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

2. 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

3. 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

4. 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

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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. Any Questions? Contact details: Philipp Peters Weihburggasse 4 / 10
1010 Vienna, Austria T F E W