
Dispute Resolution in Austria
Description
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Divided equally between arbitration and litigation, with a concluding chapter on the role of relevant international conventions and treaties, the book provides a practical approach to users of the Austrian law on dispute resolution. While it includes detailed references and examples of the jurisprudence of Austrian courts and the opinions of Austrian academics, its great value lies in the straightforward answers it provides foreign lawyers to questions that arise during proceedings in Austria. Issues and topics covered include the following:
- the rules governing arbitration agreements and arbitrability;
- the taking of evidence in arbitration;
- interim measures;
- costs;
- recognition and enforcement of arbitral awards;
- court structure and jurisdiction of Austrian courts;
- the evidentiary proceedings before Austrian courts; and
- European Civil Procedure
This is the first detailed English-language portrayal of the Austrian legal situation à propos dispute resolution. It allows practitioners to quickly grasp an overview of the Austrian practice in both arbitration and litigation while simultaneously ensuring the required depth to fully understand the legal background of this practice.
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Content
- Intro
- Halftitle Page
- Title Page
- Copyright Page
- Table of Contents
- Preface
- List of Abbreviations
- CHAPTER 1 Arbitration
- I Introduction and Legal Framework
- A General
- B Legal Framework
- C Scope of Application of Austrian Arbitration Law
- D Austria as Place of Arbitration
- E The Vienna International Arbitral Centre (VIAC)
- F Excursus: Overview about Arbitrating under the Vienna Rules 2013
- G Selected Issues
- II The Arbitration Agreement
- A Introduction
- B Capacity to Conclude an Arbitration Agreement and Arbitrability
- a Capacity to Conclude an Arbitration Agreement
- 1 General
- 2 Capacity of Business Associations
- 3 Representation
- b Arbitrability
- 1 General
- 2 Pecuniary Claims
- 3 Non-pecuniary Claims
- 4 Invalid Arbitration Agreement Sua Sponte
- 5 Exceptions
- c Lacking Capacity and Lacking Arbitrability
- C Content-Related and Formal Requirements
- a General
- b Mandatory and Facultative Content
- c Formal Requirements
- D Interpretation of the Arbitration Agreement
- E Applicable Law
- F Arbitration Agreements with Consumers and Employees
- III The Arbitral Proceedings
- A The Arbitral Tribunal
- a Initiation of Arbitration Proceedings
- b The Seat
- c The Relationship between Arbitral Tribunals and State Courts
- d Constitution of the Arbitral Tribunal
- 1 Personal Qualities of the Arbitrators
- 2 Number of Arbitrators
- 3 Appointment of Arbitrators
- e Challenge of Arbitrators
- 1 Introduction
- 2 Challenge Procedure before the Arbitral Tribunal
- 3 Challenge Procedure before the Austrian Supreme Court
- 4 Case Law
- f Liability of Arbitrators
- g Premature Termination of an Arbitrator's Mandate
- 1 Grounds
- 2 Appointment of a Substitute Arbitrator
- B The Arbitral Proceedings
- a Introduction
- b Competence of the Arbitral Tribunal to Rule on Its Own Jurisdiction
- c Parties' Representatives
- d The Parties' Right to Object to the Arbitral Tribunal's Jurisdiction
- e Fair-Treatment of the Parties
- f Right to Be Heard
- g Confidentiality
- h Statement of Claim and Answer to the Statement of Claim
- i Counterclaim and Set-Off
- j Intervention by a Third Party
- k The Taking of Evidence
- l Experts
- m Legal Aid by State Courts
- C Applicable Law to the Dispute and Mandatory Rules of Law
- a The Structure of Section 603 ACCP and the Reception of the UNCITRAL Model Law
- b The Choice of Law by the Parties
- c The Determination of the Applicable Law by the Arbitral Tribunal
- d The Limits of the Choice of Law by the Parties
- 1 The Ordre Public
- 2 Mandatory Rules
- e Decision Ex Aequo Et Bono
- f Decisions Disregarding the Parties' Choice of Law
- D Interim Measures
- a Introduction
- b The Parallel Jurisdiction of Courts and Arbitral Tribunals to Order Interim Measures
- 1 General
- 2 The Mandatory Character of Section 585 ACCP
- 3 Jurisdiction of the Courts
- c The Power of the Arbitral Tribunal to Order Interim or Protective Measures
- 1 General
- 2 Substantive Preconditions for Interim Measures
- 3 Procedure
- 4 The Kind of Measures That Can Be Ordered
- 5 Formal Requirements
- 6 Enforcement of Interim Measures
- E Multi-Party Arbitration
- a The Basis of Multi-Party Arbitration
- b The Appointment of Arbitrators in Multi-Party Situations
- c The Inclusion of Third Parties
- F Costs
- a Introduction
- b The Statutory Provisions
- 1 General
- 2 Definition of Procedural Costs
- 3 Procedure
- 4 Advance on Costs
- c Excursus: Costs under the Vienna Rules
- 1 General
- 2 Definition of Procedural Costs
- 3 Procedure
- 4 Advance on Costs
- 5 Determination of Costs
- G The Award and the Termination of the Proceedings
- a Default by a Party
- b Termination of the Arbitral Proceedings
- c Effects of an Arbitral Award
- d The Arbitral Award
- 1 Formal Requirements
- 2 Decision-Making
- e Settlement
- f Request for Correction and Interpretation
- IV The Challenge and Control of Arbitral Awards
- A Limited Control of Arbitral Awards by State Courts
- a Introduction
- 1 No Judicial Review of the Case
- 2 Grounds for Challenge May Not Be Waived in Advance
- 3 Grounds for Challenge under the NYC64
- B Subject to Challenge65
- C The Action to Set-Aside an Arbitral Award
- a The Nature of the Action
- b Requirements for an Action to Set-Aside an Arbitral Award
- D Grounds for Challenge - to Be Asserted by the Parties
- a Defective Arbitration Agreement (Section 611(2) Item 1 ACCP)
- 1 The Lack of a Valid Arbitration Agreement (Alternative 1)
- 2 The Wrongful Denial of Jurisdiction by the Arbitral Tribunal (Alternative 2)
- 3 Defective Arbitration Agreement (Alternative 3)
- b Violation of Due Process (Section 611(2) Item 2 ACCP)
- 1 No proper Notice of the Appointment of an Arbitrator or of the Initiation of the Arbitral Proceedings (Alternatives 1 and 2)
- 2 Other Reasons Where a Party Was Unable to Present His Case (Alternative 3)
- c Ultra Petita (Section 611(2) Item 3 ACCP)
- 1 The Arbitral Tribunal Decides on a Matter That Does Not Fall in the Scope of the Arbitration Agreement (Alternative 1)
- 2 The Arbitral Tribunal Renders an Award Which Goes beyond the Scope of the Arbitration Agreement (Alternative 2)
- 3 The Arbitral Tribunal Renders an Award Which Goes beyond the Parties' Plea for Legal Protection (Alternative 3)
- d Irregular Composition of the Arbitral Tribunal (Section 611 (2) Item 4 ACCP)
- e Violation of Procedural Public Policy (Section 611(2) Item 5 ACCP)
- f Grounds for Revision under Section 530(1) Numbers 1-5 ACCP (Section 611 (2) Item 6 ACCP)
- E Grounds for Challenge - Ex Officio
- a Lack of Arbitrability (Section 611(2) Item 7 ACCP)
- b Violation of Substantive Public Policy (Section 611(2) Item 8 ACCP)
- F Additional Grounds to Set-Aside an Arbitral Award in Consumer-or Labour-Related Arbitral Proceedings
- G Procedure
- a The Austrian Arbitration Act 2013
- b The Procedure before the Austrian Supreme Court
- c Costs
- d Procedure in Consumer- and Labour-Related Arbitral Proceedings
- e The Right to Challenge an Arbitral Award
- 1 The Parties
- 2 Third Parties
- f The Prayer for Relief
- g Time Limit
- h Confidentiality
- i Effects of the Challenge
- H Declaration of Existence or Non-existence of an Arbitral Award
- V Recognition and Enforcement of Arbitral Awards
- A Recognition and Enforcement of Domestic Arbitral Awards
- a Introduction
- b The Enforcement Procedure
- B Recognition and Enforcement of Foreign Arbitral Awards
- a Introduction
- b The Enforcement Procedure
- 1 General
- 2 Jurisdiction (Section 82 AEA)
- 3 Other Requirements (Sections 79 and 80 AEA)
- 4 Grounds for Refusal of the Declaration of Enforceability (Section 81 AEA)
- 5 Procedure (Section 83 AEA)
- 6 Appeal (Section 84 AEA)
- 7 Request for Declaration of Enforceability and for Enforcement (Section 84a AEA)
- 8 Effect of the Declaration of Enforceability (Section 84b AEA)
- 9 Setting-Aside and Amendments of the Declaration of Enforceability (Section 84c AEA)
- 10 Recognition without Enforcement (Section 85 AEA)
- c Primacy of Rules and Regulation of Public International Law (Section 86 AEA)
- 1 Case Law of the Austrian Supreme Court on the New York Convention
- 2 The European Convention on International Commercial Arbitration
- VI Alternative Dispute Resolution
- A Methods of Alternative Dispute Resolution
- a Introduction
- b Direct Negotiations
- c Mediation
- 1 Introduction
- 2 The Austrian Mediation Act
- d Conciliation
- e Early Neutral Evaluation
- f Mini Trial
- g Expert Determination (Schiedsgutachten)
- h Dispute Resolution Board
- B Institutional Mediation and Conciliation
- a Introduction
- b The VIAC Conciliation Rules
- 1 Commencement of the Proceedings
- 2 The Appointment of a Conciliator
- 3 Successful Settlement of the Dispute
- 4 Termination of the Conciliation without Success
- 5 Costs
- c Mediation
- d Neutral Evaluation
- CHAPTER 2 Litigation
- I Introduction and Legal Framework
- A General
- B Legal Framework
- II Court Structure and Jurisdiction
- A The Decision-Makers
- a Judges
- b Registrars ('Rechtspfleger')
- B The Constitution of Courts
- a Single Judges or Tribunals
- b The Challenge of Judges
- C Structure and Jurisdiction
- a The Three Instances
- b The Jurisdiction of the Courts Ratione Material
- c The Jurisdiction of the Courts Ratione Loci
- d Forum Selection Clauses
- e The Consequences of the Lack of Jurisdiction
- f The Healing of the Lack of Jurisdiction
- g The Applications for Transfer of the Matter
- h The Application under Section 230a ACCP
- i The Application under Section 261(6) ACCP
- III Proceedings
- A Commencing the Proceedings
- a The Statement of Claim
- 1 The Content of the Statement of Claim
- 2 Types of Claims
- 3 The Matter in Dispute
- 4 Examination and Delivery of the Statement of Claim
- 5 Summary Proceedings for the Issue of a Payment Order
- 6 Regular Proceedings
- b The Defence of the Respondent
- 1 Before District Courts
- 2 Before Regional Courts
- B The Preparatory Hearing
- C The Evidentiary Hearing
- D Evidence
- a Subject of Evidence
- b Classification of Evidence
- c Standard of Proof
- d Burden of Proof
- e Judicial Evaluation of the Quantum of Claim (Section 273(1) ACCP)
- f Illegally Obtained Evidence
- g Types of Evidence
- 1 Documentary Evidence
- 2 Witness Testimony
- 3 Expert Reports
- 4 Inspections
- 5 Hearing of the Parties in Person
- E Security Deposit of Foreign Claimants (Aktorische Kaution)
- F Court Settlements (Prozessvergleich)
- G Withdrawal of the Court Action
- H Amendment of Claim
- I Acknowledgement of the Claim
- IV Interim Measures
- A Introduction
- B Types of Claims to Be Secured
- C Relationship to the Main Claim
- D Types of Interim Measures
- E Enforcement Proceedings to Secure a Claim
- F Interim Measures to Secure a Pecuniary Claim (Section 379 AEA)
- G Interim Measures to Secure a Claim for Specific Performance (Section 381 No. 1 AEA)
- H Interim Measures to Secure a Right or a Legal Relationship (Section 381 No. 2 AEA)
- I Procedure
- a General
- b Competent Court
- c Application
- d Approval
- e Enforcement of the Interim Measure
- f Remedies
- g Annulment of the Interim Measure (Sections 399 et seqq. AEA)
- h Costs and Damages
- V The Decision of the Court
- A Introduction
- B The Judgment
- a Categories of Judgment
- 1 According to the Outcome
- 2 According to the Type of Claim
- 3 According to the Basis of the Judgment
- 4 According to the Extent the Decision Deals with the Claims
- b Delivery of the Judgment
- 1 The Oral Judgment (Section 414 ACCP)
- 2 The Written Judgment (Section 415 ACCP)
- c End of Trial (Section 416(2) ACCP)
- d Form and Structure of a Judgment (Section 417 ACCP)
- 1 Head of the Judgment (Section 417(1) (1), (2) ACCP)
- 2 The Dispositive Provisions of a Judgment (Section 417(1) (3) ACCP)
- 3 The Reasoning of the Judgment (Section 417(1) (4) (2) ACCP)
- 4 Further Elements of a Judgment
- e Service of the Judgment
- f Correction of the Judgment (Section 419 ACCP)
- g Effects of the Judgment
- 1 Substantive Legal Validity
- 2 Enforceability
- 3 Altering a Legal Position
- 4 Effect on the Facts of the Case
- C The Court Order
- a Types of Court Orders
- 1 Decisions on the Merits
- 2 Procedural Decisions
- b Announcement of Court Orders
- c Form of Court Orders
- d Enforceability
- VI Legal Remedies
- A Introduction
- B Legal Remedies
- a Common Characteristics
- 1 Suspensive Effect
- 2 Devolutive Effect
- 3 Bilateral Nature
- b Extent of the Possibility to Appeal and Review
- c Admissibility of Remedies
- C Appeal against Judgments (Sections 461 Et Seqq. ACCP)
- a General
- b Grounds for Appeal
- c Grounds for Annulment (Section 477 ACCP)
- 1 Infringements of Fundamental Prerequisites in the Decision-Making Process
- 2 Infringements of Fundamental Principles regarding Party's Participation
- 3 Infringements of the Worthiness of Protection of the Claim
- 4 Infringements of Fair Trial Principle
- d 'Other' Relevant Procedural Defects (Section 496 ACCP)
- 1 False Establishment of the Facts
- 2 Transmitting Errors
- 3 Incorrect Legal Assessment
- 4 Restrictions to the Appeal According to Section 501 ACCP - Small Claims Appeal
- D Appeal to the Supreme Court (Sections 502 Et Seqq. ACCP)
- E Appeals against Court Orders (Sections 514 Et Seqq. ACCP)
- F Appeals against Court Orders of the Appellate Court (Section 528 ACCP)
- G Legal Remedies in the Form of Actions (Sections 529 Et Seqq. ACCP)
- H Other Legal Remedies
- VII Costs
- A Principles
- a Costs Follow the Event
- b Reimbursement by Quota
- c Allocation of Disbursements
- B Exceptions
- a Introduction
- b Exceptions in Detail
- 1 Negligible Loss of the Proceedings
- 2 Determination of Cost in Cases in Which the Claim Is Based on Expert Opinion or the Judges Discretion
- C Separation of Costs
- D Costs in Case of Settlement
- E Preliminary Costs
- VIII Enforcement of Court Decisions
- A General
- a Legal Sources
- b Parties and State Authorities
- c Principles of the Execution Proceedings
- B The Enforcement Proceedings
- a The Course of the Proceedings
- b Remedies in the Enforcement Proceedings and Court Actions of the Debtor or Third Parties
- c General Prerequisites of the Enforcement Proceedings
- 1 Domestic Jurisdiction
- 2 The Matter to Be Decided by the Court of Enforcement
- 3 Party Status in the Enforcement Proceedings
- 4 Capacity to Act in the Execution Proceedings
- 5 Representation
- d Special Prerequisites of the Execution Proceedings
- 1 Competence of the Court to Decide about the Subject Matter
- 2 Title
- 3 Request for Enforcement
- 4 Limitations of Enforcement
- 5 Costs
- 6 The Execution of Foreign Titles
- IX European Civil Procedure
- A Introduction
- B The Brussels I Regulation
- a Origin
- b Structure and Scope
- 1 Material Scope
- 2 Territorial and Personal Scope
- 3 Foreign Element
- c Provisions regarding Jurisdiction
- 1 General Jurisdiction (Article 4 Brussels I Recast
- 2 Special Jurisdiction (Articles 7, 8 and 9 Brussels I Recast)
- 3 Insurance Matters, Consumer Contracts and Individual Employment Contracts (Articles 10 Et Seqq. Brussels I Recast)
- 4 Exclusive Jurisdiction (Article 24 Brussels I Recast)
- 5 Prorogation of Jurisdiction
- 6 Jurisdiction Derived from Entering an Appearance
- d European Lis Pendens and Related Actions
- e Preliminary and Protective Measures
- f Recognition and Enforcement
- C European Service Regulation
- CHAPTER 3 International Conventions and Treaties
- I Introduction
- II Arbitration
- A Multilateral Instruments
- a ICSID-Convention
- b Energy Charter Treaty
- c NYC
- d The European Convention
- B Bilateral Instruments
- III Litigation
- A Introduction
- B Multilateral Instruments
- a The Lugano Convention
- b Conventions on the Law of International Transportation
- C Bilateral Instruments
- D Security Deposit of Foreign Claimants
- Index
- Back Cover
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