Prevention and Challenge of Surprise Decisions in (Austrian) Arbitration Proceedings

Abstract

The paper examines measures to prevent and challenge "surprise decisions" rendered by arbitral tribunals. In the absence of explicit provisions governing surprising arbitral awards in the Austrian Arbitration Act, major focus is laid on the scope and interpretation of the right to be heard as one of the fundamental procedural guarantees (also) applicable to arbitration proceedings. An analysis of Article 6 ECHR and the respective case law developed by the
European Court of Human Rights shows that the right to be heard as enshrined in Article 6 ECHR cannot be waived by the parties when resorting to arbitration. Article 6 ECHR shall therefore be a core point of reference not only for arbitral tribunals when they strive to prevent the issuance of a surprising arbitral award but also for national courts at the setting aside stage. Contrary to the recent practice reflected in Austrian case law, violations of the
right to be heard should be assessed by resorting to the standards enshrined in Article 6 ECHR, preferably complemented by a comparative law approach.