OGH on Jurisdiction of Ordinary Courts in Arbitration Cases

Sept 6, 2024 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has confirmed, following the prevailing view in legal literature, that a claim for a declaratory judgment on the existence or non-existence of an arbitration agreement is inadmissible.

In the case at hand, the plaintiff had sought a declaration that a contract concluded with the defendant did not contain an (effective) arbitration clause. The defendant countered that an action for a declaration as to the existence or non-existence of an arbitration agreement was inadmissible.

The lower courts were in favour of the defendant’s arguments and dismissed the case. This decision was confirmed by the OGH.

In an Explanatory Memorandum to the Arbitration Act 2006 (Schiedsrechts-Änderungsgesetz, hereinafter SchiedsRÄG, (ErläutRV 1158 BlgNR XXII. GP), lawmakers have made it clear that they have deliberately decided against the admissibility of the action: ‘An action for a declaratory decision on the existence or non-existence of an arbitration agreement is not admissible before state courts, neither during the arbitral proceedings nor prior to them [...].’

Section 578(1) of the Austrian Code of Civil Procedure (Zivilprozessordnung, hereinafter ZPO) as amended by the SchiedsRÄG 2006 (Federal Law Gazette I 7/2006) provides that Sections 577-618 of the ZPO exhaustively regulate the powers of state courts in relation to arbitral proceedings. The aim is to clarify the extent of judicial intervention in arbitral proceedings in order to ensure the greatest possible independence of arbitral proceedings, also to relieve the state courts as well as to ensure legal certainty for the parties to the arbitral proceedings and the arbitrators. It must be possible to conduct arbitral proceedings without restrictions not provided for by law.

OGH 4 Ob 46/24d (25 June 2024)