WilmerHale Partner Franz Schwarz and Counsel Helmut Ortner author the Austria Report as part of the research project “Does a Right to a Physical Hearing Exist in International Arbitration?” by co-editors Giacomo Rojas Elgueta, James Hosking and Yasmine Lahlou, in collaboration with ICCA.
Excerpt: The Austrian Code of Civil Procedure (“ZPO”) contains a special part dedicated to arbitral proceedings (Sections 577 to 618 ZPO). This forms the Austrian lex arbitri.
Section 598 ZPO provides that each party in arbitration has a right to an “oral hearing”:
“Oral Hearings and Written Proceedings: Unless the parties have otherwise agreed, the arbitral tribunal shall decide whether to hold oral hearings, or whether the proceedings shall be conducted in writing. Where the parties have not excluded an oral hearing, the arbitral tribunal shall, upon motion of a party, hold an oral hearing at an appropriate stage of the proceedings”.
Based on the fundamental principle of party autonomy in arbitrations seated in Austria, this provision first clarifies that the parties can agree whether there will be an “oral hearing” in their arbitration proceedings or whether they want a documents-only arbitration. If the parties reach such an agreement, this will bind the tribunal. In the absence of such an agreement, Section 598 ZPO gives each party a right to an “oral hearing”. This right eliminates the tribunal’s discretion in this regard, mandating that “[w]here the parties have not excluded an oral hearing, the arbitral tribunal shall, upon
motion of a party, hold an oral hearing at an appropriate stage of the proceedings”.
