Volume 25 (2007)

Volume 25 (2007) / Issue 3

Hubertus Schumacher, 'Zu Inhalt und Bestimmtheit von Schiedssprüchen und Vollstreckungsanträgen' (2007) 25 ASA Bulletin, Issue 3, pp. 493–507

Abstract

Under the Austrian Enforcement Act the precise wording of an enforceable title is an essential precondition for the enforcement authorisation by the judge: Thus the operative part of an arbitral award has to express clearly that the debtor is ordered to perform or refrain from a certain act. Interpretation of an award is only permissible within narrow confines. In principle the Austrian legal doctrine allows the interpretation of an enforceable title only in the framework of the operative part. As an exception it is permissible to consult the grounds for the award if the wording of the operative part is not clear. For instance: if the arbitral award orders the defendant to pay ‘simultaneously with claimant releasing’ certain goods the quid pro quo cannot be enforced on behalf of the defendant (no iudicium duplex). In the absence of a condemnation of claimant in the operative part of the award, there is no case of doubt so the grounds of the award may not be taken into consideration.

Against this background, conditions precedent in an executory title could cause serious problems for the judgment creditor: The fulfilment of the condition has to be demonstrated by an official or authenticated document. This document must demonstrate the fulfilment of the condition. It is advisable to avoid conditions whose occurrence depends on a legal interpretation since it might be unclear whether the condition has been fulfilled. The enforcement may not be permitted by the court. If the court grants the enforcement the debtor could resist it with a foreclosure suit, the so-called ‘Oppositionsklage’.

Furthermore: Awards ordering an accounting should state the form and extent of the requested accounting as detailed and precisely as possible. Otherwise, disputes about the extent and manner of the accounting could arise at a later stage.

The award creditor has to convert any amount due under the award in an EU or EEA currency. Failing such conversion, a request for judicial mortgage or forced sale of the debtor’s real estate would be rejected. These requests are not open to correction, a new request has to be submitted and the creditor could lose his priority.

Do arbitrators have an obligation to discuss the aforementioned problems with the parties? In the author’s opinion such an obligation may exist only if it is evident that the prayer of relief in question is not precise enough. In this case the arbitrators need not give specific directions but should discuss the problem with the parties. In all other cases, it is the obligation of the parties to detect and avoid problematic prayers for relief, and to take into account relevant national enforcement laws.

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ISSN: 1010-9153
ID: ASAB2007047