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As a rule, a distinction is made between out-of-court procedures for settling disputes which are institutionalised in statutory form and those which function without a statutory basis.
Settlements of disputes provided for by statute include “praetorian” settlements, which take place with the involvement and participation of the courts but do not lead to a decision by the courts. According to the Austrian Code of Civil Procedure, a praetorian settlement presupposes an intended petition relating to existing conflicts which are resolved by one of the parties invoking the aid of the court in an attempt to settle the dispute amicably, with the aid and advice of a judge.
Another possible form of extra judicial settlement of disputes is the establishment of an enforceable notarial instrument. Details can be found of further statutory institutions of extra-judicial settlement of disputes such as arbitration tribunals, conciliation boards in housing matters, mediation in civil law matters (especially in family law), conciliation boards in telecommunications matters and local authority mediation offices under items A) to E) below. In addition to all these bodies, representatives of professional bodies, such as those of lawyers, notaries public, doctors of medicine and civil engineers, mediate in disputes between their members or in disputes between members and their client. Under F) further information can be found about the arbitration tribunals and conciliation boards of the Austrian associations of lawyers.
In addition to all these methods laid down by law, there are a number of non‑statutory methods of extra‑judicial settlement or avoidance of disputes, especially in consumer affairs. These include informal complaints departments of guilds and trade associations, conciliation committees in chambers of commerce, conciliation boards in which the Association for Consumer Information participates, a conciliation office for medical liability matters and so on. You can find more information about consumer protection and a list and description of extra judicial institutions in Austria by visiting the European Commission homepage (http://ec.europa.eu/consumers/redress/out_of_court/adrdb_en.htm).
Since 1 March 2003, Austria has also had a conciliation board for disputes relating to Austrian “.at” domains. These are disputes about ownership in “.at” domains, especially disputes about the right to use a name and rights relating to identification codes, trademarks, intellectual property and competition. Further information (in German and English) can be found on the website.
There is also an Internet Ombudsman who provides conciliation services in disputes and deals with complaints relating to forum shopping, i.e. shopping around to select a country of jurisdiction for a case relating to the Internet. The Ombudsman's services are available on payment of an annual membership fee (currently €25). Further information (in German and English) can be found on the website .
Sections 577 to 618 of the Austrian Code of Civil Procedure apply to all arbitration procedures involving arbitration tribunals based in Austria. The Code sets out the law on arbitration in general, making no distinction between purely domestic and international procedures, or between business disputes and other matters. There are also specific rules regarding groups needing special protection, such as consumers and employees.
In principle, all claims regarding assets that may be heard before ordinary courts may be settled by an arbitration agreement. Claims not relating exclusively to assets may be settled by arbitration if the parties are able to reach agreement. However, claims deriving from certain legal fields cannot objectively be settled by arbitration (basically claims involving family law and accommodation rights).
The arbitration tribunal may be called upon to rule only if the parties agree. The arbitration agreement must refer to a particular legal dispute or to future disputes arising from a particular legal relationship.
On matters of arbitration the parties are largely autonomous. They are free to decide whether to structure the procedure around their own rules or around specific rules of procedure, unless there are any mandatory requirements to the contrary. Mandatory requirements include the principle that the parties must be treated fairly and that every party has the right to be heard. The right of a party to representation by a person of his or her choice is inviolable.
As a rule, arbitration ends with an award that has the same objective and effect as a judgment in a normal civil case. Once the ruling has been served on the parties it has legal effect and may be enforced after a period of time that must be stipulated. The award ruling is an executory order, which can, if necessary, be enforced by the courts.
For certain reasons which are listed in the Code of Civil Procedure and cannot be waived, an ordinary court can reverse the arbitration award by means of a petition for reversal of the award. These reasons include denial of the right to a court hearing, a lack of due consent to arbitration, contravention of mandatory rules on arbitration, contravention of mandatory rules on arbitration and procedural public policy (ordre public), a lack of an objective basis for arbitration and contraventions of public policy (ordre public) with regard to substantive law.
In certain disputes relating to the Not-For-Profit Housing Associations Act (Wohnungsgemeinnützigkeitsgesetz) or the 2002 Property Act, which have to be decided in a court in non-contentious proceedings, where the local authorities in question have conciliation boards that deal with tenancy law disputes, local conciliation procedures have to be initiated before the matter can be referred to a court. The local authorities in Graz, Innsbruck, Klagenfurt, Leoben, Linz, Mürzzuschlag, Neunkirchen, Salzburg, St Pölten, Stockerau and Vienna currently have such facilities.
Rent law may concern the carrying out of maintenance and improvements, the legality of agreed rents or the distribution of overheads.
In such proceedings, it is mandatory to bring matters before an arbitration tribunal relating to a tenancy in one of the local authority areas where there is an arbitration tribunal. Such cases can therefore be brought before a court only if they had previously been brought before the local authority's conciliation board and the conciliation board had already made a decision or if proceedings had not been brought to a close within three months.
Hearings before the conciliation board are in principle held in camera. Only the parties to the proceedings have access to the records. Furthermore, certain documents are exempted from the right of access to records. This is the case where inspection of the contents of the files could harm the lawful interests of one of the parties or a third party. It also applies where local authority functions might be put at risk or if it would interfere with the purpose of the proceedings.
Representation by a lawyer is allowed, but is not mandatory.
Applications, petitions, notifications, complaints and other communications can be sent by any technical means available, including by telegraphic means, by telex, automatic data transfer or any other technological means. Applications can also be made electronically if the conciliation board in question has the required technological equipment.
However, in most cases hearings need to be held. The parties should appear in person (and not simply be represented by a lawyer), as this in itself encourages an amicable settlement of the dispute. As a rule this will present no difficulty, however, as the proceedings of the conciliation board take place in the local authority area where the rented property lies.
Conciliation proceedings in matters of tenancy are free of charge.
If the attempt to settle the dispute amicably is unsuccessful, the conciliation board has to make a decision on the application. If one of the parties is not satisfied with the conciliation board's decision, the party may ask for the case to be referred to a court within four weeks of the serving of the conciliation board's decision. The conciliation board's decision becomes ineffective once the case has been referred to court. Either of the parties may also bring the matter before a court if the proceedings before the conciliation board have not been concluded within three months. As soon as a request of this kind has been duly made, the conciliation board must suspend its proceedings.
If none of the parties has brought the matter before a court within four weeks of the serving of the conciliation board's decision, the conciliation board's decision becomes final. It then constitutes a writ of execution. It is then not possible to refer this tenancy question to a court; at this point the only rights of appeal and judicial remedies available are those provided for in enforcement proceedings.
We are dealing here with the solution of conflicts which fall under the jurisdiction of the ordinary courts. The Civil Law Mediation Act (Zivilrechts-Mediations-Gesetz, BGBl I 2003/29) sets out detailed rules on mediation in conflicts that fall under the jurisdiction of the ordinary civil courts. We can only speak of mediation within the meaning of this Act if the mediator is a qualified expert who uses recognised methods.
The mediator is legally required to be impartial and take special care to serve the parties without giving preferential treatment to either or any one of them (he must be even-handed with all of them). The structure of mediation proceedings is decided in principle by the conflicting parties, and this mediation agreement lays down the principles of the proceedings. The contents of the mediation discussions are confidential for all participants and, under section 320(4) of the Code of Civil Procedure (ZPO), mediators may not be called as witnesses in any subsequent judicial proceedings. Mediators are bound by the legal obligation of secrecy. If they infringe their obligation to secrecy they will face prosecution under criminal law. Only those persons entered in a special list may act as mediators. This guarantees that they have the required expert qualifications.
Legal representation is not mandatory, but the parties can be represented by a lawyer, unless otherwise agreed.
The aim of mediation is to achieve a consensus between the parties with the use of the mediator's techniques of communication. It will therefore be hard to mediate using means of electronic communication. There are obligatory costs attached to the use of mediators. The costs of a mediator do not depend on the extent of the matter in dispute but on the time invested by the mediator. The costs of mediation are in principle shared between the participants. The parties to the dispute agree on the distribution of costs during the course of the proceedings. There is in principle no provision for the granting of legal aid. In family matters, the Federal Ministry for Health, Family and Youth Affairs can make a contribution, depending on the family's income.
As the mediation procedure is voluntary, it may be terminated by the parties at any time, and the matter can be brought before an ordinary court. Under Section 22 of the Civil Law Mediation Act, mediation interrupts statutory limitation and other time limits in order to allow the rights and demands connected with the mediation to be articulated, where mediation begins and is conducted with the aid of a registered mediator. As a consequence, statutory limitation and other time limits only begin to run again once mediation has stopped.
The aim of mediation proceedings is to achieve consensus between the parties. This consensus cannot be enforced by a court of law; it is a suggested solution on which the court can later base its decision. Even after a solution has been worked out in mediation proceedings, the parties can take the matter before an ordinary court of law at any time.
The board deals with disputes relating to communication services. The procedure is primarily used for disputes relating to settlement of accounts or costs, but can also be used for complaints about the quality of services on offer. Complaints can be made both consumers and by pressure groups. However, conciliation is not obligatory.
The details of the procedure for settling disputes are laid down in the 2003 Telecommunications Act (TKG 2003). Section 122 TKG 2003 requires the regulatory office to establish rules for the conflict resolution procedure.
A dispute can be settled out of court only if all the various parties involved submit a written application to the conciliation board, RTR-GmbH, after other attempts to find a settlement have failed. Participation in the procedure is voluntary for all the parties concerned, and negotiations can be broken off at any time without any reasons being given.
The applicants can be represented by a lawyer or any person enjoying their confidence at any stage of the proceedings. Telecommunications services providers may be required to authorise a named person to carry these proceedings through, and to negotiate and agree to a mutually accepted solution.
The parties must present their arguments in writing or in electronic form. This also applies to the transmission of documents. On the basis of the arguments put forward by both sides and the opinion of a technical expert who has been consulted, the conciliation board draws up a suggested solution, which the parties can sign and return to the conciliation board within a specific period. If the solution is not returned, the conciliation board can summon all the participants to oral hearings if it considers it expedient and if the applicant does not object. The conciliation board’s recommendation is only a suggestion and is not enforceable. However, if both parties give their written consent to the recommendation, it can acquire the force of a settlement under private law.
The conciliation procedure itself is free of charge, but each of the parties to the dispute must bear the costs of his lawyer’s fees. If the applicant is not a consumer, the conciliation board can require him to pay the actual expenses. There is no provision for granting legal aid, but under certain circumstances consumers are reimbursed travelling expenses.
The parties may refer the matter to a court at any time during the course of proceedings or even after they have been concluded. Once an application has been made to the conciliation board, the due date of an invoice is delayed until the end of the proceedings.
Local authority mediation offices are public bodies set up at local level. They are not allowed to take decisions; their role is to attempt to bring about settlements to certain matters between disputing parties, including financial claims, rights to goods and chattels, boundary disputes, ownership disputes or questions involving defamation of character. Application to local authority mediation offices is voluntary.
Local authority mediation offices are set up at the behest of the regional authorities. There are currently mediation offices in six of Austria’s federal states.
Local authority mediation offices are normally made up of three persons of confidence who have been elected by the local council. According to the statutory requirements, no records may be kept of the settlement proceedings held in local authority mediation offices.
The parties are free to choose whether to appear at the proceedings in person or whether to authorise someone to represent them. There is no mandatory representation by a lawyer. The parties are not required to attend the proceedings but must submit an apology for any absence in good time.
The local authority mediation office has to hear both parties. Proceedings are oral; there is no provision for holding proceedings via electronic media.
The procedure is free of charge.
If the attempt to find a settlement fails, the matter can be brought before an ordinary court. Proceedings do not impinge on any periods of limitation or other due dates.
A settlement reached with the assistance of the local authority mediation office has the same effect as a court settlement and is therefore enforceable under the judicial executory process.
The arbitration tribunals and conciliation centres of the lawyers' associations can be applied to by those seeking extra-judicial settlement of disputes relating to civil, commercial, and economic law and the law of tenancy. Their use is voluntary.
Lawyers' associations in Austria each have their own rules for conducting arbitration or conciliation proceedings, and arbitration or conciliation proceedings before a particular arbitration tribunal or conciliation centre will be conducted according to the rules of the association in question. The conciliation procedure is not laid down by law; please see section A) above for details of arbitration procedures.
Contractual agreements which require that attempts be made to reach an extra-judicial settlement of the dispute before it is brought before a court are binding for the arbitration procedure but not for the conciliation procedure.
Lawyers are the conciliators in conciliation proceedings and the arbitrators in arbitration proceedings held at the conciliation centres or arbitration tribunals set up by the Austrian lawyers' associations. Conciliators and arbitrators are bound to carry out their duties in an entirely independent and impartial manner, to the best of their knowledge and ability and in keeping with their professional duty as lawyers. They are bound to secrecy regarding everything they hear when performing this function and to declare openly all circumstances which might jeopardise their independence or impartiality towards the parties.
While it is perfectly possible to have legal representatives or consultants present during the conciliation process or arbitration proceedings, there is no legal requirement to do so. There is no provision for legal aid.
The cost of proceedings at a conciliation centre and the conciliator's fees are calculated according to a table of fees which can be obtained from the lawyers' association in question. In principle each party has to bear its own costs (e.g. conciliation fees, representation and consultation fees, fees for translators and interpreters). However, the parties can make a free internal agreement to share the costs.
The costs of proceedings before an arbitration tribunal and the fees for the arbitrator or a panel of arbitrators are calculated according to arbitration fees. These are determined according to the value in dispute and calculated according to the scale of costs attached to the arbitration rules drawn up by the lawyers' association in question. Reimbursement of costs and expenses is determined according to who wins the case, unless agreed otherwise in the arbitration agreement or arbitration clause.
In conciliation proceedings at a conciliation centre set up by an Austrian lawyers' association, the parties may agree to the conciliator recording the result of the conciliation. This agreement is binding, but not enforceable. An appeal for compliance must be made to a state court or an arbitration tribunal. Enforcement can be applied for afterwards in the normal manner.
The arbitration award of an Austrian lawyers' arbitration tribunal is enforceable once a period for performance has passed. After this, enforcement can be applied for in the normal manner (see section A for further details).
General information is available on the home page of the Austrian Confederation of Lawyers' Associations (Services/arbitration tribunal), which also has links to the websites in the individual Lawyers' Associations.
Last update: 24-10-2007