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

2. 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

3. 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

4. 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

5. 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
3 Ob 566/95

6. 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
6 Ob 511/84

7. Any Questions? Contact details: Philipp Peters Weihburggasse 4 / 10
1010 Vienna, Austria T F E W