legislation or rules of law as are chosen by the parties as applicable. Any choice of law or legal system of a given state shall be construed, unless otherwise expressed by the parties, as directly referring to the substantive law of that state and not to its conflict-of-law rules.
  2. Failing any designation of the legislation or rules of law by the parties, the sole arbitrator (arbitral tribunal) shall apply the legislation considered by him (it) as appropriate.
  3. The sole arbitrator (arbitral tribunal) may decide on equity only if the parties have expressly authorized him (it) to do so.

           

Termination

Article 25

The proceedings are terminated by

  1. the rendering of an award,
  2. the conclusion of a settlement,
  3. an order of the sole arbitrator (arbitral tribunal) where

aa) the claimant withdraws his claim, unless the respondent objects thereto and the sole arbitrator (arbitral tribunal) recognizes a legitimate interest on his part in obtaining a final settlement of the dispute;
bb) the parties agree on the termination of the proceedings and communicate this to the sole arbitrator (arbitral tribunal);
cc) the sole arbitrator (arbitral tribunal) finds that the continuation of the proceedings has become impossible, in particular when the parties to the proceedings do not continue the arbitral proceedings despite written notification from the sole arbitrator (arbitral tribunal), in which it refers to the possibility of terminating the proceedings.

 

Decision Making of the Arbitral Tribunal

Article 26

  1. Any award or any other decision of the arbitral tribunal shall be made by a majority of all its members. If no majority of votes is obtained, the presiding arbitrator shall decide alone.
  2. Questions of procedure may be decided by the presiding arbitrator alone if so authorized by the arbitral tribunal, with reservation to possible amendments by the arbitral tribunal.

The Award

Article 27

  1. Awards shall be drawn up in writing. The grounds upon which the award is based must be stated, unless all parties, either in the arbitration agreement or in the oral proceedings, have agreed that no grounds are to be stated.
  2. The award shall state the date on which it was made and the place of arbitration (Article 2).
  3. All copies of awards must be signed by the arbitrators. The signatures of the majority of the arbitrators shall suffice if the award contains a statement that one arbitrator refuses to sign or that his signature is prevented by an obstacle which cannot be overcome within a reasonable period of time. If the award is made by a majority decision, mention thereof shall be made in the award at the request of the arbitrator who is in a minority.
  4. Awards are confirmed on all copies as awards of the Centre by the signature of the Secretary General and the stamp of the Centre. By this it is confirmed that the award is an award of the International Arbitral Centre of the Austrian Federal Economic Chamber and that it was made and signed by (an) arbitrator(s) chosen or appointed in accordance with these Rules of Arbitration.
  5. The award shall be served on the parties by the Secretary General. Awards become effective as against the parties on service of the copies. One copy of the award and the records on the serving shall be deposited with the Secretariat of the Centre.
  6. The sole arbitrator (Chairman of the arbitral tribunal, or, if he is prevented, another arbitrator) shall confirm on all copies at the request of a party the finality and enforceability of the award.
  7. Partial and interim awards may be issued.
  8. By their agreement to the Vienna Rules, the parties undertake to implement the award.

 

Settlement

Article 28

The Parties can request that a record is drawn up on a settlement they have concluded or that an award (on agreed terms) be made thereof.

 

Correction and Interpretation of Award; Additional Award

Article 29

  1. Each party may within 30 days of receipt of the award file with the Secretariat the following applications to the sole arbitrator (arbitral tribunal):
    1. to correct in the award any errors in computation, any clerical or typographical errors or any errors of similar nature;
    2. if so agreed by the parties, to interpret certain parts of the award;
    3. to make an additional award as to claims presented in the arbitral proceedings but omitted from the award.
  2. The decision on such an application is made by the sole arbitrator (arbitral tribunal). Prior to making a decision upon such an application, the other party is to be heard. The sole arbitrator (arbitral tribunal) shall determine a time period for that purpose, which should not exceed 30 days.
  3. The sole arbitrator (arbitral tribunal) may correct any error of the type referred to in paragraph (1) a) of this Article on its own initiative within 30 days of the date of the award.
  4. The provisions of Article 27 paragraphs 1 to 6 shall apply to the correction, interpretation or making of an additional award. The interpretation or correction shall be part of the arbitral award.

Publishing of Awards

Article 30

The Board is entitled to publish an award in legal journals or in its own publications in anonymous form, unless publication is objected to by at least one party within thirty days after service of the copy of the award on it.

 

Determination of Costs

Article 31

When the arbitral proceedings are terminated, the sole arbitrator (arbitral tribunal) shall, upon application of a party, state in the award on the merits or by separate award: the costs of arbitration fixed by the Secretary General in accordance with Article 34 paragraph 1; shall determine the amount of costs of the parties; and shall state who should bear the costs of the proceedings or the proportion in which the costs of the proceedings are to be shared.

 

Costs of the Proceedings

Article 32

The costs of the proceedings consist of the following elements:

  1. The costs of arbitration, that is to say, the outlay of the Centre (administrative costs), arbitrators’ fees plus any value added tax and cash outlay (such as travel and subsistence expenses of arbitrators, costs of service of documents, rent, costs  of simple minuting); and
  2. The costs of the parties, that is to say, the appropriate expenses of the parties for their representation and other outlay related to the arbitration proceedings, in particular, the costs specified in Article 35 paragraph 1.

 

Registration Fee

Article 33

  1. On filing the claim (counter-claim), the Claimant (Counter-claimant) shall pay into the account of the Centre, free of charges, a registration fee in the amount stated. That fee is intended to cover the costs up to the submission of the files to the sole arbitrator (arbitral tribunal). If higher outlay is incurred, an additional sum may be prescribed.
  2. If there are more than two parties to the proceedings, the registration fee shall be increased by 10% for each additional party.
  3. The registration fee shall not be repayable. The registration fee, as well as any additional amount required in accordance with paragraph 1 of the present Article shall be deducted from the Claimant’s (Counter-claimant’s) share of the deposit against costs of arbitration.
  4. The claim (counter-claim) shall be treated only after the registration fee is fully paid.


Costs of Arbitration and Deposit

Article 34

  1. The costs of arbitration shall be determined by the Secretary General at the end of the proceedings.
  2. The Secretary General shall fix the amount of the deposit against the expected costs of arbitration. That deposit shall be paid in equal shares by the parties before transmission of the files to the sole arbitrator (arbitral tribunal) and within thirty days after service of the payment request.
  3. If the share of the Claimant (Counter-claimant) is not received within the time-limit, despite prolongation thereof, the claim (counter-claim) shall not be treated any further. The Secretary General shall inform the parties thereof.
  4. If the share of the Respondent (Counter-Respondent) is not received within the time-limit set, the Secretary General shall inform the Claimant (Counter-claimant) thereof and shall request him to pay the outstanding share of the deposit within thirty days of receipt of the payment request. If that amount is not received within the time-limit, the claim (counter-claim) shall not be treated any further. The Secretary General shall inform the parties thereof.
  5. If it should be necessary in the course of the proceedings to increase the deposit against costs because of an increase in the amount in dispute, a procedure analogous to that provided for in paragraphs 2 to 4 of the present Article shall be adopted. Until payment of the additional deposit, the amplification of the claim that led to the increase of the amount in dispute shall not be taken into account in the arbitral proceedings.
  6. If it should be necessary in the course of the proceedings to increase the deposit against costs because the amount fixed for cash outlay on determining the deposit is not sufficient, a procedure analogous to that provided for in paragraphs 2 to 4 of the present Article shall be adopted.

 

Further Costs of Procedure

Article 35

  1. If the sole arbitrator (arbitral tribunal) considers certain action entailing costs, such as the appointment of experts, interpreters or translators, making verbatim records of the proceedings, a visual inspection, or relocation of the proceedings, to be necessary, he (it) must make arrangements to cover the expected costs and inform the Secretary General thereof.
  2. The sole arbitrator (arbitral tribunal) may undertake procedural steps in accordance with paragraph 1 of the present Article only if adequate cover for the expected costs exists.
  3. The sole arbitrator (arbitral tribunal) shall decide what consequences for the proceedings arise from the failure to pay a prescribed deposit against costs.
  4. All commitments related to the procedural steps mentioned in paragraph 1 of the present Article shall be undertaken by the sole arbitrator (arbitral tribunal) in the name and for the account of the parties.

 

Calculation of the Costs of Arbitration

Article 36

  1. The administrative costs of the Centre and the arbitrators’ fees shall be fixed on the basis of the amount in dispute, according to the schedule of arbitration costs attached to these Rules (Annex 1). Where the proceedings are terminated early, the Secretary General may reduce the arbitrator´s fees as it appears just corresponding to the stage reached in the proceedings.
  2. If there are more than two parties to proceedings, the rates for the administrative costs of the Centre and the arbitrators’ fees contained in the schedules attached to these Rules shall be increased by 10% for each additional party.
  3. The arbitration costs for claims that are submitted to offset against the claims (counter-claims) and that are in fact and in law of no connection with the cause of action (principle claims), are to be calculated separately and paid as like counter-claims. Article 34 shall apply accordingly to determine the deposits. Counter-claims are not to be dealt with in the proceedings concerning the principle claims until the additional deposits have been fully paid.
  4. In the case of proceedings conducted concerning a number of individual claims or counter-claims, which are both in fact and in law of no connection, the Secretary General may at any stage of the proceedings make a separate calculation of the costs of arbitration according to the amounts in dispute in respect of the individual claims.
  5. The Secretary General may deviate from the statements of the parties in fixing the amount in dispute if the parties have made only a partial claim or if a request by the parties whose purpose was not the payment of sums of money was obviously undervalued.
  6. The rates quoted in the schedule of arbitrators’ fees are the fees for sole arbitrators. In any case they shall be raised to two-and-a-half times the amounts quoted if an arbitral tribunal is appointed and to up to three times the rates stated in the event of the particular difficulty of a case.
  7. The tariffs specified in the schedule for arbitrator´s fees include any and all partial and interim decisions, such as awards on jurisdiction, partial awards, decisions on the challenge of arbitrators, interim measures of protection, other decisions and orders that manage the proceedings.
  8. Reductions of the amount in dispute shall be taken into consideration in calculating the arbitrators’ fees and administrative costs only if they were made before transmission of the files to the sole arbitrator (arbitral tribunal).
  9. Cash outlays shall be determined according to the actual expenditure.
  10. The tariffs specified in the schedule for arbitrator´s fees do not include value added tax, to which the arbitrator´s fees may be subject. Those arbitrators whose fees are subject to value added tax shall inform the Secretary General of the prospective amount of value added tax upon taking up office.

 

Transitional Provision

Article 37

This version of the Vienna Rules shall apply to all proceedings in which the claim was filed after 30th June, 2006.

 

ANNEX 1

SCHEDULE OF ARBITRATION COSTS

Registration Fee: EUR 2,000 )

Administrative Charges )

Amount in dispute in euros

Rate in euros

from

to

 

0

100,000

3,000

100,001

200,000

3,000 + 1.5 % of excess over 100,000

200,001

500,000

4,500 + 1 % of excess over 200,000

500,001

1,000,000

7,500 + 0.7 % of excess over 500,000

1,000,001

2,000,000

11,000 + 0.4 % of excess over 1,000,000

2,000,001

5,000,000

15,000 + 0.1 % of excess over 2,000,000

5,000,001

10,000,000

18,000 + 0.05 % of excess over 5,000,000

over 10,000,000

 

20,500 + 0.01 % of excess over 10,000,000

Fees for sole arbitrators )

Amount in dispute in euros

Rate in euros

from

to

 

0

100,000

6 % - minimum fee:  1,000

100,001

200,000

6,000 + 3 % of excess over 100,000

200,001

500,000

9,000 + 2.5 % of excess over 200,000

500,001

1,000,000

16,500 + 2 % of excess over 500,000

1,000,001

2,000,000

26,500 + 1 % of excess over 1,000,000

2,000,001

5,000,000

36,500 + 0.6 % of excess over 2,000,000

5,000,001

10,000,000

54,500 + 0.4 % of excess over 5,000,000

10,000,001

20,000,000

74,500 + 0.2 % of excess over 10,000,000

20,000,001

100,000,000

94,500 + 0.1 % of excess over 20,000,000

Over 100,000,000

174,500 + 0.01 % of excess over 100,000,000