Austrian arbitration law in motion : the working of Austrian arbitration law in the context of International Institutional Arbitration / Christian Aschauer, Matthias Neumayr.

Format:

Book

Author/Creator:

Aschauer, Christian, author.

Neumayr, Matthias, author.

Language:

English

Subjects (All):

Arbitration agreements, Commercial.

Physical Description:

1 online resource (293 pages)

Edition:

1st ed.

Place of Publication:

Wien : Verlag Österreich, [2020]

Summary:

Univ.-Prof. Dr. Christian AschauerInstitut für Zivilverfahrensrecht und Insolvenzrecht, Universität Graz und Rechtsanwalt in WienUniv.-Prof. Dr. Matthias NeumayrUniversität Salzburg, Vizepräsident des OGH.

Contents:

Intro

Foreword

Content overview

Table of contents

Table of abbreviations

I. Sources of law for (international) arbitration

A. Sources of law based on party autonomy: arbitration agreements, arbitration rules and other party agreements

B. Sources of law based on sovereign legal acts

i. The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards

ii. The European Convention on International Commercial Arbitration (European Convention)

iii. EU law

iv. 577-618 ZPO and other provisions of autonomous Austrian law

C. Guidelines and recommendations (soft law)

II. The making of the arbitration agreement

A. Introduction: the significance of the arbitration agreement

B. Election between ad hoc arbitration / UNCITRAL arbitration / institutional arbitration

i. Ad hoc arbitration

ii. UNCITRAL arbitration

iii. Institutional arbitration

C. Choice between various arbitral institutions

D. Agreement on the seat of the arbitral tribunal - significance of the seat

E. Agreement on the language of the arbitration

F. Specifying the number of arbitrators and stipulation of special qualifications of arbitrators

G. Autonomy of arbitration agreements

H. Entering into the arbitration agreement

i. The law governing the arbitration agreement

ii. Substantive requirements under Austrian law

I. Subject-matter arbitrability ("Objektive Schiedsfähigkeit")

i. Definition and applicable law

ii. Subject-matter arbitrability under Austrian law

J. Capacity to arbitrate

ii. Capacity to arbitrate under Austrian law

K. Form of arbitration agreements

i. Introduction

ii. The law applicable to the form of the arbitration agreement.

iii. Form of arbitration agreements under domestic Austrian law - electronic arbitration agreements

L. Representation at the time of entering into the arbitration agreement

i. Representation by constitutive bodies or officers

ii. The law applicable to the power and the law applicable to the form of the power to enter into arbitration agreements

iii. Domestic Austrian law regarding the power to enter into arbitration agreements and its form

iv. Lack of good faith in relying on defects of form or of the power of attorney

M. Interpretation of arbitration agreements

N. Substantive scope of arbitration agreements

O. "Extending" arbitration agreements

P. Termination and expiry of arbitration agreements

Q. Med-arb clauses

III. Arbitration clauses in testamentary dispositions and articles of association

A. Testamentary dispositions

B. Arbitration clauses in "articles of association or incorporation"

IV. Demarcation of jurisdiction between arbitral tribunals and state courts

A. Introduction: the significance of disputes on jurisdiction

B. Disputes on jurisdiction before state courts

C. Disputes on jurisdiction before arbitral tribunals

V. Initiating arbitral proceedings

A. Introduction: avoiding / preparing for arbitration

B. Notice of Arbitration v. Request for Arbitration (Statement of Claim)

C. Contents of the Request for Arbitration (Statement of Claim)

i. Precise designation of the parties, including details of their corporate form, addresses and contact information

ii. Provision of counsel's contact details and potentially power of attorney

iii. Cause of action and specific relief requested

iv. Details or estimate of amount in dispute

v. Details of arbitration agreement

vi. Underlying contract.

vii. Information on constitution of the arbitral tribunal and/or nomination of arbitrator

viii. Place of arbitration and language of arbitration

ix. Miscellaneous

D. Filing of a Request for Arbitration or Statement of Claim with an arbitral institution - transmitting the Notice of Arbitration to the respondent

E. The arbitral institution serves the Request for Arbitration (Statement of Claim) on the respondent(s)

F. Answer to the Request for Arbitration (Answer to the Statement of Claim)

ii. Cure of defective arbitration agreements

iii. Comments on constitution of the arbitral tribunal and/or nomination of arbitrator

iv. Comments on carrying out expedited proceedings

v. Comments on the place and language of arbitration

vi. Extension of time limits for filing the Answer

vii. Default in filing the Answer - passive respondents

viii. Miscellaneous

G. Counterclaim and set-off defence

i. Counterclaim

ii. Set-off defence

1. Jurisdiction of arbitral tribunal to rule on set-off claim

2. Point up to which defence of set-off may be asserted

H. Amendment of claims and new claims

I. Multi-party proceedings

i. Introduction: frequency of multi-party proceedings

ii. Initiating multi-party proceedings

1. ICC multi-party arbitration

2. VIAC multi-party arbitration

3. Ad hoc proceedings with more than two parties

VI. Constitution and legal status of arbitral tribunal

A. Introduction: importance of selection of arbitrators

B. Independence and impartiality of arbitral tribunal, including IBA Guidelines on Conflict of Interest in International Arbitration

C. Initiating contact and duty of disclosure

D. Nomination/appointment process

i. Single arbitrator or three-arbitrator tribunal

ii. Nomination/appointment process for sole arbitrator.

iii. Nomination/appointment process for three-member tribunal

iv. The appointment process at the OGH

E. Constitution of arbitral tribunal in multi-party situations

F. "Arbitrators' contract" (receptum arbitri)

G. Rights and duties of arbitrators

H. Liability of arbitrators

i. Criminal liability of the arbitrator

ii. Civil liability of the arbitrator

VII. Financing of arbitration

A. Introduction: reducing costs through modern technologies and possibilities offered by third-party funding

B. Various items of costs

i. Costs of arbitral institution (including registration fee) and costs of arbitrators

ii. Legal fees and expenses of counsel

iii. Other costs of the proceedings

C. Payment of costs

D. Default by the parties in financing the arbitration

VIII. Case management

A. From transmission of the file to the Case Management Conference

B. Legal and institutional framework of case management

i. Autonomy of arbitral proceedings

ii. Party agreements

iii. Discretion of arbitral tribunal

iv. Fairness

v. Other mandatory rights of the parties

vi. Speed and cost-effectiveness

C. Decisions of procedural issues through procedural orders

D. Terms of Reference in ICC arbitral proceedings

E. Procedural Order No. 1

F. Procedural timetable

G. Bifurcation

H. Settlement negotiations and mediation

I. Coordination with parallel proceedings

J. Tribunal secretaries

IX. Challenge of arbitrators

A. Introduction: frequency and effects of challenges

B. Reasons for challenge

i. General standards

ii. Conflicts of interest

iii. Unilateral contacts (including contacts via social media)

iv. Violations of due process

v. Bias

C. Challenge procedure

i. Challenge proceedings before the arbitral institution or the arbitral tribunal

ii. Appeal to the OGH.

D. Appointment of the substitute arbitrator and continuation of the proceedings

E. Other reasons for early termination of the arbitrator's mandate

X. Settlement of the dispute and awards by consent - awards on agreed terms

A. Mediation proceedings

B. Settlement agreement and award by consent

XI. The taking of evidence

A. Introduction

i. The powers of the arbitral tribunal

ii. Mandatory rights of the parties and passive respondents

iii. Judicial assistance

iv. Cut-off dates

v. Burden and standards of proof

vi. The IBA Rules on the Taking of Evidence in International Arbitration (IBA Evidence Rules) and other sources of soft law

vii. New technologies and the internet

B. Documentary evidence

i. Introduction: the importance of documentary evidence

ii. Submission of documents in the possession of a party

iii. Production of documents by the opponent

C. Oral evidence (witnesses and party witnesses)

i. Introduction: broad concept of witnesses in international arbitration

ii. Witness preparation

iii. Summary of the procedure under the IBA Evidence Rules

iv. Further selected issues regarding witness evidence

1. Alternative methods

2. Psychological issues related to witness evidence

3. Social media

4. No duty of the witness to appear before the arbitral tribunal

5. False testimony and perjury

6. Technicalities, including translations, to be discussed at the pre-hearing conference

7. Videoconference technologies

D. Expert evidence

i. Introduction: importance of party-appointed experts

ii. Procedure for the taking of expert evidence

iii. Hybrid forms of expert evidence

E. Site visits

F. Evidence obtained in unlawful ways

XII. Interim measures

A. Introduction: different types of interim measures

B. Requirements for the ordering of interim measures.

C. Procedure for the ordering of interim measures.

Notes:

Description based on print version record.

Description based on publisher supplied metadata and other sources.

ISBN:

3-7046-8622-0

OCLC:

1202463017