Answer ... Section 611(2) paras 1 to 8 of the ACCP provides an exhaustive list of grounds for setting aside/challenging an arbitral award. The award may be set aside if:
- a valid arbitration agreement does not exist or one of the parties was under an incapacity to conclude a valid arbitration agreement under the law that governs its personal status, or the tribunal has denied its jurisdiction (Section 611(2) para 1);
- a party was not properly notified of the arbitration proceedings or of the appointment of an arbitrator, or for another reason was unable to presents its case (Section 611(2) para 2);
- the award decides a dispute or an issue which is not covered by the arbitration agreement or by the parties’ requests (Section 611(2) para 3);
- the composition or constitution of the tribunal was in breach of the parties’ agreement on this issue or in breach of the applicable ACCP provisions (Section 611(2) para 4);
- there has been a violation of public policy (ie, the manner in which the proceedings were conducted conflicts with the fundamental values of Austrian) (Section 611(2) para 5);
- there are grounds to file an action for revision under Section 530(1) paras 1 to 5 ACCP against a court judgment (Section 611(2) para 6);
- the subject matter of the dispute is non-arbitrable under Austrian law (Section 611(2) para 7); or
- the award itself conflicts with fundamental values of the Austrian legal system (substantive public policy) (Section 611(2) para 8).
The arbitrability of the subject matter of the dispute under Austrian law and conformity with fundamental values of the Austrian legal system (substantive public policy) must be observed ex officio at all stages of the court proceedings.
Answer ... Section 611(4) of the ACCP provides that the action to set aside an award must be filed within three months. This timeframe begins to run from the date on which the party receives the award or the supplemental award. The party which files the action may simultaneously request suspension of the enforcement procedure initiated by the opposing party.
The party seeking to set aside the award must specify the grounds for the challenge in detail. Save for the set-aside/challenge grounds set out in Section 611(2) paras 7 and 8 of the ACCP (see question 41), even severe violations remain without consequences if they have not been explicitly pleaded by a party.
Pursuant to Section 615 of the ACCP, the Austrian Supreme Court is the first (and only) instance for actions to set aside an award. Section 616 of the ACCP provides that the proceedings regarding the action to set aside an award and the request for a declaration of the existence or non-existence of an award shall be governed by the provisions which apply in proceedings before the first-instance courts.
Answer ... The parties cannot waive the right to challenge the award pursuant to Section 611 of the ACCP in advance. The grounds set out in Section 611(2) para 7 and 8 of the ACCP (see question 41) cannot be waived.