vienna as an international arbitration venue

www.viac.eu

Vienna as an international arbitration venue

Folie 2Vienna International Arbitral Centre – The new Vienna Rules 2013

VIAC•Founded in 1975

•Jurisdiction:

one of the parties has its place of business or usual residence outside Austria; or

disputes of an „international character“

•about 1,500 disputes since its formation


Development of Arbitration •Cold war period SIAC and VIAC preferred ADR

Accepted by foreign trade monopolies because of the neutral status of Austria and Sweden.

•Phase 1 ca.1990 – 1994 old laws remained in force

•Phase 2 from 1995 onwards adoption of the UNCITRAL Model Law and transformation into national law, UNCITRAL, ICC and LCIA accepted widely, formalistic interpretation of arbitration by national Courts

•Phase 3 appearance of new administering institutions , widespread acceptance of arbitration as ADR, improvement of enforcement of awards.


Growing number of VIAC-arbitrations:

0

10

20

30

40

50

60

70

80

2006 2007 2008 2009 2010 2011 2012


Number of parties in VIAC-arbitrations:

2008 2009 2010 2011 2012

111 130 155 156 193


Origin of parties (2012):with some overlap

25 % Austria

32 % Western Europe (except for Austria)

27 % East, South and Central Europe

4 % Mediterranean States

3 % Asia

7 % North and South America

2 % Other countries


Origin of arbitrators in VIAC-arbitrations (2012):

Countries of origin of foreign arbitrators (2012): Austria, Switzerland, Germany, Czech Republic, Hungary, Slovakia, Spain, China, Poland, Slovenia, United Kingdom, Ukraine, Bulgaria, United Arab Emirates, Greece, Rumania, Serbia, USA

Austria Foreign countries

65 % 35 %


Main Changes in the Vienna Rules 2013


Issues in Arbitration Proceedings

• Duration• Cost• Comprehensive dispute resolution• Quality of Arbitrators


1.Expediting measures Expedited procedure (Art 45)

Removal of arbitrators in case of inactivity (Art 21 para 2)

Announcement of anticipated issuance of the final award (Art 32)

2.The constitution of the arbitral tribunal in multi-party proceedings (Art 18)

3.Confirmation of the nomination of arbitrators (Art 19)

4.Joinder of third parties and consolidation of proceedings (Art 14 – 15)

5.Costs and the power of arbitral tribunal to order the non-paying party to reimburse the paying party for the advance on costs (Art 10, 42-44)


I. Expedited Procedure (Art 45)• Opt in – provision

• Shorter time limits for payment of the advance on costs 15 days

• Counterclaims admissible only until the time-limit for submission of the Reply to the Statement of Claim

• Sole arbitrator, unless parties agreed otherwise

• Shorter time-limits for the nomination of arbitrators 15 days

• Time-limit for the issuance of the final award 6 months


II. Expedited Procedure (Art 45)

Unless otherwise determined by the arbitral tribunal:

a) After Statement of Claim and Answer thereto, only one further exchange of written submissions

b) Factual arguments and written evidence attached to the written submissions

c) Only one oral hearing (if any)

d) No written submission after the oral hearing


Removal of arbitrators (Art 21 para 2)•either party may submit a request to the Secretariat:

if the arbitrator is prevented from exercising his tasks for more than a temporary period of time; or

if an undue delay of the proceedings occurs

•the Board may remove an arbitrator without a party‘s request: if the incapacity is not merely temporary; or if the arbitrator is not fulfilling his duties

•before deciding on the removal the Board must grant the parties and respective arbitrators the opportunity to comment


Announcement of the anticipated issuance of the final award (Art 32)

After closure of the proceedings, the arbitral tribunal must inform the Secretary General and the parties of the anticipated date by which the final award will be rendered.


I. Constitution of the arbitral tribunal in general (Art 17)

• The parties are free to decide on the manner of appointment• The parties are free to decide:

sole arbitrator; or panel of three arbitrators

• If no agreement on the number was reached, Board decides: complexity of case; or amount in dispute; parties‘ interest in expeditious and cost-efficient decision


II. Constitution of the arbitral tribunal in general (Art 17)

•Sole arbitrator: parties agree on an arbitrator; or appointment by the Board if the arbitrator is not nominated

within the time period

•Panel of arbitrators: Each party shall nominate his/her arbitrator; Otherwise: the Board appoints the arbitrator for the defaulting

party; Co-arbitrators shall jointly nominate chairman; Otherwise: the Board appoints the chairman


Constitution of the arbitral tribunal in multi-party proceedings (Art 18)

Principles of Art 17 apply with following supplements:

Panel of arbitrators:a) Regular case:

Each side shall jointly nominate their arbitrator, otherwise Board appoints the arbitrator for the defaulting party.

b) In exceptional cases: Appointment of all arbitrators by the Board (after granting the parties the opportunity to comment)


I. Confirmation of the Nomination of Arbitrators (Art 19)

Requirements:• Acceptance of office• Declaration of impartiality and independence• Declaration of availability• Declaration of submission to the Vienna Rules• No doubts as to impartiality or independence of the

arbitrator to carry out his mandate

Art 16 para 3


II. Confirmation of the Nomination of Arbitrators (Art 19)

• Confirmation by the Secretary General

• If deemed necessary by the Secretary General: confirmation by the Board

• If the Board refuses the confirmation: new nomination of the arbitrator by the party

• If the Board again refuses the confirmation of the new arbitrator: appointment by the Board


I. Joinder of Third Parties (Art 14)

The arbitral tribunal decides on the • admissibility of the joinder as well as on the• manner of such joinder

after

• hearing all parties and the third party to be joined and

• considering all relevant circumstances


II. Joinder of Third Parties (Art 14)

Joinder with Statement of Claim requires

•submission of the Statement of Claim to the Secretariat

•hearing of all parties and the third party

and allows

•third party to participate in the constitution of the arbitral tribunal if no arbitrator has yet been appointed (Art 18)


III. Joinder of Third Parties (Art 14)

The arbitral tribunal may return the Statement of Claim with a request for joinder of a third party to the Secretariat to be treated in separate proceedings, if joinder is not granted or not possible.

The Board may in this case order the new appointment of the arbitral tribunal(s) in the separated proceedings.


I. Consolidation of proceedings (Art 15) The Board decides on consolidation

after

• hearing the parties and the arbitrators already appointed and

• considering all relevant circumstances


II. Consolidation of proceedings (Art 15)

“Relevant circumstances” may be:

• compatibility of the arbitration agreements,

• respective stage of the proceedings,

• composition of the arbitral tribunal etc


III. Consolidation of proceedings (Art 15)

Requirements are:

• same place of arbitration in all of the arbitration agreements,

and

• agreement of the parties; or

• nomination or appointment of the same arbitrators


Advance on costs – power of arbitral tribunal to order the non-paying party to reimburse the paying party (Art 42)•The parties mutually undertake to bear the advance on costs in equal parts (para 2)

•If the advance on costs is not received in full within the time limit specified, the outstanding amount is to be paid by the opposing party (para 3)

•The arbitral tribunal may order the non-paying party to reimburse the paying party (provided it has jurisdiction over the main dispute) (para 4)


Main differences to other institutional rules


1.Conscious decision against emergency arbitration

2.Counterclaim may be filed until end of proceedings, but returned to Secretariat if it would lead to substantial delay of the proceedings (Art 9)

3.Power of arbitral tribunal to order non-paying party to reimburse paying party for advance on costs (Art 42)

4.Explicit rules on remission of arbitral proceedings to the arbitral tribunal in case arbitral award is set aside (Art 40)


Austrian Supreme Court as first and final instance

for annulment claims


I. Historical Background:• Austrian Arbitration Act 2006 based on the UNCITRAL

Model Law

• three court instances for annulment proceedings

• lengthy and expensive

• main competitors have shorter annulment proceedings

• Arbitration Amendment Act 2013: in force as from 1 January 2014


I. Austrian Supreme Court as first and final instance

(1) § 615 ACCP• for claims challenging an arbitral award, • claims regarding the declaration of the existence or non-

existence of an arbitral award and• for proceedings as to the formation of the arbitral tribunal

appointment of a(n) (substitute) arbitrator challenge of an arbitrator early termination of arbitrators‘ mandates appointment of substitute arbitrators


II. Austrian Supreme Court as first and final instance

(2) The current procedural levels remain in force for disputes involving a consumer and labor law disputes (§§ 616, 617 ACCP)

(3) County Courts remain competent for:

• recognition and enforcement of arbitral awards

• enforcement of interim and protective measures

• judicial assistance


III. Austrian Supreme Court as first and final instance

(4) The provisions of the Austrian Act on Non-Contentious Matters (“Außerstreitgesetz”) apply to disputes regarding the formation of the arbitral tribunal (§ 616 para 10 ACCP)

(5) Court fees: 5 % of the value in dispute (with a minimum fee of EUR 5,000)

(6) Appointment and challenge of an arbitrator and the early termination of an arbitrator‘s mandate: € 2,010

vienna as an international arbitration venue

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