KluwerArbitration

Document information Article 10: Memorandum in Reply

Publication I Service of the Statement of Claims
The Vienna Rules: A Article 10(1): If the claim is not to be dealt with under Article 9 paragraphs 5 and 6, the
Commentary on Secretary General shall make service to the Respondent of the statement of claims and
International Arbitration one copy each of the rules of arbitration and shall invite the Respondent to submit a
in Austria memorandum in reply within a period of thirty days, in the number of copies required
under Article 9 paragraph 2.
Jurisdiction A Introduction
Austria
10-001 Article 10 has been largely unaffected by the last amendment of the Vienna Rules. The
‘defendant’ of the previous version of the Vienna Rules is now termed ‘respondent’, as is customary
Bibliographic in international arbitration. Further, the rules
reference P 236
regarding the transmission of the file to the arbitrators have been placed into a separate provision
'Article 10: Memorandum in (Article 12), where they remain essentially unaltered in substance.
Reply', in Franz T. Schwarz
and Christian W. Konrad , 10-002 This chapter gives an overview of the practical implications relevant to a respondent
The Vienna Rules: A receiving a statement of claims under the Vienna Rules. However, the important changes in the
Commentary on International Vienna Rules regarding objections against the arbitral tribunal's jurisdiction are discussed in the
Arbitration in Austria, context of Article 19.
(© Kluwer Law International;
Kluwer Law International B Proper Statement of Claims as a Prerequisite of Service
2009)
10-003 Article 10(1) makes clear that the Secretary General may only process the statement of
claims, and thus serve it on the respondent, if it does not fall within Article 9(5) and (6). As
discussed above, Article 9(5) allows the Secretary General to return the statement of claims to the
claimant if it does not meet the mandatory requirements of the Vienna Rules as to form and content.
As also discussed above, Article 9(6) allows the VIAC to refuse the administration of a case
altogether if the arbitration agreement deviates from the Vienna Rules. Article 10(1) should be read
to refer to ‘Article 9 paragraphs 5 or 6’. It will be very rare that the claimant does not comply with a
request to rectify a defect in the statement of claims and the Board additionally refuses the
administration of the claim.
10-004 Under the structure of Article 10, the statement of claims will therefore only be served on the
respondent if the Secretary General is satisfied that the statement of claims complies with Article 9.
Notably, the Vienna Rules do not provide that the Secretary General separately confirms that the
statement of claims has been filed in ‘due form’. The fact that the statement of claims is served on
the respondent in accordance with Article 10 is, however, implicit confirmation that it complies with
the formal requirements of Article 9.
10-005 Thus, as soon as a statement of claims is delivered to the respondent(s), the parties can
draw the following conclusions. Firstly, the claim fulfils the mandatory requirements under Article
9(3). Secondly, the Board is prima facie satisfied with the arbitration agreement submitted by the
claimant and is willing to administer the case. Thirdly, the deposit of costs has been paid by the
claimant(s), which as required by Article 33(1).
10-006 If the respondent considers the VIAC to have overlooked defects in the statement of claims
that should have prevented the claimant's submission from being processed under Article 10, there
is in principle no procedure available to address this with the VIAC. However, in practice, the
respondent can of course always attempt to address the VIAC (or, after transmission of the file to
the arbitrators, perhaps more properly, the arbitral tribunal) on such issues.
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C Service of the Statement of Claims

10-007 As previously mentioned, it is the claimant's obligation (and in its genuine interest) that the
respondent is properly identified and designated and their address included in the statement of
claims. On the basis of this information, service of the statement of claims is effected through the
Secretariat.

(1)

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 10-008 The Secretary General will assist the claimant with the delivery. (1) Several delivery attempts
may become expensive and the claimant might therefore be asked to pay an additional advance on
costs even at this stage of the proceedings. There is no indication in the Vienna Rules as to the
number of times the Secretary General must attempt to effect service on the respondent. It is the
current practice of the Secretariat that, should there be delay or difficulty in serving the statement of
claims, the claimant is as a matter of course given the opportunity to improve on the contact details
of the respondent. (2) In practice, therefore, multiple requests for service will usually been granted,
but it falls on the claimant to inquire, and provide, improved particulars of the respondent's address
to the Secretariat. The claimant's failure to provide an address fit for service would entitle the
Secretary General not to proceed with the statement of claims in accordance with Article 9(5). (3)

D The Response Period

10-009 Being served with a statement of claims may not come as a surprise to a belligerent party.
Oftentimes, conflicts emerge over a long period of time, ultimately culminating in the filing of a
statement of claims. In practice, commercial parties will have instructed in-house lawyers or external
counsel to assess, and prepare for, the dispute long before the arbitration actually commences.
10-010 However, parties, less litigant or perhaps less accustomed to arbitration proceedings, may
just as well be taken by surprise by being confronted with a statement of claims and an ‘invitation’ to
submit a memorandum in reply. In this case, fairness demands that the respondent must be put on
notice that important time-limits (e.g. for the nomination of the number or the appointment of the
arbitrators (4) ) commence from the date of receipt of the statement of claims delivered by the
Secretary General.
10-011 The Secretary General therefore delivers the statement of claims together with a copy of the
Vienna Rules and the VIAC's list of arbitrators. The Secretary General
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also expressly advises the respondent to file the memorandum in reply within thirty days, and, where
applicable, to nominate an arbitrator within that time. As discussed further below, the respondent
must then decide, on the basis of legal and tactical considerations, which course of action is most
advantageous to its position, and must carefully consider the appointment of a suitable arbitrator. (5)

E Extensions of the Response Period

10-012 Although the 30-day period to produce a memorandum in reply corresponds with
international standards and other arbitration rules, (6) the respondent will often find this time-limit too
brief for comfort. In such cases, the respondent will be well advised to contact the Secretary General
at an early stage (and not on the expiry date of thirty-day time-limit) and apply for an extension for
the preparation of the memorandum in reply. (7)
10-013 Such requests for extension follow the provision of Article 13. Unlike Article 5(2) ICC Rules,
the respondent need not comment on ‘the particulars regarding the numbers of the arbitrators’
before applying for an extension of the time-limit. (8) This opens the door to dilatory tactics. Article
13 therefore provides that a request for extension of time must provide ‘sufficient grounds’ for the
requested extension. Although, according to Article 13, documentary evidence is in principle not
required, it is still advisable to explain in detail the difficulties encountered in preparing the
memorandum in reply.
10-014 It is the practice of the present Secretary General to grant extensions for 30 days, unless
special circumstances require otherwise. An almost automatic first extension is usually granted
upon the respondent's application, which is usually not forwarded to the claimant for further
comment. This practice is problematic; the
P 239
better view may be for the Secretariat to always seek the claimant's comment. The claimant –
having access to information not available to the Secretariat – may be able to demonstrate
convincingly that, in the circumstances of the case, particular urgency is required or that the
respondent is engaging in dilatory tactics. With respect to the appointment of the respondent's co-
arbitrator in the memorandum in reply, the automatic grant of an extension is also problematic in
light of Article 14(4) which provides that, if the 30 day time limit is missed, ‘the arbitrator shall be
appointed by the Board’. As the wording of this provisions suggests, the thirty day time period is, in
principle, mandatory, and, as the agreed rule, arguably affords the claimant a contractual entitlement
vis-à-vis both the respondent and the VIAC to that effect. Automatic extensions therefore may run
foul of the strong principle embodied in Article 14, and undermine the requirement of Article 13 to
show ‘sufficient grounds’ for an extension.
10-015 In any event, while the VIAC is lenient with initial requests for extensions, it is more
conservative as far as further requests are concerned. In such cases, it will usually hear the claimant

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 before making a decision, and it is likely to grant only shorter extensions of fifteen days.

II The Memorandum in Reply

Article 10(2): The memorandum in reply must include:
(a)A reply to the pleadings in the statement of claims;
(b)Particulars regarding the number of arbitrators in accordance with Article 14;
(c)Indication of the name and address of an arbitrator, if a decision by an arbitral tribunal is
requested or if a decision by three arbitrators has been agreed upon in the arbitration
agreement.

A Mandatory Content under Austrian Law

10-016 As with the statement of claims, the required – and equally important, permitted – content
for the respondent's first submission may vary depending on the parties' arbitration agreement, (9)
applicable institutional rules (10) and applicable national law. (11) This submission is sometimes,
because of the practice under other institutional
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rules, referred to as the respondent's ‘Answer’. (12) National arbitration legislation also sometimes
addresses the contents of a memorandum in reply (at least in ad hoc arbitrations, where the parties
have not otherwise agreed). In general, national laws impose relatively few requirements for such
submissions. Under Austrian law, Section 597(1) ZPO provides for a ‘statement of defence’ without
actually setting out much guidance as to its contents:

Within the period of time agreed by the parties or determined by the arbitral
tribunal, the claimant shall state its claim and the facts supporting its claim, and
the respondent shall respond thereto. The parties may submit with their
statements all documents they consider to be relevant or may add a reference to
the documents or other evidence they will submit. (13)

B Required Content under the Vienna Rules

10-017 The content requirements for the memorandum in reply, as stipulated in Article 10, are
rather restrained. (14) Article 10 does not even mention that any evidence has to be provided in the
memorandum in reply, so that the respondent does not, at this stage, run the risk of prejudicing its
position. Again, it is left to the respondent's discretion and tactical assessment to decide upon the
level of detail of its submission.
10-018 Having said this, a former version of Article 10 contained even less guidance in terms of
content requirements and therefore left it entirely to the respondent to decide how to comment on
the claimant's pleading. (15) The current version of the Vienna Rules has, for the sake of clarification
and possibly in light of Section 597
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ZPO, added at least minimum requirements. Under the Vienna Rules, the respondent is also
entitled to raise a counter-claim in the memorandum in reply. (16)
1 Article 10(2)(a): Reply to the Pleadings in the Statement of Claims
10-019 Article 10(2)(a) provides, rather vaguely, that the memorandum in reply should contain a
‘reply to the pleadings in the statement of claims’. As discussed, this leaves a substantial measure
of discretion to the respondent to structure the memorandum in reply depending on tactical
considerations. For example, a very brief reply essentially only ‘rejecting’ the claimant's pleadings
would be sufficient. (17) Perhaps surprisingly, and in contrast to the requirements pertaining to the
statement of claims under Article 9, evidence need not be referred to, much less attached. (18)
10-020 However, the respondent should consider carefully the impression it wishes to make on the
arbitral tribunal. A comprehensive reply also facilitates the drawing up of an accurate timetable for
the proceedings. The Secretary General will typically also appreciate more detailed pleadings,
making it easier for the VIAC to estimate the possible costs of proceedings and consider the
amount of the advance, for example, with respect to more complex applications for the taking of
evidence that will likely involve significant costs. (19)
10-021 Further, the respondent is entitled under Article 11 to advance a set-off defence or to file an
affirmative counter-claim. (20) This could influence the calculation of the costs of the deposit and the
administrative charges but will typically not delay the proceedings. (21)

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 10-022 It may also happen occasionally that, after receipt of the statement of claims, the respondent
is prepared to concede the claimant's claim in full or to agree to satisfy at least part of the claim. If
such (full or partial) admission occurs, the Secretary General will notify the claimant and inquire
whether the claimant wishes to continue the proceedings or, where applicable, whether it wishes to
pursue the unsatisfied portion of the claim. In principle, also after the respondent's admissions, the
claimant may be entitled to an enforceable award and might, therefore, have a legitimate interest in
continuing the proceedings.
P 242
2 Article 10(2)(b) and (c): Particulars Regarding the Number, Name and Address of
the Arbitrators
10-023 With the memorandum in reply, the respondent is also required to comment on the
particulars regarding the number of arbitrators and the claimant's proposal in this respect. Where a
tribunal of three has been agreed in the arbitration agreement, or where the decision of such a
tribunal is requested, the respondent must also name its co-arbitrator. In essence, the commentary
on Article 9(3)(d) and (e) applies mutatis mutandis. (22)
10-024 Where the indication of the number of arbitrators in the statement of claims contra-dicts the
indication in the memorandum in reply, or where such an indication is lacking, the matter is referred
to the VIAC Board to make a binding decision on the number of arbitrators pursuant to Article 14.
(23)

10-025 Also, if an arbitrator has been nominated by the claimant, and the respondent objects to this
nomination, the respondent is advised to notify his objection immediately. Failure to do so runs the
risk that the Board may assume pursuant to Article 16(1) that the respondent participated in the
appointment procedure and thus waived its right to challenge the claimant's co-arbitrator. (24)

C Formal Requirements
10-026 As regards requirements of form, the same considerations apply to the memorandum in
reply that have been discussed in the context of the statement of claims. Thus, a memorandum in
reply will be accepted if it is submitted in compliance with Article 13, that is, by registered letter,
courier service, fax or by any other means of communication that guarantees evidence of
transmission. (25) Attaching a different, and strictly speaking incorrect, terminology such as ‘Answer’
or ‘Statement of Defence’ will not affect the admissibility of the submission. However, the reference
to Article 9(2) obliges the respondent to include a sufficient number of copies of the submission
with enclosures for each party, each arbitrator and the Secretariat.
10-027 As with the statement of claims, the Vienna Rules do not specifically require that the
memorandum in reply be signed by the respondent or its representative. (26)
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Therefore, a signature will not be requested. Indeed, because a signature is not a mandatory
requirement under Article 10, the lack of a signature cannot prevent the memorandum in reply from
being processed.
10-028 Although not explicitly mentioned, it is recommended that a respondent's counsel also
submit proof of its power of attorney. This will facilitate the proceedings for the arbitral tribunal,
although no sanction applies to a failure to do so.

D Addressee of the Memorandum in Reply

10-029 The Vienna Rules contain no indication as to the destination to which the respondent must
submit the memorandum in reply. The standard cover letter sent by the Secretary General to effect
service of the statement of claim on the respondent requests that the memorandum in reply be
addressed to the Secretariat. Although there is no express provision on point, it then falls as a
matter of course to the Secretary General to deliver the memorandum in reply to the claimant(s).
10-030 It is standing practice, however, that the respondent delivers a copy of his submission
directly to the claimant's counsel named in the statement of claims. It is recommended that this kind
of direct delivery is noted in the respondent's cover letter to the VIAC. With the delivery of the
memorandum in reply to the claimant, the Secretary General usually calls for payment of the
advance of costs. Also, insofar as the parties have not nominated their co-arbitrators (or agreed on
a sole arbitrator), the Secretary General sets in motion the nomination procedure for constituting the
tribunal in accordance with Article 14.

E Failure to Submit a Proper or Timely Memorandum in Reply

10-031 Whereas the Secretary General's power to address defects in the statement of claims has

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 explicitly been provided for in Article 9, Article 10 remains silent on this point. As discussed above
there is – under the present concept – literally no sanction in the Vienna rules for a defective
memorandum in reply. (27) Nevertheless, it is the current practice of the Secretary General to
request an additional copy of the memorandum in reply from the respondent, if such copy is missing
under the calculus of Article 9(2), even though no sanction will be imposed.
10-032 The Vienna Rules also do not provide express sanctions in case of delay or outright failure
to submit a memorandum in reply; the proceeding will simply
P 244
continue even if no memorandum in reply is filed. (28) To an extent, this reflects the somewhat
distorted translation of the authentic German version of Article 10 into English. The authentic
German version provides, arguable in stronger terms, that the Secretary General ‘auffordert’ (that is,
requests) the submission of a memorandum in reply, whereas the current English translation has the
Secretary General merely ‘invite’ submission of the memorandum in reply, which arguably does not
carry the same sense of obligation as the German original.
10-033 Absent express sanctions, the respondent can (theoretically) file the memorandum in reply
even beyond the expiry of the 30-day time-limit (or a possible extension). The Secretary General
would not be in a position to reject this submission but would have to notify the claimant to include it
in the case file for transmission to the arbitral tribunal. Such a late submission is conceivable until
the arbitral tribunal makes appropriate procedural orders prohibiting late filings (‘cutting-off orders’).
(29) In the absence of an agreement between the parties, the Vienna Rules leave it to a great extent
to the arbitral tribunal to decide and rule on appropriate and adequate procedure, (30) and to
address late filings by the parties. Arbitrators will normally be concerned that the parties have had a
reasonable opportunity to present their case, and are unlikely to penalize the respondent's failure to
comply with the prescribed time-limit by refusing to accept a late submission.
10-034 However, submitting no memorandum in reply, or doing so only late, creates serious risks
for the respondent. First, the respondent will, unless very good reasons prevented it from a timely
submission, make a negative impression on the tribunal. Second, the VIAC will not consider the
respondent's position concerning the number of arbitrators, and, as discussed below in Article 14,
can determine the number of arbitrators without further notice to the defaulting party. (31) Also, the
VIAC will be entitled under Article 14 to proceed with the constitution of the tribunal, or the
appointment of the sole arbitrator, even if no memorandum in reply is filed. Third, once the tribunal is
constituted, the
P 245
arbitration will continue even without the respondent's participation. (32) This is addressed in Article
20(6) (33) and in line with Section 600(2) ZPO which provides:

If the respondent fails to respond in accordance with Section 597, paragraph 1

of this law during the agreed or determined period of time, the arbitral tribunal
shall, unless the parties have agreed otherwise, continue the proceedings
without treating such failure in itself as an admission of the claimant's
allegations. The same shall apply where a party has failed to perform any other
procedural act. The arbitral tribunal may continue the proceedings and may
make an award on the basis of the evidence taken. If a failure to perform a
procedural act has been excused to the arbitral tribunal's satisfaction, it may
then be performed by the party.

10-035 The respondent's failure to submit a memorandum in reply does not cause the proceedings
to be terminated. Rather, the arbitral tribunal must continue the proceedings. If the respondent does
not respond to claims made by the claimant, the tribunal will not take these claims on face value or
automatically accept them to be true. If the proceeding is conducted in its entirety without the
submission of a memorandum in reply, the arbitral tribunal is still required to obtain as much
information as possible and to evaluate the case in a fair and balanced manner. (34) The tribunal
may thus allow the respondent to submit a memorandum in reply at a later time if its default is
excused. (35)
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References
1)
In contrast, Article 2(1) AAA/ICDR Rules requires the claimant to simultaneously serve the
statement of defence to the administrator as well as to the respondent, a similar procedure can be
found in Article 5(1) DIS Rules. Article 3(6) Swiss Rules provides that the arbitral tribunal shall
deliver the statement of defence without delay.
2)

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 2)
SeeArticle 9, at paras. 053 et seq.
3)
For a more detailed discussion of effective service of the statement of claims under the Vienna
Rules, seeArticle 9, at paras. 003 et seq.
4)
SeeArticle 14, at paras. 006, 032 and 052.
5)
SeeArticle 7, at para. 028.
6)
Same time-limits in Article 5(1) ICC Rules; Article 2(1) LCIA Rules; Article 3(1) AAA/ICDR Rules;
Article 20(2) Czech Rules; Article 25(2) Hungarian Rules; Article 29(2) Slovenian Rules – within 15
days for domestic disputes Article 29(1) Slovenian Rules; an exceptionally short time-limit of 10
days can be found in Article 16(2) Slovak Rules; in contrast, there are institutions with a
discretionary element, such as, e.g., Article 9 DIS Rules; Article 32(1) Polish Rules and Article 14
Croatian Rules.
7)
The ability to apply for a time-extension is also found in Article 5(2) ICC Rules (with the Secretariat);
Article 3(4) AAA/ICDR Rules (with the arbitral tribunal or the administrator); Article 29(3) Slovenian
Rules (with the Secretary of the Court); Article 20(2) Czech Rules; Article 25(2) Hungarian Rules
(with a maximum extension of 30 days) and Article 16(2) Slovak Rules (with a very strict maximum
extension of 10 days).
8)
Article 5(2) ICC Rules reads: ‘The Secretariat may grant the Respondent an extension of the time-
limit for filing the Answer, provided the application for such an extension contains the Respondent's
comments concerning the number of arbitrators and their choice, and, where required (…) the
nomination of an arbitrator. If the Respondent fails to do so, the Court shall proceed in accordance
with these rules’.
9)
Arbitration agreements generally do not impose requirements for the contents of a request for
arbitration, even less frequently, for the memorandum in reply.
10)
Article 2 LCIA Rules; Article 5 ICC Rules; Article 3 AAA/ICDR Rules and Article 19 UNCITRAL
Rules.
11)
Civil law systems and practice will often favour more detailed initial notices (or submissions),
supported by documentary evidence, while common law systems may incline towards relatively
skeletal ‘notice’ pleading. See S. Elsing and J.M. Townsend, ‘Bridging the Common Law-Civil Law
Divide in Arbitration’ (2002) 18(1) Arb Int'l, 59.
12)
Article 5 ICC Rules.
13)
This provision is almost literally identical to Article 23(1) UNCITRAL Model Law.
14)
By contrast, Article 5 ICC Rules asks additionally for ‘any comments as to the place of arbitration,
the applicable rules of law and the language of the arbitration’. Similarly Article 3(3) AAA/ICDR
Rules provides that ‘[a] respondent shall respond (…) to any proposals the claimant may have made
as to the number of arbitrators, the place of the arbitration or the language(s) of the arbitration,
except to the extent that the parties have previously agreed as to these matters’.
15)
Article 7 of a former version of the Vienna Rules provided: ‘The Secretary shall make services to the
Defendant of the statement of the claims and one copy each of the Rules of arbitration and the list of
arbitrators and shall invite the defendant to submit a memorandum in reply within a period of 30
days; including where appropriate a counter-claim accompanied by the number of copies required
in accordance with Article 6 paragraph 2, and to state its wishes with regard to the number of
arbitrators in accordance with Article 9. If a decision by three arbitrators is requested, an arbitrator
shall be nominated in the memorandum in reply and the address of that person shall be stated.’
16)
SeeArticle 11, at paras. 002 et seq.
17)
This is similar under Article 5(1) ICC Rules outlines only minimal requirements for the content of the
reply to the pleadings, referred to as answer to the request, and how much a respondent chooses to
state in an answer depends on the circumstances of the case, including the content of the request.
See Y. Derains and E.A. Schwartz, A Guide to the ICC Rules of Arbitration (2nd edn, The Hague,
Kluwer Law International, 2005), pp. 63-72.
18)

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 18)
C. Liebscher in Arbitration Law of Austria: Practice and Procedure, S. Riegler, A. Petsche, A.
Fremuth-Wolf, M. Platte and C. Liebscher (eds) (Huntington, Juris Publishing, 2007), p. 626.
19)
SeeArticle 34, at paras. 019 et seq.
20)
SeeArticle 11, at paras. 001 et seq., and 043 et seq.
21)
See in detailArticle 34, at paras. 019 et seq.
22)
SeeArticle 9, at paras. 062 et seq.
23)
SeeArticle 14, at paras. 015 et seq.
24)
For a detailed discussion of the challenge procedure and the issue of waiver, seeArticle 16, at
paras. 026 et seq. For the substantive standards of arbitrator impartiality and independence,
seeArticle 7, at paras. 080 et seq.
25)
SeeArticle 9, at para. 010.
26)
See likewise Article 17(1) Czech Rules; Article 22(1) Hungarian Rules and Article 13(1) Slovak
Rules.
27)
See, however, the discussion about the jurisdiction of the arbitral tribunal in Article 19, at paras.
011 et seq.
28)
C. Liebscher in Arbitration Law of Austria: Practice and Procedure, S. Riegler, A. Petsche, A.
Fremuth-Wolf, M. Platte and C. Liebscher (eds) (Huntington, Juris Publishing, 2007), p. 626. Unlike
other arbitration rules, the ICC Rules include explicit measures to continue with the proceedings in
the case that the respondent refuses to participate or attempts to delay the tribunal. Article 6(3) ICC
Rules provides that if a party refuses to take part in the arbitration, the proceedings will proceed ex
parte. Where a sole arbitrator is provided in an arbitration agreement or it is deemed appropriate
by the court, an arbitrator will be appointed by the court on behalf of the respondent. The awards
rendered under these conditions are no less enforceable than those in an active adversarial
proceeding. See W.L. Craig, W.W. Park and J. Paulsson, International Chamber of Commerce
Arbitration (3rd edn, New York, Oceana Publications, 2000), pp. 151-153.
29)
SeeArticle 20, at paras. 071 et seq.
30)
SeeArticle 20, at paras. 093 et seq.
31)
SeeArticle 14, at para. 017.
32)
The impact of an untimely objection to the jurisdiction of the arbitral tribunal is discussed under
Article 19, at para. 010.
33)
SeeArticle 20, at paras. 257 et seq. See also Article 6(3) of the ICC Rules which provides that if a
party refuses to take part in the arbitration, the proceedings will proceed ex parte. See W.L. Craig,
W.W. Park and J. Paulsson, International Chamber of Commerce Arbitration (3rd edn, New York,
Oceana Publications, 2000), pp. 151 et seq.
34)
SeeArticle 20, at paras. 257 et seq. Under the former arbitration law, it was argued that in
arbitration proceedings the claimant could in case of respondent's default, not apply for a default
judgment in accordance with Section 396 fZPO. The same is true under the new Arbitration Act, see
Section 600(2) ZPO, however permitting parties to ‘agree otherwise’.
See H.W. Fasching, Schiedsgericht und Schiedsverfahren im österreichischen und im
internationalen Recht (Vienna, Manz, 1973), p. 127.
35)
M. Platte in Arbitration Law of Austria: Practice and Procedure, S. Riegler, A. Petsche, A. Fremuth-
Wolf, M. Platte and C. Liebscher (eds) (Huntington, Juris Publishing, 2007), Section 600, p. 387.

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