Presentation on theme: "International Arbitral Centre of the Austrian Federal Economic Chamber The International Arbitral Centre of the Austrian Federal Economic Chamber and the."— Presentation transcript:
International Arbitral Centre of the Austrian Federal Economic Chamber The International Arbitral Centre of the Austrian Federal Economic Chamber and the Vienna Rules 2006
The International Arbitral Centre of the Austrian Federal Economic Chamber (VIAC) is an Arbitral Institution Arbitration is either Ad-Hoc Arbitration The parties themselves administer the proceedings until the Arbitral Tribunal is constituted; if a party fails to nominate its Arbitrator, the appointment shall be effected by the courts of law Ad-hoc Arbitration with an Appointing Authority, mentioned in the arbitral agreement Ad-hoc Arbitration with an Appointing Authority and binding Rules of Arbitration (UNCITRAL etc.) Institutional Arbitration with a Secretariat, an Appointing Authority and binding Rules of Arbitration (Vienna Rules, ICC, LCIA, DIS, etc.)
VIACs Bearer Institution and Bodies Austrian Federal Economic Chamber (AFEC) VIAC is an independent department of AFEC AFEC appoints VIACs bodies AFEC determines the Rules of Arbitration (Vienna Rules) upon recommendation by the Board
International Arbitral Centres (VIAC) bodies Board, headed by the President Secretary General Sole Arbitrator or Arbitral Tribunal consisting of three Arbitrators International Advisory Body (International experts, consultants only, invited by the Board) Secretary General and other staff are employees of AFEC Members of the Board and Arbitrators are not employees) VIACs Bearer Institution and Bodies
VIAC is an Arbitral Institution VIAC is no Arbitral Tribunal It supports the parties before the Arbitral Tribunal is constituted: service of documents (Statement of Claim, Memorandum in Reply, Counter-claim, etc.) appointment of Arbitrators collection of deposits for procedural costs
VIAC is an Arbitral Institution VIAC accompanies the arbitral proceedings: decision upon challenge of an arbitrator because his/her independence or impartiality are in doubt non compliance with his/her duties assistance to the parties (interpreters, court rooms, etc.) VIAC terminates the arbitral proceedings: service of the arbitral award determination of the arbitrators fees deletion from the list of pending cases
Vienna Rules 2006 Why new Vienna Rules ? New Arbitration Act (Schiedsrechtsänderungsgesetz) 2006, BGBl. I Nr. 7/2006, in force since 1 July 2006 Improvement of language Implementation of experience Applicable to all proceedings in which the claim was filed after 30th June 2006
VIACs organisation VIACs jurisdiction Proceedings prior to the transmission of files to the arbitrator(s) (pre-arbitral proceedings) Conduct of the proceedings Arbitral Award Determination of Costs The Structure of the Vienna Rules
VIACs Organisation The Board Appointed by the Extended Board of AFEC upon recommendation of the President of the Board for a period of five years At least five members Not subject to instructions No employees of AFEC
VIACs Organisation The Board Most important tasks: Election of one of its members as chairman Appointment of arbitrators (in lieu of defaulting parties) Appointment of chairpersons of arbitral tribunals (in lieu of defaulting arbitrators) Advice to the Secretary Correspondence with the Board shall be conducted in English or German Decisions may be made by correspondence
VIACs Organisation The President of the Board The Board elects one of its members as President. The President presides over the Board meetings. Where the president is prevented, the member who11 is oldest by age shall take over his task.
VIACs Organisation The Secretary General Appointed by the Board of AFEC for a period of five years employee of AFEC not subject to instructions
VIACs Organisation The Secretary General Administers the cases Determines procedural costs Provides information regarding the law on enforcement and the enforcement practice of the country in which the award is to be enforced Performs all duties not being reserved to the Board or to the Arbitral Tribunal Correspondence with the Secretary General shall be conducted in English or German.
VIACs Organisation The Arbitrator(s) Sole arbitrator: Nominated by agreement of the parties or by the Board of the VIAC Arbitral tribunal 2 arbitrators nominated by parties Chairperson appointed by the co-arbitrators or by the Board of the VIAC
VIACs Organisation Qualification of he Arbitrator(s) Any person with legal capacity shall be eligible, except professional judges ( Richterdienstgesetz) Parties may agree on additional special qualification (Nationality, qualification in a particular (technical or legal) field). Arbitrators do not have to be lawyers. Arbitrators must perform their services in complete independence and impartiality. Arbitrators have to disclose circumstances likely to give rise to doubts as to their impartiality or independence.
VIACs Organisation Relation between VIAC and the Arbitrator(s) VIAC is mediator between parties and arbitrators. Secretary General concludes contract with arbitrators on behalf of the parties and fixes arbitrators fees (prepaid by the parties) Publication of Vienna Rules is no offer but may lead to an obligation to conclude a contract. Offer is the filing of the law suit. Acceptance by VIAC on behalf of the parties is the submission of the law suit to the defendant under the condition that the tribunal will accept its competence. Consequence: In case of lack of jurisdiction the arbitrators may not award compensation of costs. liability of VIAC vis a vis parties for failures of arbitrators limited to negligent selection of arbitrators (Auswahlverschulden).
VIACs Organisation The Arbitrator(s) Termination of the mandate of an arbitrator: Parties agree to the termination (consent of the arbitrator required ?) The arbitrators withdraw from office (responsibility for additional costs?) A challenging motion is granted (responsibility of the Board?) The arbitrator is removed from his office by the Board The proceeding has ended
VIACs Organisation The Arbitrator(s) Grounds for challenge: His/her independence or impartiality are in doubt Procedure: Challenging motion to VIACs Secretariat Decision by VIACs Board after having obtained the challenged arbitrators comments. Comments may also be taken from other persons. Arbitral proceedings continue despite challenge However, an award shall be rendered only after the Boards decision
VIACs Organisation The Arbitrator(s) Grounds for early termination of the mandate: Longer incapacitation Failure to perform his/her duties Undue delay of proceedings Procedure: Motion for termination to VIACs Secretary General Decision by VIACs Board after having obtained the concerned arbitrators comments In case of a longer incapacitation, the mandate may be terminated even ex-officio
VIACs Organisation The Arbitrator(s) Consequences of successful challenge or termination of mandate: Parties shall be requested to appoint (again) a sole arbitrator or to nominate (again) an arbitrator If the chairperson is removed: Arbitrators shall be requested to appoint (again) a chairperson In case of default with nomination or appointment, arbitrator/chairperson shall be appointed by the Board in lieu of defaulting parties/arbitrators
VIACs Jurisdiction Requirements for arbitration under the Vienna Rules At least one party shall have its residence or place of business outside of Austria, or Dispute must be of international character Agreement upon VIACs jurisdiction includes application of Vienna Rules Domestic parties and dispute without international character: Jurisdiction of the Permanent Arbitral Tribunal of the Vienna Economic Chamber or of the regional chamber of the agreed venue of arbitration (if any) Conduct of the proceedings in accordance with the rules of the Permanent Arbitral Tribunals of the regional chambers
VIACs Jurisdiction Checking of jurisdiction Checking of jurisdiction includes checking of –Validity of the arbitration agreement –Requirements for jurisdiction under Vienna Rules –Arbitrability First checking by the Secretary General on the basis of prima facie evidence Second checking by the arbitral tribunal in detail, if a plea is raised by a party in time, that the tribunal has no jurisdiction. Final checking by the state court under § 611 ZPO = Code of Civil Procedure
VIACs Jurisdiction Arbitrability Art. 582 para 1 ZPO = Code of Civil Procedure (1) Any pecuniary claim that lies within the jurisdiction of the courts of law can be subject of an arbitration agreement. An arbitration agreement on non-pecuniary claims shall be legally effective insofar, as the parties shall be capable of concluding a settlement upon the matter of the dispute.
VIACs Jurisdiction Arbitrability (2) Claims in matters of family law as well as all claims based on contracts that are even only partly subject to the Austrian Landlord and Tenant Law (Mietrechtsgesetz) or to the Austrian Residential Public Benefit Law (Wohnungsgemeinnützigkeitsgesetz), including all disputes regarding the concluding, existing, termination and the legal characterization of such contracts and all claims resulting from or in connection with flat property (cooperative apartment ownership) may not be made subject to arbitral proceedings. Statutory provisions which are not included in this chapter and according to which disputes may not, or may only under certain circumstances be made subject to arbitral proceedings, shall not be affected.
VIACs Jurisdiction Venue of Arbitration Venue of Arbitration is Vienna (if not agreed upon otherwise) Legal importance of venue of the arbitration: – Nationality of the arbitral award – Enforceability – Applicable procedural and substantive law Practical consequences: – Visa requirements – Costs (travelling etc.) – Services
Proceedings prior to the Transmission of the Files to the Arbitral Tribunal Statement of Claims Mandatory content: Designation of parties and their addresses Specific statement of claims including the particulars and the supporting documents on which the claims are based Amount in dispute (unless claims are not related to a sum of money) Particulars regarding the number of arbitrators If a tribunal of three arbitrators is requested, nomination of an arbitrator
Proceedings prior to the Transmission of the Files to the Arbitral Tribunal Statement of Claims A copy of the agreement specifying VIACs jurisdiction must be attached to the Statement of Claims One copy of the Statement of Claims together with enclosures must be submitted for each defendant, each arbitrator and the secretariat
Proceedings prior to the Transmission of the Files to the Arbitral Tribunal Statement of Claims Incomplete Statement of Claims: Secretary shall request Claimant to remedy the defect, setting a time-limit Agreement on VIACs jurisdiction includes provisions which conflict with Vienna Rules: Board may return the Statement of Claims to Claimant as not suitable for further action
Proceedings prior to the Transmission of the Files to the Arbitral Tribunal Memorandum in Reply Time-limit: 30 days Mandatory content: Reply to the pleadings in the Statement of Claims Particulars regarding the number of Arbitrators If a Tribunal of three Arbitrators is requested, nomination of an Arbitrator One copy of the Memorandum in Reply together with enclosures must be submitted for each Claimant, each Arbitrator and for the Secretariat
Proceedings prior to the Transmission of the Files to the Arbitral Tribunal Counter-Claims Requirements: Identical parties Arbitration agreement constitutes the jurisdiction of the VIAC Can be raised until closure of the evidentiary proceedings Arbitrator(s) request(s) Counter-Defendant to submit a Memorandum in Reply to Counter-Claim setting a time-limit If Counter-Claim is incomplete or would lead to a substantial delay in main proceedings Return of Counter-Claim to Secretariat to open separate proceedings
Proceedings prior to the Transmission of the Files to the Arbitral Tribunal Appointment of Arbitrators Parties agree on: Sole arbitrator Tribunal (3 arbitrators) In absence of such an agreement, VIACs Board shall determine the number of arbitrators, considering: difficulty of the case amount in dispute interest of parties in a rapid and cost-effective decision
Proceedings prior to the Transmission of the Files to the Arbitral Tribunal Appointment of Arbitrators Parties shall be requested to agree on a sole arbitrator indicating his/her name and address nominate arbitrators If parties fail to do so: VIACs Board appoints sole arbitrator /the arbitrator to be nominated by the Defendant Sanction against defaulting claimant: Deletion from the list of pending cases
Proceedings prior to the Transmission of the Files to the Arbitral Tribunal Appointment of Arbitrators Arbitrators nominated by parties/appointed by Board are requested to agree on a chairperson If Arbitrators fail to do so: VIACs Board appoints chairperson
Basic Procedural Provisions Multiparty Proceedings - Requirements Claim of one or more Claimants: They must have agreed on a common arbitrator. Claims against two or more Defendants Essential requirement: VIACs jurisdiction for all parties Additional requirements All-Party-Agreement on sole arbitrators person or All Defendants nominate the same arbitrator
Basic Procedural Provisions Multiparty Proceedings - Requirements Alterrnative Requirements (Defendants do not accept multiparty jurisdiction): If the claim is to be directed against several persons according to substantive law (uniform joinder of parties), or If all parties are bound by the same arbitration agreement, or If all parties have agreed upon multiparty proceedings, or If all Defendants submit to multiparty proceedings and nominate the same arbitrator, or If Defendants fail to state whether a sole arbitrator or an arbitral tribunal shall decide the case, or if Defendants fail to nominate an arbitrator (the respective decision of VIACs Board is valid for all Defendants)
Basic Procedural Provisions Multiparty Proceedings - Service The statement of claim must be served on all Defendants If service is not possible to all Defendants: Upon Claimant´s request arbitral proceeding is continued only against those Respondents on whom the claim was served Proceeding against other Respondents are subject to a separate proceeding.
Basic Procedural Provisions Multiparty Proceedings Appointment of Arbitrators If all parties have agreed on multiparty proceedings, Defendants shall (also) agree on the number of arbitrators (sole arbitrator or arbitral tribunal) the person of the sole arbitrator or on the person of the arbitrator to be jointly nominated If Defendants fail to do so: decision or nomination by VIACs Board
Basic Procedural Provisions Multiparty Proceedings Consolidation Consolidation (joinder) of proceedings admissible if in all disputes the same arbitrators have been appointed, all the parties agree, and the arbitrator(s) agree(s)
Basic Procedural Provisions Time-Limits, Services and Communications Time-limits: observed, if documents are dispatched on the last day of the period time while documents are in transit (mail or courier service) does not count Prolongation either by Secretary General (Pre-Arbitral Proceedings) or by Arbitrator(s) Service by: registered letter courier service telefax other means that guarantee evidence of transmission Address for service: the address most recently notified to Secretariat or to Arbitrator(s) the address of the parties representatives
Conduct of the Arbitral Proceedings Basic procedural principles: Equal treatment of parties Right to be heard Arbitral Tribunal is free to conduct the proceedings at its discretion
Conduct of the Arbitral Proceedings Further procedural principles: Arbitrator(s) may take evidence ex-officio Participation of Defendant not required, but no default judgement Immediate objection on violation of procedural rules required Before terminating proceedings, Arbitrator(s) shall consult parties and shall announce the termination. Parties may be represented by authorised agents
Conduct of the Arbitral Proceedings Language of proceedings determined by agreement between parties, or Arbitrator(s) Proceedings can be oral (recorded hearing), or in writing Parties have the right to file submissions
Conduct of the Arbitral Proceedings Interim Measures of Protection by order of Arbitrators only parties are bound by such measures Arbitrator(s) may require the requesting party to provide appropriate security parties are not prevented from applying to any competent State organ, but are obliged to inform VIACs Secretariat and Arbitrators
Conduct of the Arbitral Proceedings Substantive law designated by: Parties (designation does not include conflict of law rules) Conflict of Law Rules Decisions on equity: Arbitrator(s) must be expressly empowered by parties
Conduct of the Arbitral Proceedings No interruption and suspension of proceedings (in principle) Parties must pursue the proceedings with due expedition Proceedings may be interrupted until the resolution of a preliminary question
Conduct of the Arbitral Proceedings The proceedings are terminated by Rendering of an award Conclusion of a settlement Withdrawal of the Claim by the Claimant unless Respondent objects and has a legitimate interest of obtaining a final settlement or award by agreement of the parties arbitrators find that continuation becomes impossible (no continuation by the parties)
Arbitral Award Formal requirements: Award shall be in writing Award shall include statement of grounds (waiver of grounds possible) Signatures of (the majority of) Arbitrator(s) and of the Secretary General Declaration of majority decision (at the request of the dissenting Arbitrator)
Arbitral Award Partial and interim awards may be issued Award concerning the content of a settlement (Consent Award) may be issued Confirmation of the finality and enforceability by the sole arbitrator or the chairman of the arbitral tribunal Clerical, typographical of computation errors as well as other obvious inaccuracies in the award may be corrected Award may be published in anonymous form Parties are bound to implement the award
Costs of the Proceedings Procedural costs are Costs of arbitration Administrative charges Arbitrators fees Cash outlays (Arbitrators travel expenses, photocopies, faxes, etc.) Costs of parties Expenses of parties (cash outlays, lawyers fees) Other procedural expenses (experts, translation, taking of minutes, visual inspections etc.)
Costs of the Proceedings Determination of the costs of parties by Arbitrator(s) the costs of arbitration by the Secretary General
Costs of the Proceedings Registration Fee: Registration fee to be paid by Claimant Registration fee covers the Secretariats costs until files are transmitted to arbitrator(s) Deletion from the list of cases, if registration fee is not paid Joint party supplement of 10% for each additional party No refund of registration fee
Costs of the Proceedings Money Deposit: Deposit against costs of arbitration fixed by Secretary General Payable by parties in equal shares Registration fee to be deducted from Claimants share Deletion from the list of cases, if Claimant fails to pay its share Prescription of Defendants share to Claimant, if Defendant fails to pay its share Deletion from the list of cases, if Claimant fails to pay Defendants share Same procedure when deposit shall be increased
Costs of the Proceedings Calculation of arbitral costs Fee schedule (based upon the amount in dispute) Joint party supplement of 10% for each additional party Separate calculation of costs for individual claims admissible Reductions of the amount in dispute shall be cost-effective only before transmission of files to arbitrator(s) Cash outlays shall be determined according to the actual expenditure
Costs of the Proceedings Other procedural costs (experts, interpreters, etc.): Money Deposits fixed by arbitrator(s) Undertaking of procedural steps only after payment of deposits In default of payment: the arbitrator(s) shall decide on the consequences (i.e. non-performance of procedural steps)
Costs of the Proceedings Bearing of the costs: Statement on costs in the award Costs may be split up between parties
Judicial Control Article 611 (1) ZPO: An appeal 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 jurisdiction. (2) An arbitral award shall be set aside if: 1. a valid arbitration agreement does not exist, or if the arbitral tribunal denies its jurisdiction despite the existence of a valid arbitration agreement, or if a party was under some incapacity to conclude a valid arbitration agreement under the law which was personally relevant to that party; 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 his case;
Judicial Control 3. the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration or beyond the plea of the parties for legal protection, provided that, if the default concerns only a part that can be separated from the award, only that part of the award shall be set aside; 4. the composition of the arbitral tribunal was not in accordance with a provision of this section or with an admissible agreement of the parties; 5. the arbitral procedure was not carried out in accordance with the fundamentals of the Austrian legal system (ordre public).
Judicial Control 6. the requirements have been met according to which a judgement of a court of law can be appealed by an action for revision under Article 530 paragraph 1, numbers 1 to 5; 7. the subject-matter of the dispute is not capable of settlement by arbitration under the law of this state; 8. the award is in conflict with the fundamentals of the Austrian legal system (ordre public).