The State Court as Appointing Authority and its Role in Challenge Proceedings Austrian/Polish Twin Conference 3 December 2010 Philipp Peters, Attorney-at-Law

Common Courts and the Composition of the Arbitral Tribunal Appointment of Arbitrators Challenge of Arbitrators Early Termination of Mandate Replacement of Arbitrators Court Intervention is ultima ratio 08.12.2018

Appointment of Arbitrators – Party Autonomy Provisions are non-mandatory In principle, parties can freely agree on appointment procedure Party Autonomy Number of arbitrators must be odd Principle of Fair Trial: Party acting as arbitrator Imbalance of influence on appointment procedure Mandatory Law 08.12.2018

Appointment of Arbitrators by State Courts - Prerequisites Period of 4 weeks for parties to appoint their arbitrators Period of 4 weeks for party-apppointed arbitrators to appoint chairman Court appointment upon application No Party Agreement Party’s failure to appoint according to agreement Parties‘ or arbitrators‘ Failure to agree on arbitrator as provided in arbitration agreement Failure of third party (e.g. Institution) to appoint within 3 months Party Agreement Failure by Parties on one side to appoint their joint arbitrator Multi-Party Proceedings Residuary clause Other circumstances that prevent appointment within 4 weeks Procedure on substitute appointment is nit successful within reasonable time Other Circumstances 08.12.2018

Appointment of Arbitrators by State Courts Court decision cannot be appealed Default can be remedied until the court takes ist decision 08.12.2018

Challenge of Arbitrators – 3-Tier Procedure Tier 3: Challenge before State Courts Mandatory Tier 2: Agreed Challenge Procedure Non-Mandatory Tier 1: Withdrawal or Dismissal 08.12.2018

Challenge of Arbitrators – Court Competence Parties can freely agree out-of-court procedure Lacking agreement: Tribunal decides on challenge => Including the challenged arbitrator Tier 2 Agreed Challenge Procedure Also applies if parties agreed on institutional rules Arbitration proceedings may continue in parallel No appeal against court‘s decision Tier 3 Challenge before State Courts 08.12.2018

Challenge of Arbitrators – Time limits 4 weeks after being informed about the tribunal’s composition, or after becoming aware of the grounds for challenge Belated out-of-court challenge precludes court challenge Out-of-court challenge 4 weeks after being informed about the out-of-court refusal of the challenge Court challenge 08.12.2018

Jurisdiction and Procedure According to local jurisdiction Exceptional jurisdiction if Seat of Arbitral Tribunal not yet determined →If one party has its seat, domicile or ordinary residence within Austria International Jurisdiction Regional Court of First Instance (“Landesgericht”) Function determined according to subject matter of the arbitration Acting as Civil Court, Commercial Court or Labor and Social Court Subject Matter Jurisdiction According to Party Agreement If no agreement: Seat of Arbitral Tribunal If seat not yet determined or outside of Austria: Commercial Court of Vienna Local Jurisdiction Austrian Non-Contentious Jurisdiction Act (Außerstreitgesetz) Public proceedings unless party applies for exclusion of public on justified grounds Procedure 08.12.2018

Court Intervention on Early Termination of Mandate Arbitrator’s inability to perform duties Arbitrator’s failure to perform duties within reasonable time Grounds If arbitrator does not withdraw, and If parties do not agree on termination Court intervention upon party application Mandatory provision Procedure 08.12.2018

Replacement of Arbitrators by State Courts In all cases of termination Withdrawal Party agreement Challenge Early termination according to Section 590 CCP Grounds Follows the appointment procedure agreed by the parties or provided by the law Procedure 08.12.2018

Any Questions? Contact details: Philipp Peters Weihburggasse 4 / 10 1010 Vienna, Austria T +43 1 512 95 00 F +43 1 512 95 00 95 E philipp.peters@kj-legal.com W www.kj-legal.com 08.12.2018