Graf & Pitkowitz Rechtsanwalte GmbH


Graf & Pitkowitz was established in 1994 and is among the leading independent law firms in Austria with offices located in Vienna and Graz.

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Arbitration & ADR

Can eye rolling be a reason to challenge an arbitrator?
Austria | 24 December 2020

The Supreme Court recently dealt with the challenge of an arbitrator on the grounds that he had rolled his eyes during the pleading of a party's representative. Said arbitrator did not explicitly contest the accusation of having rolled his eyes. Nonetheless, he claimed to be able to objectively give a legal assessment of the facts of the case. This decision adds to the case law on the impartiality and independence of arbitrators, particularly with respect to an allegation of bias based on non-verbal reactions.

Supreme Court scrutinises admissibility of videoconference hearings
Austria | 29 October 2020

The Supreme Court recently determined the admissibility of conducting an arbitral hearing by means of a videoconference in the context of challenge proceedings. The court held that even where one party opposes, ordering a remote hearing in arbitration is admissible and does not constitute a reason to challenge the arbitral tribunal. This decision must be regarded as a precedential landmark decision as it appears to be the first decision of any supreme court worldwide to tackle this issue.

Supreme Court specifies reasoning standards for awards
Austria | 08 October 2020

Under longstanding Supreme Court case law, defective reasoning did not previously constitute a severe enough violation of procedural public policy to set aside an award. However, in recent years, the court has reversed this trend and repeatedly held that non-adherence to certain reasoning standards in arbitral awards can be a ground to set aside an award. In a recent decision, the Supreme Court has provided further guidance on the required reasoning standards for awards.

Supreme Court scrutinises decision awarding costs to losing party
Austria | 16 July 2020

The Supreme Court recently considered whether a final arbitral award on the reimbursement of costs violated Austrian public policy. The claimant had ultimately succeeded in the arbitration conducted under the rules of the International Court of Arbitration of the International Chamber of Commerce. Nevertheless, the cost decision ordered it to reimburse the respondent's costs. The Supreme Court dismissed the claimant's request to set aside the cost decision.

Supreme Court takes strict stance on conflict of interest
Austria | 16 January 2020

The Supreme Court recently considered whether the fact that an arbitrator and a party counsel in one arbitration acted as co-counsel in another unrelated arbitration cast doubt on the arbitrator's independence and impartiality and thus disqualified him from acting as arbitrator in the arbitration under review. In its decision, the court correctly acknowledged the reality of the Austrian arbitration scene, which results in frequent contact between practitioners.

Supreme Court evaluates hybrid arbitration agreement
Austria | 18 July 2019

The Supreme Court recently considered the validity of a hybrid arbitration agreement which provided for the formation of a tribunal under the International Chamber of Commerce Rules of Arbitration to arbitrate at the Vienna International Arbitral Centre. In this context, the court also considered the consequences of violating procedural rules agreed by the parties and the tribunal's failure to issue a reasoned award.

Counsel beware when submitting unspecified notices of arbitration
Austria | 19 July 2018

The Supreme Court recently considered whether a rather brief and general notice of arbitration in ad hoc proceedings containing a nomination had properly initiated the arbitration proceedings and was thus sufficient grounds to request the Supreme Court to appoint an arbitrator, following the respondents' refusal to nominate one. The decision is a soft reminder for counsel that sending out incomplete notices of arbitration or nomination requests can be a time-consuming and costly endeavour.

Vienna International Arbitral Centre issues new arbitration and mediation rules
Austria | 05 April 2018

The new Vienna International Arbitral Centre (VIAC) Rules of Arbitration and Mediation recently entered into force. They apply to all arbitration and mediation proceedings initiated after December 31 2017. The amendments to the VIAC rules allow for parties to conduct efficient and cost-effective arbitration and mediation proceedings, while offering enough flexibility when applying them in individual cases.

Supreme Court approves detour for setting aside proceedings
Austria | 21 December 2017

The Supreme Court recently considered whether proceedings (wrongly) commenced before an Austrian district court to set aside an arbitral award could nevertheless be continued. Notwithstanding the Supreme Court's exclusive jurisdiction regarding the setting aside of arbitral awards, the unusual facts of the case at hand led to the creation of an additional channel of appeals not provided for in the law.

VIAC expands its jurisdiction
Austria | 29 June 2017

The Vienna International Arbitral Centre (VIAC) recently obtained the right to administer domestic cases. The new law has received a warm welcome in Austria and is another sign of the quality of the VIAC's work and the confidence in its services. The VIAC has already established a working group to implement the proposed changes into the Rules of Arbitration and Conciliation in order to reflect this positive development.

No foul play in arbitral award regarding football licensing
Austria | 15 June 2017

The Supreme Court recently considered whether an arbitral award rendered in connection with licensing for the Austrian First Division Football League had to be set aside because of an alleged infringement of public policy. The decision is particularly interesting because the court had to tackle the sensitive issue of a possible infringement of substantive Austrian public policy in a situation where a party was forced to enter into an arbitration agreement with a dominant counterparty.

Supreme Court sets aside arbitral award for defective reasoning
Austria | 19 January 2017

The Supreme Court recently considered if and under what circumstances defective reasoning of an arbitral award may lead to its annulment under the Arbitration Law. In a deviation from previous case law and views expressed by the majority of Austrian legal scholars, the court held that the requirement of sound reasoning is a fundamental principle of the Austrian legal system, and thus that an arbitrator's failure to comply with this constitutes a violation of procedural public policy.

Arbitrators beware! No such thing as a free lunch
Austria | 25 August 2016

In a recent decision the Supreme Court considered whether a lunch attended by a sole arbitrator and a party's counsel could give rise to doubts regarding the arbitrator's impartiality and independence. This decision serves as a reminder that arbitrators should disclose all circumstances that could give rise to a challenge and proceed with the utmost care when a challenge has been dismissed.

Supreme Court strict on form but arbitration-friendly on refusal grounds under New York Convention
Austria | 26 May 2016

The Supreme Court recently considered several formal objections under the New York Convention, as well as several alleged grounds for refusal. The court adopted a rather strict approach with regard to the authentication requirement under the convention, while reiterating that the convention should generally be interpreted in favour of the recognition and enforcement of foreign awards.

Supreme Court instructs lower court to apply New York Convention
Austria | 30 July 2015

The Supreme Court recently issued clear instructions that when it comes to the recognition and enforcement of foreign arbitral awards, Austrian law must not be applied where it is superseded by international treaties, such as the New York Convention. However, the convention contains no specific rules regarding the service of documents. Therefore, the decisive issue is whether national rules may nevertheless be applied in such a situation.

Consequences of violating arbitrator's disclosure obligation
Austria | 19 February 2015

The Supreme Court recently considered, for the first time, the consequences of an arbitrator's failure to disclose circumstances that may give rise to doubts as to his or her impartiality and independence. In its decision, the court relied on both objective and subjective criteria – in particular, the weight of the non-disclosed fact and whether the non-disclosure was motivated by the arbitrator's desire to avoid a challenge.

Can a successfully challenged arbitrator be held liable for frustrated costs?
Austria | 27 November 2014

A recent Supreme Court decision analysed whether parties to arbitral proceedings are still bound to pay for part of an arbitrator's services where the arbitrator is successfully challenged because of his or her conduct. The court held that, unless the work is found to be worthless, the arbitrator is entitled to receive remuneration.

Supreme Court defines consumer protection laws applicable to arbitration
Austria | 22 May 2014

The Supreme Court has ruled, for the first time, on the applicability of certain consumer protection laws in the context of corporate disputes and clarified the applicable law for assessing the capacity of a consumer when a foreign legal entity is involved. This decision makes clear that the Supreme Court will side with consumers in such cases.

Supreme Court defines limits for challenge of arbitrator in set-aside proceedings
Austria | 12 September 2013

The Supreme Court recently ruled for the first time on an issue that has been fiercely debated among legal scholars – namely, whether (and to what extent) grounds for challenging an arbitrator can also be raised in set-aside proceedings. The court ruled that where a challenge becomes known after the arbitration award was issued, only "blatant" grounds can be invoked in set-aside proceedings.

Legislative amendment further increases Vienna's appeal as arbitration venue
Austria | 27 June 2013

Following the revision of the Vienna Rules, another important development recently took place that is aimed at further increasing the attractiveness of Vienna as a venue for international arbitration. With the introduction of the Arbitration Amendment Act 2013, Parliament adopted a significant change to arbitration law in Austria, under which annulment claims will now be decided directly by the Supreme Court.

New Vienna Rules geared to modernise arbitration
Austria | 28 March 2013

The Vienna International Arbitral Centre recently initiated a comprehensive review process aimed at modernising, overhauling and streamlining its rules. The process included a widely distributed user survey, a number of discussion rounds and a roadshow. The process is finally nearing completion and the centre is preparing to release the revisions publicly.

Supreme Court takes restrictive view on state immunity
Austria | 22 November 2012

The Supreme Court recently clarified the relationship between state immunity and enforcement of an arbitral award in a case concerning art loaned by the Czech Republic to a Vienna museum for an exhibition. The Czech Republic argued that the works of art under dispute were cultural objects serving the country's sovereign aims, and thus exempt from enforcement proceedings. The Supreme Court rejected this defence.

Supreme Court defines limits of arbitration agreements
Austria | 05 July 2012

The Supreme Court was recently faced with an inexecutable arbitration clause and clarified the interpretation of arbitration agreements and their boundaries. The court held that arbitration agreements must be interpreted primarily under procedural law; if an agreement refers to an arbitral institution which no longer exists, the agreement becomes inoperative only if it is impossible to reconstruct a comparable arbitration court.

Costly decision: court refuses to set aside arbitral award
Austria | 15 March 2012

The Vienna Commercial Court recently refused to set aside an arbitral award issued by a United Nations Commission on International Trade Law tribunal seated in Vienna that had awarded Danish-Polish Telecommunications Group €400 million against Telekomunikacja Polska. The court's decision is in line with the trend of Austrian case law to uphold arbitral awards.

Supreme Court sets requirements for arbitrability of corporate disputes
Austria | 08 December 2011

The Supreme Court recently handed down a decision relating to the arbitrability of shareholder disputes in which it generally confirmed their arbitrability, but declared them to be subject to certain criteria. The decision is in line with the general approach to uphold arbitral awards taken by the Supreme Court since the introduction of the arbitration law. In fact, only in rare cases has the court set aside arbitral awards.