Provisional and Protective Measures under Austrian Arbitration Law

Abstract

INTERIM PROTECTION of rights had been righty considered one of the hurdles confronting the development of arbitration in the last decade of the twentieth century. For this reason, nearly all arbitration laws amended within that decade addressed the issue of interim protection. For example, the English Arbitration Act 1996 deals with the issue of provisional and protective measures1 (‘provisional measures’) granted by arbitrators and courts.2 Likewise, this issue is neatly handled by the German Code of Civil Procedure enacted in 1998.3 In addition to the permission it gives to parties to apply to a court for provisional measures, this legislation empowers arbitrators to grant such measures and allows the enforcement through courts of these arbitral measures. Indeed, in particular this last point was one of the issues on which the German Code differs from its origin, the United Nations Commission on International Trade Law (UNCITRAL) Model Law 1985 (‘Model Law’). These developments, along with the importance gained by the subject, prompted UNCITRAL to commence a study of the subject of interim protection in 1999. After much deliberation, UNCITRAL came up with an amendment4 to the Model Law which took account of the current trends and contemporary needs in respect of interim protection of rights in arbitration. In line with the above developments, a dramatic change5 has been made in the Austrian Code of Civil Procedure (CCP) in respect of provisional measures. This change undoubtedly reflects the change in attitude of the Austrian legislature to arbitration, i.e. inter alia , to come into line with the current trends in arbitration and further improve Austria's position as an arbitration-friendly country, thereby promoting arbitration. To elaborate the CCP's approach in respect of the protection of the parties' rights on an interim basis,6 this note examines (i) arbitrators' …