European Public Policy and the Austrian Supreme Court

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TWO RECENT decisions of the Third Chamber of the Oberste Gerichtshof (Austrian Supreme Court) (OGH) deal with issues of European law.1 Both decisions were rendered before the Eco Swiss decision of the European Court of Justice (ECJ).2 ### (a) Radenska II Case In its decision dated 23 February 1998,3 the OGH held that Articles 81 and 82 of the EC Treaty4 are among the fundamental rules for the Common Market and that, because of the principle of supremacy of EC law, they are part of Austrian public policy. In the arbitration, the claimant had asked for damages because of the breach of an agreement for the production and sale of beverages in former Yugoslavia. The arbitral award in favour of the claimant was rendered on 7 July 1988 by the arbitral tribunal of the Chamber of Commerce of Yugoslavia in Belgrade. The respondent filed an action to set aside the award with the competent court in the then independent Republic of Slovenia. On 3 July 1992, the Slovene Supreme Court set aside major parts of the award. The claimant had already been granted enforcement of the award by the competent Austrian court on 17 March 1989. Based on the setting aside of the award in the Republic of Slovenia, the respondent applied for the discontinuation of the enforcement proceedings in Austria. This request was finally rejected by the OGH on 20 October 1993 in the Radenska I case.5 Thereafter, the respondent filed a defence against the enforcement proceedings and on 23 February 1998 the OGH made its decision. It is interesting to note that the decision was not based on the New York Convention, but rather on the European Convention on International Commercial Arbitration 1961 (European Convention). Following its reasoning in Radenska I , the OGH held that the respondent …