Ordre Public and Arbitration under Austrian Law Austrian/Polish Twin Conference 3 December 2010 Philipp Peters, Attorney-at-Law

Ordre Public Violations as Grounds for Challenge No corresponding provision in the UNCITRAL Model Law Relevance of procedural ordre public disputed prior to revision of 2006 Much narrower than challenge grounds under Art 34(2)(iv) ML Conduct of procedure in violation of fundamental principles of procedural principles Relevant irrespective of impact on outcome of the arbitration Consideration only upon party application Procedural Ordre Public Basic principles of the Constitution, of criminal, private and procedural as well as public law Narrower than mandatory law Relevance of the outcome of the arbitration Consideration ex officio Substantive 24.04.2019

Violation of Procedural Ordre Public Inconsistency of the award Seemingly arbitrary decisions stating no reasons Failure to take any evidence Disregard of res judicata Participation of a party under legal incapacity Violation of impartiality and independence 24.04.2019

No Violation of Procedural Ordre Public Decision rendered without deliberation meetings involving all three arbitrators Chairman consulted separately with each co-arbitrator OGH 26/04/2006 3 Ob 211/05h (Decision ex aequo et bono without authorization from the parties) OGH denied challenge with reference to substantive ordre public OGH 18/11/1982 8 Ob 520/82 Allegation that award is based on false testimony Witness had given conflicting statements OGH 26/01/2005 3 Ob 221/04b Rejection of set-off claim due to non-payment of separate cost advance OGH 20/10/2004 3 Ob 73/04p 24.04.2019

Violation of Substantive Ordre Public Award of capitalized interest of 0,2% per day OGH 26/01/2005 3 Ob 221/04b Substantial violations of fundamental European Law Violation of EU Competition Law OGH 23/02/1998 3 Ob 115/95 Violations of Consumer, Labor and Tenancy Law Working Group Commentary Violation of basic constitutional rights In this case, no such violation was found to have occured OGH 31.8.1995 3 Ob 566/95 24.04.2019

No Violation of Substantive Ordre Public “Mere” incorrect legal assessment of the matter OGH 18/09/1991 1 Ob 582/91 Granting of damages based on currency devaluation OGH 28/10/1924 1 Ob 669/24 Application of periods of limitation in foreign law that deviate from Austrian law Decision does not relate to arbitration OGH 28/07/1998 1 Ob 317/97t The application of foreign statutory interest rates in the amount of 26% OGH 05.12.1985 6 Ob 511/84 24.04.2019

Any Questions? Contact details: Philipp Peters Weihburggasse 4 / 10 1010 Vienna, Austria T +43 1 512 95 00 F +43 1 512 95 00 95 E philipp.peters@kj-legal.com W www.kj-legal.com 24.04.2019