Reimbursement Despite Withdrawal of Application for Arbitrator Appointment

Jun 25, 2026 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) was tasked with determining the allocation of costs in proceedings regarding the court appointment of an arbitrator. The primary issue concerned which party should bear the expenses when an applicant withdraws their application during ongoing proceedings.

A limited liability company (GmbH) had submitted an application to the OGH for the appointment of an arbitrator, asserting that the respondent had not fulfilled their obligation to nominate one. In response, the respondent requested the application be rejected or dismissed and specifically challenged the validity of the arbitration clause underlying the dispute. The respondent indicated they would nominate an arbitrator only if their objection was not sustained.

Significance of a provisional nomination

During subsequent proceedings, the applicant withdrew their application, restricting it solely to the issue of costs. The OGH clarified that designating an arbitrator on a precautionary basis does not preclude the right to seek a court-appointed arbitrator.

A subsequent nomination may make a court application for an arbitrator unnecessary, provided the appointment is effected and supersedes the original application. If an arbitrator is nominated provisionally and the application’s dismissal is still pursued, the entitlement to a court-appointed arbitrator remains intact.

Reimbursement for the respondent

The OGH found no justification for the applicant to withdraw their application. It determined that the claim in question had not lapsed as a result of any conduct by the respondent, and consequently, the applicant could not be considered the prevailing party with respect to costs.

Upon recognizing the withdrawal of the application, the OGH ordered the applicant to compensate the respondent for legal expenses incurred during the proceedings, totaling EUR 1,788.90.

OGH 18 ONc 1/26f (7 April 2026)