Court Decisions

The court decisions available on this website interpret and apply the New York Convention. These court decisions are in most cases published in the Yearbook Commercial Arbitration since its Volume I (1976). 

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The court decisions available on this website interpret and apply the New York Convention.

  1. Most decisions are reported in the Yearbook Commercial Arbitration, published by ICCA since 1976, and are numbered as in the Yearbook (e.g., US no. 954).

  2. Other decisions are indicated by country, date, and a short name (e.g., UK 18 June 2020 Alexander Brothers).

Court decisions can be searched by country and by topic.

Court Decisions

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  • Excerpt Topics
    AUSTRIA 2024-1

    Oberster Gerichtshof, 8 September 2022, 3 Ob 80/22v

    (S* SE (in fact: Strabag SE) v. State of Libya)

    501

    The court discusses questions relating to the general approach taken by the Convention to the grounds for refusal of recognition and enforcement, including its pro-enforcement bias, as well as the system of the Convention, under which recognition and enforcement may only be denied on seven listed grounds and the petitioner has only the obligations set out in Art. IV.

    Grounds are exhaustive
    502

    The court discusses the principle that the merits of the award may not be reviewed and that the court may only carry out a limited review of the award to ascertain grounds for refusal.

    No re-examination of the merits of the arbitral award
    511

    Due process: The court discusses various irregularities affecting due process, including letters not sent, names of arbitrators or experts not communicated, language of proceedings and communications, etc.

    "Otherwise unable to present his case"
    512 Ground c: Excess by arbitrator of his authority - Excess of authority
    523

    Public policy: The court discusses alleged violations of a fundamental rule of due process in the arbitration on the recognition and enforcement of an arbitral award, including the failure to communicate the names of the arbitrators, the failure to send copies of reports or letters filed in the arbitration, etc.

    Irregularities in the arbitral procedure (see also Art. V(1)(b))
    524

    Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.

    Other cases
  • Excerpt Topics
    AUSTRIA 37

    The Supreme Court affirmed the decisions of the lower courts that had denied recognition and enforcement of an award of the International Court of Arbitration at the Belorussian Chamber of Commerce and Industry. The Court referred to earlier decisions in which it had held that while it was in principle admissible for two arbitrators to exchange bilateral written communications, this should not result in the de facto exclusion of the third arbitrator from the deliberations, since the participation of all arbitrators was an essential requirement of arbitration.

    Oberster Gerichtshof, 19 November 2019

    (R v.  P GmbH)

    511

    Due process: The court discusses various irregularities affecting due process, including letters not sent, names of arbitrators or experts not communicated, language of proceedings and communications, etc.

    "Otherwise unable to present his case"
    AUSTRIA 36

    Oberster Gerichtshof, 29 August 2019, (C SA v. E SA, et al.), 6 Ob 142/19d

    The Supreme Court held that an ICC arbitration pending in Brazil constituted the main proceeding providing the basis for the interim injunction sought by the claimant under the Austrian Enforcement Act (EO). It was irrelevant that the some of the defendants, managing directors of the other defendants, were not parties to the Brazilian arbitration, since the Court had held in an earlier decision that an interim injunction securing claims against a company could also be directed against its managing director, even if the applicant had no separate claim against the managing director.

    Oberster Gerichtshof, 29 August 2019

    (C SA v. E SA, et al.)

    101

    The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.

    Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)
    228

    Related court proceedings: The court discusses whether provisional measures, such as the pre-award attachment of assets, are compatible with the Convention.

    Pre-award attachment and other provisional measures
  • Excerpt Topics
    AUSTRIA 35

    Austria No. 35. D v. C, Oberster Gerichtshof, Case No. 3Ob153/18y, 19 December 2018

    Oberster Gerichtshof, 19 December 2018 

    D v. C Limited

    404

    The court discusses issues relating to the manner of authentication and certification of the award and/or arbitration agreement.

    Authentication and certification
    505 Incapacity of party
    506

    Invalidity of the arbitration agreement: The court discusses the law applicable to the validity of the arbitration agreement at the enforcement stage.

    Law applicable to the arbitration agreement
    507

    Invalidity of the arbitration agreement: The court discusses other cases of invalidity of the arbitration agreement, including that there was no agreement at all or that the party was not a signatory thereto, that the incorrect arbitral institution was chosen, etc.

    Miscellaneous cases regarding the arbitration agreement
    511

    Due process: The court discusses various irregularities affecting due process, including letters not sent, names of arbitrators or experts not communicated, language of proceedings and communications, etc.

    "Otherwise unable to present his case"
    513 Ground d: Irregularity in the composition of the arbitral tribunal or arbitral procedure
    518

    Public policy: The court discusses the meaning of (international as compared to domestic) public policy, generally defined as the basic notions of morality and justice of the enforcement State.

    Paragraph 2 - Distinction domestic-international public policy
    524

    Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.

    Other cases
  • Excerpt Topics
    AUSTRIA 34

    Austria No. 34. C v. F GmbH et al., Oberster Gerichtshof, 3Ob10/17t, 7 June 2017

    502

    The court discusses the principle that the merits of the award may not be reviewed and that the court may only carry out a limited review of the award to ascertain grounds for refusal.

    No re-examination of the merits of the arbitral award
    511

    Due process: The court discusses various irregularities affecting due process, including letters not sent, names of arbitrators or experts not communicated, language of proceedings and communications, etc.

    "Otherwise unable to present his case"
    512 Ground c: Excess by arbitrator of his authority - Excess of authority
    513 Ground d: Irregularity in the composition of the arbitral tribunal or arbitral procedure
    518

    Public policy: The court discusses the meaning of (international as compared to domestic) public policy, generally defined as the basic notions of morality and justice of the enforcement State.

    Paragraph 2 - Distinction domestic-international public policy
    524

    Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.

    Other cases
    AUSTRIA 33

    Austria 33. K Ltd v. S GmbH, Oberster Gerichtshof, 29 March 2017, 3 Ob 20/17p

    404

    The court discusses issues relating to the manner of authentication and certification of the award and/or arbitration agreement.

    Authentication and certification
    AUSTRIA 32

    Austria 32. T GesmbH v. O, Inc., USA, Oberster Gerichtshof, 1 March 2017, 5 Ob 72/16y

    220

    The court discusses how to interpret the Convention’s requirement that the agreement is not null and void etc., as well as specific cases of invalidity: e.g., lack of consent (misrepresentation, duress, or fraud), vague wording of the arbitral clause; other terms of the contract contradict the intention to arbitrate, etc.

    "Null and void", etc.
  • Excerpt Topics
    AUSTRIA 31

    Austria 31. F GmbH v. Q Ltd, Oberster Gerichtshof, 19 October 2016, 7 Nc 18/16f

    220

    The court discusses how to interpret the Convention’s requirement that the agreement is not null and void etc., as well as specific cases of invalidity: e.g., lack of consent (misrepresentation, duress, or fraud), vague wording of the arbitral clause; other terms of the contract contradict the intention to arbitrate, etc.

    "Null and void", etc.
    AUSTRIA 30

    Austria 30. K Ltd v. (1) S GmbH and (2) H., Oberster Gerichtshof, 3Ob208/15g, 17 February 2016

    402

    The court discusses how to determine whether the document supplied is an award capable of being recognized and enforced, including whether the award is duly authenticated, and whether a copy is duly certified; whether a prior interim and/or partial award should be supplied together with the final award.

    Original or copy arbitral award
    404

    The court discusses issues relating to the manner of authentication and certification of the award and/or arbitration agreement.

    Authentication and certification
    406

    The court discusses issues relating to the requirements of the translation (translation by sworn translator, translation of entire award etc.) and whether a translation is necessary.

    Translation (paragraph 2)
    503

    The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.

    Burden of proof on respondent
    507

    Invalidity of the arbitration agreement: The court discusses other cases of invalidity of the arbitration agreement, including that there was no agreement at all or that the party was not a signatory thereto, that the incorrect arbitral institution was chosen, etc.

    Miscellaneous cases regarding the arbitration agreement
    509

    Due process: The court discusses what constitutes “proper notice” of the appointment of the arbitrators or of the arbitration proceedings.

    "Proper notice"
    513 Ground d: Irregularity in the composition of the arbitral tribunal or arbitral procedure
    518

    Public policy: The court discusses the meaning of (international as compared to domestic) public policy, generally defined as the basic notions of morality and justice of the enforcement State.

    Paragraph 2 - Distinction domestic-international public policy
    524

    Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.

    Other cases
  • Excerpt Topics
    AUSTRIA 29

    Austria 29. Kinve Solar Power Co., Ltd v. Sun Value GmbH et al., Landesgericht, Ried im Innkreis, 24 June 2015

    401

    The court discusses the general conditions the Convention imposes on a petitioner for seeking recognition and enforcement of an arbitral award – namely, the submission of the original arbitration agreement or arbitral award or a certified copy thereof – and examines in general whether these conditions were complied in the case at issue.

    Conditions to be fulfilled by petitioner in general
    502

    The court discusses the principle that the merits of the award may not be reviewed and that the court may only carry out a limited review of the award to ascertain grounds for refusal.

    No re-examination of the merits of the arbitral award
    503

    The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.

    Burden of proof on respondent
    507

    Invalidity of the arbitration agreement: The court discusses other cases of invalidity of the arbitration agreement, including that there was no agreement at all or that the party was not a signatory thereto, that the incorrect arbitral institution was chosen, etc.

    Miscellaneous cases regarding the arbitration agreement
    509

    Due process: The court discusses what constitutes “proper notice” of the appointment of the arbitrators or of the arbitration proceedings.

    "Proper notice"
    513 Ground d: Irregularity in the composition of the arbitral tribunal or arbitral procedure
    518

    Public policy: The court discusses the meaning of (international as compared to domestic) public policy, generally defined as the basic notions of morality and justice of the enforcement State.

    Paragraph 2 - Distinction domestic-international public policy
    524

    Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.

    Other cases
    AUSTRIA 27

    Austria 27. Oberster Gerichtshof, 18 February 2015

    101

    The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.

    Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)
    500

    The court discusses the overall scheme and/or pro-enforcement bias of the Convention.

    Grounds for refusal of enforcement in general
  • Excerpt Topics
    AUSTRIA 28

    Austria 28. Kinve Solar Power Co., Ltd v. Sun Value GmbH et al., Landesgericht, Ried Im Innkreis, Case No. 6 R 80/14b, 27 August 2014

    509

    Due process: The court discusses what constitutes “proper notice” of the appointment of the arbitrators or of the arbitration proceedings.

    "Proper notice"
  • Excerpt Topics
    AUSTRIA 26

    Austria 26. Oberster Gerichtshof, 16 April 2013

    303

    The court discusses the conditions under which a party may be estopped from raising a ground for refusal of enforcement under the Convention or has waived the right to raise it.

    Estoppel/waiver
    514 Ground e: Award not binding, suspended or set aside - "Binding"
  • Excerpt Topics
    AUSTRIA 25

    Austria 25. Oberster Gerichtshof, 18 April 2012

    511

    Due process: The court discusses various irregularities affecting due process, including letters not sent, names of arbitrators or experts not communicated, language of proceedings and communications, etc.

    "Otherwise unable to present his case"
  • Excerpt Topics
    AUSTRIA 24

    Austria 24. Oberster Gerichtshof, 24 August 2011

    402

    The court discusses how to determine whether the document supplied is an award capable of being recognized and enforced, including whether the award is duly authenticated, and whether a copy is duly certified; whether a prior interim and/or partial award should be supplied together with the final award.

    Original or copy arbitral award
    404

    The court discusses issues relating to the manner of authentication and certification of the award and/or arbitration agreement.

    Authentication and certification
    502

    The court discusses the principle that the merits of the award may not be reviewed and that the court may only carry out a limited review of the award to ascertain grounds for refusal.

    No re-examination of the merits of the arbitral award
    507

    Invalidity of the arbitration agreement: The court discusses other cases of invalidity of the arbitration agreement, including that there was no agreement at all or that the party was not a signatory thereto, that the incorrect arbitral institution was chosen, etc.

    Miscellaneous cases regarding the arbitration agreement
    514 Ground e: Award not binding, suspended or set aside - "Binding"
    518

    Public policy: The court discusses the meaning of (international as compared to domestic) public policy, generally defined as the basic notions of morality and justice of the enforcement State.

    Paragraph 2 - Distinction domestic-international public policy
    524

    Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.

    Other cases
    601

    The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.

    Adjournment of decision on enforcement
  • Excerpt Topics
    AUSTRIA 23

    Austria 23. Oberster Gerichtshof, 1 September 2010

    503

    The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.

    Burden of proof on respondent
    508 Ground b: Violation of due process in general
  • Excerpt Topics
    AUSTRIA 22

    Austria 22. Oberster Gerichtshof, 22 July 2009

    301

    The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.

    Procedure for enforcement in general
    524

    Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.

    Other cases
    704

    More-favorable right provision: The court discusses the application of the 1961 European Convention together with the New York Convention, and the relationship between the two treaties.

    European Convention of 1961
    AUSTRIA 21

    Austria 21. Oberster Gerichtshof, 30 March 2009

    201

    The court discusses whether the dispute falls within the wording of the arbitration agreement; and whether claims in tort fall within the scope of the agreement.

    Scope of arbitration agreement
    205

    The court discusses the first alternative requirement of Art. II(2) that the arbitral award is “signed by the parties”.

    Signatures
    217

    The court discusses the meaning and effect of the referral of the resolution of disputes to arbitration, including: who can ask for referral and when, whether a party has waived its right to request arbitration, the defense that there was no contract at all; whether there was a condition precedent to the commencement of arbitration (e.g. mediation), stay of proceedings v. compelling arbitration, and national procedural specificities such as remand and removal (US), effect of class action. etc.

    Referral to arbitration in general
    221

    The court discusses which law – lex fori, lex contractus, law of the State where the award will be made – applies specifically to determining whether an agreement to arbitrate is “null and void etc.“, and, by extension, which law applies to determining the validity of arbitration agreements.

    Law applicable to "Null and void", etc. (for formal validity and applicable law, see Art. II, ¶204)
    222

    The court discusses the principle of competence-competence, including whether the parties “intended to have arbitrability decided by an arbitrator”, and the separability of the arbitration agreement from the main contract.

    Arbitrator's competence and separability of the arbitration clause
  • Excerpt Topics
    AUSTRIA 20

    Austria 20. Oberster Gerichtshof, 3 September 2008

    403

    The court discusses issues relating to the requirement to supply the original arbitration agreement or a copy thereof to prove the prima facie validity of the arbitration agreement, as well as the application of more favorable municipal laws that do not provide for this requirement.

    Original or copy arbitration agreement
    404

    The court discusses issues relating to the manner of authentication and certification of the award and/or arbitration agreement.

    Authentication and certification
    702

    More-favorable right provision: The court discusses examples of domestic laws of countries where enforcement of foreign awards is more favorable.

    Domestic law on enforcement of foreign award
    AUSTRIA 19

    Austria 19. Oberster Gerichtshof, 26 August 2008

    201

    The court discusses whether the dispute falls within the wording of the arbitration agreement; and whether claims in tort fall within the scope of the agreement.

    Scope of arbitration agreement
    227

    Multi-party disputes: The court discusses whether related court proceedings may absorb (by vis atractiva) arbitration proceedings.

    Concurrent court proceedings ("indivisibility")
  • Excerpt Topics
    AUSTRIA 18

    Austria 18. Oberster Gerichtshof, 23 October 2007

    101

    The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.

    Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)
    405

    The court discusses issues relating to the moment when the documents that are required for seeking recognition and enforcement must be supplied, and whether any defect can be cured later in the enforcement proceeding.

    "At the time of application"
    503

    The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.

    Burden of proof on respondent
    505 Incapacity of party
    506

    Invalidity of the arbitration agreement: The court discusses the law applicable to the validity of the arbitration agreement at the enforcement stage.

    Law applicable to the arbitration agreement
    511

    Due process: The court discusses various irregularities affecting due process, including letters not sent, names of arbitrators or experts not communicated, language of proceedings and communications, etc.

    "Otherwise unable to present his case"
    513 Ground d: Irregularity in the composition of the arbitral tribunal or arbitral procedure
  • Excerpt Topics
    AUSTRIA 16

    Austria 16. Oberster Gerichtshof, 26 April 2006

    101

    The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.

    Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)
    301

    The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.

    Procedure for enforcement in general
    402

    The court discusses how to determine whether the document supplied is an award capable of being recognized and enforced, including whether the award is duly authenticated, and whether a copy is duly certified; whether a prior interim and/or partial award should be supplied together with the final award.

    Original or copy arbitral award
    406

    The court discusses issues relating to the requirements of the translation (translation by sworn translator, translation of entire award etc.) and whether a translation is necessary.

    Translation (paragraph 2)
    513 Ground d: Irregularity in the composition of the arbitral tribunal or arbitral procedure
    518

    Public policy: The court discusses the meaning of (international as compared to domestic) public policy, generally defined as the basic notions of morality and justice of the enforcement State.

    Paragraph 2 - Distinction domestic-international public policy
    702

    More-favorable right provision: The court discusses examples of domestic laws of countries where enforcement of foreign awards is more favorable.

    Domestic law on enforcement of foreign award
    AUSTRIA 17

    Austria 17. Oberster Gerichtshof, 26 April 2006

    504 Paragraph 1 - Ground a: Invalidity of the arbitration agreement - Agreement referred to in Art. II
    505 Incapacity of party
    506

    Invalidity of the arbitration agreement: The court discusses the law applicable to the validity of the arbitration agreement at the enforcement stage.

    Law applicable to the arbitration agreement
  • Excerpt Topics
    AUSTRIA 15

    Austria 15. Oberster Gerichtshof, 24 August 2005

    101

    The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.

    Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)
    403

    The court discusses issues relating to the requirement to supply the original arbitration agreement or a copy thereof to prove the prima facie validity of the arbitration agreement, as well as the application of more favorable municipal laws that do not provide for this requirement.

    Original or copy arbitration agreement
    503

    The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.

    Burden of proof on respondent
    505 Incapacity of party
    506

    Invalidity of the arbitration agreement: The court discusses the law applicable to the validity of the arbitration agreement at the enforcement stage.

    Law applicable to the arbitration agreement
    AUSTRIA 14

    Austria 14. Oberster Gerichtshof, 31 March 2005

    511

    Due process: The court discusses various irregularities affecting due process, including letters not sent, names of arbitrators or experts not communicated, language of proceedings and communications, etc.

    "Otherwise unable to present his case"
    AUSTRIA 13

    Austria 13. Oberster Gerichtshof, 26 January 2005

    500

    The court discusses the overall scheme and/or pro-enforcement bias of the Convention.

    Grounds for refusal of enforcement in general
    502

    The court discusses the principle that the merits of the award may not be reviewed and that the court may only carry out a limited review of the award to ascertain grounds for refusal.

    No re-examination of the merits of the arbitral award
    507

    Invalidity of the arbitration agreement: The court discusses other cases of invalidity of the arbitration agreement, including that there was no agreement at all or that the party was not a signatory thereto, that the incorrect arbitral institution was chosen, etc.

    Miscellaneous cases regarding the arbitration agreement
    512 Ground c: Excess by arbitrator of his authority - Excess of authority
    516

    Award not binding, suspended or set aside: The court discusses the difference between the exclusive jurisdiction to set aside an award (primary jurisdiction), which belongs to the courts of the country of origin of the award, and the jurisdiction of all other courts to recognize and enforce the award (secondary jurisdiction); issues relating to the determination of the “competent authority”; and whether an award that has been set aside in the country of origin can be enforced in another State under the Convention.

    "Set aside"
    518

    Public policy: The court discusses the meaning of (international as compared to domestic) public policy, generally defined as the basic notions of morality and justice of the enforcement State.

    Paragraph 2 - Distinction domestic-international public policy
    524

    Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.

    Other cases
    601

    The court discusses the conditions for granting adjournment of a proceeding relating to the recognition and enforcement of an arbitral award, and the court’s discretionary power to do so, as well the determination of “suitable security” and the power to request it.

    Adjournment of decision on enforcement
    703(A) Multilateral treaties
    704

    More-favorable right provision: The court discusses the application of the 1961 European Convention together with the New York Convention, and the relationship between the two treaties.

    European Convention of 1961
    704(B) Bilateral Treaties
  • Excerpt Topics
    AUSTRIA 12

    Austria 12. Oberster Gerichtshof, 19 February 2004

    203-204 Formal validity, uniform law and municipal law
    221

    The court discusses which law – lex fori, lex contractus, law of the State where the award will be made – applies specifically to determining whether an agreement to arbitrate is “null and void etc.“, and, by extension, which law applies to determining the validity of arbitration agreements.

    Law applicable to "Null and void", etc. (for formal validity and applicable law, see Art. II, ¶204)
    222

    The court discusses the principle of competence-competence, including whether the parties “intended to have arbitrability decided by an arbitrator”, and the separability of the arbitration agreement from the main contract.

    Arbitrator's competence and separability of the arbitration clause
  • Excerpt Topics
    AUSTRIA 11

    Austria 11. Oberster Gerichtshof, 30 November 1994

    101

    The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.

    Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)
    401

    The court discusses the general conditions the Convention imposes on a petitioner for seeking recognition and enforcement of an arbitral award – namely, the submission of the original arbitration agreement or arbitral award or a certified copy thereof – and examines in general whether these conditions were complied in the case at issue.

    Conditions to be fulfilled by petitioner in general
    507

    Invalidity of the arbitration agreement: The court discusses other cases of invalidity of the arbitration agreement, including that there was no agreement at all or that the party was not a signatory thereto, that the incorrect arbitral institution was chosen, etc.

    Miscellaneous cases regarding the arbitration agreement
    513 Ground d: Irregularity in the composition of the arbitral tribunal or arbitral procedure
  • Excerpt Topics
    AUSTRIA 10

    Austria 10. Oberster Gerichtshof, 25 June 1992

    104

    The court discusses whether the Convention applies to domestic arbitration and to proceedings for the setting aside of domestic awards. 

    Convention's applicability in other cases
    516

    Award not binding, suspended or set aside: The court discusses the difference between the exclusive jurisdiction to set aside an award (primary jurisdiction), which belongs to the courts of the country of origin of the award, and the jurisdiction of all other courts to recognize and enforce the award (secondary jurisdiction); issues relating to the determination of the “competent authority”; and whether an award that has been set aside in the country of origin can be enforced in another State under the Convention.

    "Set aside"
  • Excerpt Topics
    AUSTRIA 9

    Austria 9. Oberster Gerichtshof, 22 May 1991

    203-204 Formal validity, uniform law and municipal law
    401

    The court discusses the general conditions the Convention imposes on a petitioner for seeking recognition and enforcement of an arbitral award – namely, the submission of the original arbitration agreement or arbitral award or a certified copy thereof – and examines in general whether these conditions were complied in the case at issue.

    Conditions to be fulfilled by petitioner in general
    503

    The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.

    Burden of proof on respondent
  • Excerpt Topics
    AUSTRIA 8

    Austria 8. Oberster Gerichtshof, 9 September 1987, 3 Ob. 80/87

    202

    The court discusses the form in which the arbitration agreement is expressed: short form arbitration clause, reference to rules of institution, etc.

    Contents of arbitration agreement
    506

    Invalidity of the arbitration agreement: The court discusses the law applicable to the validity of the arbitration agreement at the enforcement stage.

    Law applicable to the arbitration agreement
    507

    Invalidity of the arbitration agreement: The court discusses other cases of invalidity of the arbitration agreement, including that there was no agreement at all or that the party was not a signatory thereto, that the incorrect arbitral institution was chosen, etc.

    Miscellaneous cases regarding the arbitration agreement
    704(B) Bilateral Treaties
  • Excerpt Topics
    AUSTRIA 7

    Austria 7. Oberster Gerichtshof, 11 May 1983

    518

    Public policy: The court discusses the meaning of (international as compared to domestic) public policy, generally defined as the basic notions of morality and justice of the enforcement State.

    Paragraph 2 - Distinction domestic-international public policy
    524

    Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.

    Other cases
  • Excerpt Topics
    AUSTRIA 4

    Austria 4. Oberster Gerichtshof, 1 February 1980

    516

    Award not binding, suspended or set aside: The court discusses the difference between the exclusive jurisdiction to set aside an award (primary jurisdiction), which belongs to the courts of the country of origin of the award, and the jurisdiction of all other courts to recognize and enforce the award (secondary jurisdiction); issues relating to the determination of the “competent authority”; and whether an award that has been set aside in the country of origin can be enforced in another State under the Convention.

    "Set aside"
  • Excerpt Topics
    AUSTRIA 6

    Austria 6. Oberster Gerichtshof, 21 February 1978

    101

    The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.

    Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)
    201

    The court discusses whether the dispute falls within the wording of the arbitration agreement; and whether claims in tort fall within the scope of the agreement.

    Scope of arbitration agreement
    202

    The court discusses the form in which the arbitration agreement is expressed: short form arbitration clause, reference to rules of institution, etc.

    Contents of arbitration agreement
    205

    The court discusses the first alternative requirement of Art. II(2) that the arbitral award is “signed by the parties”.

    Signatures
    208

    The court discusses arbitration agreements contained in a sales and purchase confirmation and whether a tacit acceptance thereof is sufficient.

    Sales or purchase confirmation
    301

    The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.

    Procedure for enforcement in general
    401

    The court discusses the general conditions the Convention imposes on a petitioner for seeking recognition and enforcement of an arbitral award – namely, the submission of the original arbitration agreement or arbitral award or a certified copy thereof – and examines in general whether these conditions were complied in the case at issue.

    Conditions to be fulfilled by petitioner in general
    403

    The court discusses issues relating to the requirement to supply the original arbitration agreement or a copy thereof to prove the prima facie validity of the arbitration agreement, as well as the application of more favorable municipal laws that do not provide for this requirement.

    Original or copy arbitration agreement
    503

    The court discusses the burden of proof of the grounds for refusing enforcement under the Convention.

    Burden of proof on respondent
    705

    The court discusses the relationship between the New York Convention, the Geneva Protocol on Arbitration Clauses of 1923, and the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927.

    Relationship with Geneva Treaties of 1923 and 1927
  • Excerpt Topics
    AUSTRIA 5

    Austria 5. Oberster Gerichtshof, 2 May 1972

    206

    The court discusses the second alternative requirement of Art. II(2) that the arbitration agreement is “contained in an exchange of letters or telegrams”.

    Exchange of letters or telegrams
    207

    The court discusses what more recent means of communication are also covered by the “exchange of letters or telegrams” alternative: telefax, email, e-commerce, etc.

    Means of communication for achieving the exchange in writing
    209 Incorporation by reference and standard conditions
    214-216 Field of application
  • Excerpt Topics
    AUSTRIA 2

    Austria 2. Oberster Gerichtshof, 17 November 1971

    203-204 Formal validity, uniform law and municipal law
    207

    The court discusses what more recent means of communication are also covered by the “exchange of letters or telegrams” alternative: telefax, email, e-commerce, etc.

    Means of communication for achieving the exchange in writing
    214-216 Field of application
    221

    The court discusses which law – lex fori, lex contractus, law of the State where the award will be made – applies specifically to determining whether an agreement to arbitrate is “null and void etc.“, and, by extension, which law applies to determining the validity of arbitration agreements.

    Law applicable to "Null and void", etc. (for formal validity and applicable law, see Art. II, ¶204)
    504 Paragraph 1 - Ground a: Invalidity of the arbitration agreement - Agreement referred to in Art. II
    506

    Invalidity of the arbitration agreement: The court discusses the law applicable to the validity of the arbitration agreement at the enforcement stage.

    Law applicable to the arbitration agreement
  • Excerpt Topics
    AUSTRIA 3

    Austria 3. Oberster Gerichtshof, 11 June 1969

    404

    The court discusses issues relating to the manner of authentication and certification of the award and/or arbitration agreement.

    Authentication and certification
    406

    The court discusses issues relating to the requirements of the translation (translation by sworn translator, translation of entire award etc.) and whether a translation is necessary.

    Translation (paragraph 2)
    521

    Public policy: The court discusses the consequences of the apparent or actual bias of an arbitrator on the recognition and enforcement of an arbitral award.

    Lack of impartiality of arbitrator
  • Excerpt Topics
    AUSTRIA 1

    Austria 1. Oberster Gerichtshof, 17 November 1965

    101

    The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.

    Award made in the territory of another (Contracting) State (paragraphs 1 and 3 - first or "reciprocity" reservation)
    112

    The court discusses whether the Convention may be applied retroactively and, if so, as of when: e.g., with the conclusion of the arbitration agreement, the commencement of arbitration, the rendition of the award.

    Retroactivity
    401

    The court discusses the general conditions the Convention imposes on a petitioner for seeking recognition and enforcement of an arbitral award – namely, the submission of the original arbitration agreement or arbitral award or a certified copy thereof – and examines in general whether these conditions were complied in the case at issue.

    Conditions to be fulfilled by petitioner in general
    405

    The court discusses issues relating to the moment when the documents that are required for seeking recognition and enforcement must be supplied, and whether any defect can be cured later in the enforcement proceeding.

    "At the time of application"
    705

    The court discusses the relationship between the New York Convention, the Geneva Protocol on Arbitration Clauses of 1923, and the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927.

    Relationship with Geneva Treaties of 1923 and 1927