Termination of Arbitral Proceedings 20151027

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Handelsschiedsgerichtsbarkeit
Termination of Arbitral Proceedings
Dr Christoph Stippl, LL.M. (Columbia), MCIArb

christoph.stippl@dbj.at
Vienna, 28 October 2015
www.dbj.at
DORDA BRUGGER JORDIS
I. by Award II. by Settlement III. by Order

• Interim Award • Out of Court Settlement • Withdrawal of Claims
• Partial Award • Recorded Settlement • Agreement of the
Parties
• Final Award • Award on Agreed
• Impossibility of
Terms/Consent Award
Continuation of
• Additional Award
Proceedings
• Award on Costs
• Default Award
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TERMINATION OF ARBITRAL PROCEEDINGS

2003 - 2012 (VIAC)
Final Award
48%
Suspension of
the Proceedings
16%
Withdrawal of
Claims
23%
Out-of-Court-
Settlement
6%
Settlement
(Award on
Termination Agreed Terms)
Order 2%
5%
Data courtesy of Vienna International Arbitral Centre (VIAC)
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OVERVIEW
Block 1 Block 2
I. Arbitral Awards D. Making of the Award

A. Awards vs Orders E. Form of the Award
B. Types of Relief F. Content and Structure of the Award
C. Types of Awards G. Correction and Interpretation of the Award
1. Interim Award
2. Partial Award
3. Final Award
4. Additional Award Block 3
5. Award on Costs
6. Default Awards II. Settlement /Award on Agreed Terms
III. Order by the Arbitral Tribunal
A. Withdrawal of Claims
B. Agreement of the Parties
C. Impossibility of the Continuation
of the Proceedings
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Parties
Terms/Consent Award
Continuation of
Proceedings
• Award on Costs
• Default Award
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I.A. ARBITRAL AWARDS
Award
• Decision that determines the issue with which it deals
• Final and binding decision:
• no possibility to (appeal and) have decision reversed; exception: parties agree on
appeal
• precludes continued litigation on same issues between the same parties (res iudicata)
• Remedy: award setting aside proceedings ('annulment proceedings'; 'award challenge')
• Subject to recognition and enforcement (New York Convention [most important basis])
Procedural Order
• Concerned with the conduct of the proceeding
• Usually helps to move the arbitration forward
• No resolution of the merits of the case
• No res iudicata effect
• No remedy
• Not subject to enforcement
• Parties generally may still reassert their claim
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I.B. TYPES OF RELIEF
Types of Relief in Arbitral Awards

• Party autonomy wide range of reliefs possible
National laws may contain limits
• Monetary relief
e.g., payment under a sales contract, damages
• Specific performance
e.g., restitution of a specific object
• Declaratory relief
e.g., respondent is liable for future damages
• Injunctive relief
e.g., respondent shall refrain from using a patent registered by claimant
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I.C.1. INTERIM AWARD
Characteristics of Interim Awards

• Also known as interlocutory award
• Issued while arbitration is still in progress

does not terminate the proceedings
• Deals with a separable question which is relevant for the final decision, e.g.:
jurisdiction of the arbitral tribunal
applicable law
liability
• No final settlement of claims!
• Internationally, the term is often used synonymously with "partial award", as

both are rendered at an interim stage of the proceedings; then different
consequences
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I.C.1. INTERIM AWARD

Annulment and Recognition of Interim Awards?
• Interim awards can be set aside/recognized only in some jurisdictions

no uniform answer
depends on the applicable arbitration laws
• Situation in Austria:
in general, interim awards are not subject to annulment, as they do not finally settle a
claim or parts thereof
However, interim awards on jurisdiction can be set aside!
if a party wants to oppose the tribunal's decision on jurisdiction, it HAS TO initiate setting
aside proceedings within three months of receipt to avoid prescription
"Recourse to a court against an arbitral award may be made only by means of an action for
setting aside. This shall also apply to arbitral awards by which the arbitral tribunal has ruled on
its jurisdiction."
Sec 611(1) öZPO
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I.C.2. PARTIAL AWARD
Characteristics of Partial Awards
• Fully and finally settles one or several separable claims but not entire dispute
• Final in regard to the matters dealt with in the partial award
• No termination of the arbitral proceedings as a whole

but: termination of the proceedings with respect to the claims dealt with in the partial
award
• Binding on tribunal and parties
• Separate challenge and enforceability

successful party can enforce the claims dealt with by the partial award while the
proceedings regarding the remaining claims continue
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I.C.3. FINAL AWARD
Characteristics of Final Awards
• Final decision on the dispute, i.e., all claims raised and not yet decided by partial
awards; binding (yet: parties may agree on appeal)
• Terminates the arbitral proceedings
• Usually contains the decision on costs
• Challengeable and enforceable
"The arbitral proceedings are terminated by the final award or by an order of the arbitral
tribunal in accordance with paragraph (2) of this article."
Art 32(1) UNCITRAL Model Law
"The proceedings are terminated (1) by the rendering of an award; […]"

Art 34 Vienna Rules 2013
"The arbitral proceedings are terminated by the final award, an arbitral settlement, or by an
order of the arbitral tribunal in accordance with paragraph (2) of this Article."
Sec 608(1) öZPO
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I.C.3. INTERIM/PARTIAL/FINAL AWARD

Difference Interim Award – Partial Award – Final Award
Summary
Interim Award Partial Award Final Award
• separable question • separable claim(s) • final decision on all

• relevant for final decision • terminates proceedings claims submitted (& not
• jurisdiction yet finally decided)
on separable claim(s)
• applicable law
• subject to challenge, •terminates proceedings
• liability
enforceable • subject to challenge,
• no final settlement of
enforceable
claims of
proceedings
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I.C. INTERIM AWARD & PARTIAL AWARD

Legal Basis for Interim Awards/Partial Awards
"'award' includes, inter alia, an interim, partial or final award."

Art 2(v) ICC Arbitration Rules 2012
"Award includes any final, partial or interim award"

Art 6(1)(8) Vienna Rules 2013
"The arbitral tribunal shall decide on its own jurisdiction. The decision on jurisdiction may be
made together with the decision on the merits or in a separate award. Where the arbitral
tribunal declines jurisdiction, it shall upon the request of one of the parties decide on the
parties’ costs obligations."
Art 24(2) Vienna Rules 2013
"The arbitral tribunal may rule on its own jurisdiction. The ruling can be made together with
the ruling on the case or by separate arbitral award."
Sec 592(1) öZPO
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I.C.4. ADDITIONAL AWARD
Characteristics of Additional Awards
• Rendered if final award mistakenly fails to dispose of a claim that has been
asserted
In that case, "final" award is in reality a partial award
No new claims
• Upon request of a party or ex officio

UNCITRAL Model Law, Vienna Rules 2013, öZPO: only upon request of a party
under some arbitration laws/rules: explicitly forbidden or restricted to certain issues

(i.e., restricted to decisions on costs)
• Same effects as final/partial awards: final & binding; subject to annulment,

recognition and enforcement
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I.C.4. ADDITIONAL AWARD
Legal Basis for Additional Awards
"Unless otherwise agreed by the parties, a party, with notice to the other party, may request,
within thirty days of receipt of the award, the arbitral tribunal to make an additional award
as to claims presented in the arbitral proceedings but omitted from the award. If the arbitral
tribunal considers the request to be justified, it shall make the additional award within sixty
days."
"Within 30 days of receipt of the award, any party may file the following applications with the
Secretariat for the arbitral tribunal: […] 1.3 to render an additional award on claims made in
the Arbitration but not resolved in the award."
"Unless another period of time has been agreed upon by the parties, each party may within
four weeks of receipt of the award request the arbitral tribunal: […] 3. to make an additional
award as to claims presented in the arbitral proceedings but omitted from the award."
Sec 610(1) öZPO
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I.C.5. AWARD ON COSTS
Characteristics of Awards on Costs
• Two possibilities to decide on the costs of the arbitral proceedings

i. arbitral tribunal may deal with the costs in the partial/final award
ii. arbitral tribunal may deal with costs in a separate award
• Award on Costs = same consequences as other awards

final & binding
can be subject to annulment proceedings
separate recognition & enforcement
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Legal Basis for Awards on Costs
"At any time during the arbitral proceedings, the arbitral tribunal may make decisions on
costs, other than those to be fixed by the Court, and order payment."
Art 37(3) ICC Arbitration Rules 2012
"When the proceedings are terminated, upon request of a party, the arbitral tribunal shall
state, in the final award or by separate award, the costs of the arbitration […]"
"(1) Where the arbitral proceedings are terminated, the arbitral tribunal shall decide upon the
obligation to reimburse the costs of the proceedings, provided the parties have not
agreed otherwise. [...]
(4) In any case, the decision upon the liability to pay costs and the determination of the
amount shall be made in the form of an arbitral award under Article 606 of this Law.
(5) If no decision was made upon the liability to pay costs, or the amount to be reimbursed
was not determined, or was only able to be determined after termination of the arbitral
proceedings, the decision shall be made in a separate arbitral award."
Sec 609 öZPO
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Categories of costs in arbitration
1. The administrative charges of any arbitral institution which is involved

2. The fees and expenses of the arbitral tribunal
never fixed by the arbitral tribunal (forbidden decision in own cause), but by the
arbitration institution
3. The fees and expenses of legal counsel
4. The fees and expenses of any experts
5. The fees and expenses of any other professionals whose services may be
required (e.g., transcribers and interpreters)
6. The cost of hire of the hearing room and facilities
7. Witness expenses
8. Any internal costs of the parties
"hidden costs": reimbursement of internal costs limited
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Legal Basis for allocation of costs in arbitral proceedings
"In making decisions as to costs, the arbitral tribunal may take into account such
circumstances as it considers relevant, including the extent to which each party has conducted
the arbitration in an expeditious and cost-effective manner."
"[…] The arbitral tribunal shall establish who will bear the costs of the proceedings or the
apportionment of these costs.
Unless the parties have agreed otherwise, the arbitral tribunal shall decide on the allocation of
costs in the manner it deems appropriate. "
"[…] The arbitral tribunal shall in exercise of its discretion take into consideration the
circumstances of the individual case, in particular the outcome of the proceedings. The
obligation to reimburse may include any and all reasonable costs appropriate for bringing the
action or defence. […]"
Sec 609(1) öZPO
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I.C.6. DEFAULT AWARD
Characteristics of Default Awards
• Most arbitration laws and rules provide for default awards/inherent authority
• A party (usually respondent) fails to participate and to present its case in the
arbitral proceedings
• Arbitral tribunal not prevented from proceeding and rendering award
• Default awards have the same status and effects as awards rendered in
proceedings in which both parties participate
default awards are final and binding awards
default awards are subject to annulment, recognition and enforcement
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Specifics
• Right to be heard must be guaranteed
e.g., the Respondent has to be served with the statement of claim and all other
communications (must be verifiable)
e.g., must be given opportunity to file submissions/evidence & appear at oral hearings
• No fiction of truth
The tribunal then must issue an award based upon the evidence that has been submitted,
not only on the basis of the assertions of the participating party
• If this is not adhered to (violation of the right to be heard):

award can be set aside
no enforcement of the award under the New York Convention (Art V(1)(b))
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Legal Basis for Default Awards
"[if] any party fails to appear at a hearing or to produce documentary evidence, the arbitral
tribunal may continue the proceedings and make the award on the evidence before it.“
Art 25(c) UNCITRAL Model Law
" If any of the parties refuses or fails to take part in the arbitration or any stage thereof, the
arbitration shall proceed notwithstanding such refusal or failure. "
"The arbitration shall proceed notwithstanding the failure of any party to participate."
"Where the defendant fails to respond in accordance with Article 597 paragraph (1) of this
Law, within the agreed or stipulated period, 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 is in default
concerning any other act in the proceedings. The arbitral tribunal may continue the
proceedings and may make an award on the basis of the evidence before it. […]"
Sec 600(2) öZPO
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I.C. Cases
Case 1
A and B are parties to an arbitration in Austria. A requests payment of
EUR 1 Mio for microchips it sold to B in 2008. B argues that A's claims
have become time-barred and that B has counterclaims against A,
exceeding A's claims. However, A argues that B's CEO has already
acknowledged B's dept and, hence, the statute of limitations was
suspended. B states that preparing its counterclaim would be very time-
consuming and only necessary if A's claims have not become time
barred.
Upon the parties' request, the arbitral tribunal renders a decision,
holding that A's claims have not become time barred.
a. Type of decision?
b. Impact on proceedings?
c. Remedies of B?
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I.C. Cases
Case 2
A and B are parties to an arbitration. A requests payment of EUR
50,000,000 for medical devices it sold to B. Furthermore, A claims for
damages in the amount of EUR 1,250,000 it allegedly incurred due to
fraudulent behavior of one of B's employees. The evidence regarding the
claim for EUR 50,000,000 is quite clear, while the circumstances of the
alleged fraud (EUR 1,250,000) are extremely complex and lengthy
evidentiary proceedings will have to be conducted.
a. A is in desperate need for cash to avoid an impending insolvency.

What could A do with respect to the arbitration?
b. What are the consequences of such an approach?
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I.C. Cases
Case 3
A and B are parties to an arbitration. The arbitral tribunal issues an
award. The front page of the award simply shows the term "Award". A
and B are not sure if this award is meant to be (i) an interim award, (ii)
a partial award or (iii) a final award.
a. How can the parties figure out what type of award has been rendered?
b. Does an award have to be explicitly designated as being an interim,

partial or final award?
c. Why is it important to know what type of award has been rendered?
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I.C. Cases
Case 4
A and B are parties to an arbitration. A files a statement of claims,
claiming for EUR 500,000. B is served with the statement of claims, but
does not file a memorandum in reply and fails to attend any oral
hearings. A requests the arbitral tribunal to render the award.
a. Can the arbitral tribunal decide on A's claims despite B's refusal to
participate in the proceedings?
b. What are the consequences of such an approach? Why must the
arbitral tribunal be careful?
Var: B initially participates in the proceedings and files a memorandum

in reply, arguing that A's claims have long become time-barred.
However, after the memorandum in reply, B ceases all communications
with A and the arbitral tribunal.
c. On what basis will the arbitral tribunal render the award?
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I.D. MAKING OF THE AWARD
Decision-Making Issues
(i) Can an award be made by majority vote?

2 arbitrators in agreement
(ii) In case of deadlock, can the chairman decide alone?

all 3 arbitrators have different opinions
Can parties agree that chairman decides alone?
Has chairman authority where no party agreement?
Consequence if there was no agreement (and yet award was rendered)?
(iii) Refusal to take part in vote/decision by truncated tribunal

Can other arbitrators proceed with the decision-making?
Can you think of any limitations?
What happens in case the dispute is not yet ready for decision (Fehlen der
Spruchreife)?
(iv) Dissenting/concurring opinions

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(i) Can an award be made by majority vote?
• General rule: Arbitration laws and leading arbitration rules allow for majority
decision
(ii) In case of deadlock, can the chairman decide alone?

• A number of national arbitration laws provide for the chairman’s authority to end
a deadlock by deciding the dispute alone
UNCITRAL Model Law and öZPO do not contain such provision no authority for
chairman unless authorized by parties (also impliedly by agreeing on arbitration rules
that give such power)
possible ground for setting aside the award if it has been rendered by chairman alone
without the necessary authorization by agreement/law/rules
• Many leading arbitration rules provide for authority of the chairman alone
"[…] If there is no majority, the award shall be made by the president of the arbitral
tribunal alone."
"[…] If the arbitrators cannot form a majority, the chairman shall decide."
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(iii) Refusal to take part in vote/decision by truncated tribunal
• Many arbitration laws/rules allow for decision by truncated tribunals

Sec 604 öZPO, Art 31(1) ICC Rules 2012
no rule in UNCITRAL Model Law
• General rule: Refusing arbitrator must have been given reasonable opportunity
to deliberate and participate in the vote.
• Some provisions require that parties be informed about refusal prior to decision-
making
• Some provisions require that there must not have been a valid reason for refusal
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Legal Basis for Decision-Making in Arbitral Proceedings
"In arbitral proceedings with more than one arbitrator, any decision of the arbitral tribunal
shall be made, unless otherwise agreed by the parties, by a majority of all its members.
However, questions of procedure may be decided by a presiding arbitrator, if so authorized by
the parties or all members of the arbitral tribunal."
Art 29 UNCITRAL Model Law
"When the arbitral tribunal is composed of more than one arbitrator, an award is made by a
majority decision. If there is no majority, the award shall be made by the president of the
arbitral tribunal alone."
"Every award and every other decision of the arbitral tribunal requires a majority ruling of its
members. If the arbitrators cannot form a majority, the chairman shall decide."
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Legal Basis for Decision-Making in Arbitral Proceedings
"Unless otherwise agreed by the parties, the following shall apply:

(1) In arbitral proceedings with more than one arbitrator, any decision of the arbitral tribunal
shall be made by a majority of all its members. Questions of procedure may be decided
by the presiding arbitrator alone if so authorized by the parties or by all members of the
arbitral tribunal.
(2) Where one or more arbitrators do not participate in a vote without justified reason, the
other arbitrators may decide without them. In this case, it shall also apply that the
necessary majority of votes is to be calculated by the total of all participating and not
participating arbitrators. In the case of taking of votes for an award, the parties must
receive prior information on the intention to proceed in this manner. With regard to other
decisions, the parties are to be informed afterwards about the failure to participate in the
vote."
Sec 604 öZPO
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I.D. Case
Case 5
4,200,000 for goods it sold to B. During the arbitration, B files a
counterclaim, arguing that it suffered from damages amounting to EUR
6,000,000 due to late delivery of the goods by A.
Finally, the arbitral tribunal, consisting of three arbitrators, wants to

render its final award. Arbitrator [1] wants to award A’s claims and
dismiss B’s counterclaim, arbitrator [2] wants to dismiss A’s claims and
award B’s claims and arbitrator [3] (the chairman of the tribunal) wants
to award both A’s claims and B’s counterclaims.
a. Can an award be rendered despite the different opinions of the

arbitrators?
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(iv) Dissenting/Concurring Opinion
• What is a dissenting/concurring opinion?

• Does not form part of the award
attached to the award or delivered separately from the award
mere statement, not subject to challenge/enforcement
• Most arbitration laws and rules are silent on dissenting/concurring opinions

no prohibition against dissenting opinions in common law countries; commentators of
some civil law jurisdictions argue that dissenting opinions – although not expressly
prohibited by national law – are violating the secrecy of deliberations and are, thus,
inadmissible (esp. France & Germany)
prevailing opinion: generally permissible without express statutory
authorization
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I.E. FORM OF THE AWARD
Form of the Award
• Form requirements are governed by arbitration laws/rules
• To safeguard recognition & enforcement, requirements of New York Convention

must also be adhered to
• New York Convention does not contain explicit form requirement, but requires
presentation of a duly authenticated original award or a duly certified copy
thereof, presupposing the existence of a written instrument (Art IV(1)(a) NYC)
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Writing & Signature Requirements in National Laws/Arb. Rules
• Requirement of a written award: decision of the tribunal must be clearly

documented
important for the parties
important for possible setting aside proceedings (annulment of award)
important for enforcement proceedings (e.g. under the New York Convention)
• Requirement of a signed award

principle: all arbitrators have to sign the award
would give dissenting arbitrator the power to block the issuing of the award
• Refusal of an arbitrator to sign the award

national laws/arbitration rules generally permit awards signed only by majority
explanation by the chairman of the missing signature(s) is generally required
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Date, Place and Language of the Award
• Award has to be dated

important for certain time limits, e.g. for correction of an award ex officio or for
confirmation of the award (US arbitration law)
important for the time limit for the initiation of setting aside proceedings; however, these
time limits generally only start after receipt of the award
• Place of the award must be stated, can have significant consequences

lex arbitri (arbitration law at the seat of the arbitration)
important for setting aside proceedings
• Language of the award = (typically) language of the proceedings
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I.F. CONTENT AND STRUCTURE OF THE AWARD
Content and Structure of a Final Award
• Specification of the parties;
• Basis for jurisdiction of the tribunal;
• Procedural background;
• Factual background;
• Positions of the parties;
• Issues for determination by the tribunal;
• Evidence submitted/relied upon by the tribunal;
• Tribunal's analysis and conclusion on each of the issues in dispute;
• Determination of costs; and
• Holding (= enforceable part).
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I.F. CONTENT AND STRUCTURE OF THE AWARD
Reasoning of the Award
• General rule:
arbitral awards must be reasoned
unless parties have agreed otherwise or the award is an award on agreed terms
"The award shall state the reasons upon which it is based, unless the parties have agreed that
no reasons are to be given or the award is an award on agreed terms under article 30."
"The award shall state the reasons upon which it is based."

"Awards shall be in writing. Awards shall state the reasons on which they are based unless all
parties have agreed in writing or in the oral hearing that the award may exclude the reasons."
"Unless the parties have agreed otherwise, the award shall state the reasons upon which it is
based."
Sec 606(2) öZPO
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(Form) Requirements
"(1) The award shall be made in writing and shall be signed by the arbitrator or
arbitrators. Unless otherwise agreed by the parties, in arbitral proceedings with more
than one arbitrator, the signatures of the majority of all members of the arbitral tribunal
shall suffice, provided that the reason for any omitted signature is stated on the arbitral
award by the presiding or another arbitrator.
(2) Unless the parties have agreed otherwise, the award shall state the reasons upon which
it is based.
(3) The award shall state the date on which it was made and the place of arbitration as
determined in accordance with Article 595 paragraph (1) of this Law. The award shall be
deemed to have been made on that day and at that place."
Sec 606 öZPO
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(Form) Requirements
"(1) The award shall be made in writing and shall be signed by the arbitrator or
arbitrators. In arbitral proceedings with more than one arbitrator, the signatures of the
majority of all members of the arbitral tribunal shall suffice, provided that the reason for
any omitted signature is stated.
(2) The award shall state the reasons upon which it is based, unless the parties shave agreed
that no reasons are to be given or the award is an award on agreed terms under article
30.
(3) The award shall state its date and the place of arbitration as determined in accordance
with article 20(1). The award shall be deemed to have been made at that place.
[…]"
"(1) Awards shall be in writing. Awards shall state the reasons on which they are based
unless all parties have agreed in writing or in the oral hearing that the award may
exclude the reasons.
(2) The award shall identify the date on which it was issued and the place of arbitration
(Article 25).
(3) All original copies of an award shall be signed [...]"
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I.G. CORRECTION OF THE AWARD
Correctable Errors
• Only minor errors may be corrected

computational errors
typographical errors
clerical errors
printing errors
errors of similar nature
• The tribunal may not change its opinion/reach a new decision, but only rectify
the text of the award so that the wording complies with the tribunal's intended
decision
no new arguments on the merits may be considered
correction of the award ≠ appeal!
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Procedure for Correction of the Award
• Correction is done by the arbitral tribunal (never by an arbitral institution)

Upon party application or ex officio
• Other party has to be notified and heard before tribunal decides on the request
preserve the other party's right to be heard
• Correction becomes part of original award

fully enforceable
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Legal Basis for Correction of the Award
"(1) Within thirty days of receipt of the award, unless another period of time has been agreed
upon by the parties:
(a) a party, with notice to the other party, may request the arbitral tribunal to correct in
the award any errors in computation, any clerical or typographical errors or any
errors of similar nature; […]
(2) The arbitral tribunal may correct any error of the type referred to in paragraph (1)(a) of
this article on its own initiative within thirty days of the date of the award."
Art 32(1), Art 32(2) UNCITRAL Model Law
"On its own initiative, the arbitral tribunal may correct a clerical, computational or
typographical error, or any errors of similar nature contained in an award, provided such
correction is submitted for approval to the Court within 30 days of the date of such award."
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Legal Basis for Correction of the Award
Secretariat for the arbitral tribunal:
1.1 to correct any computational, typographical, printing or similar errors in the award; […]"
"(1) Unless another period of time has been agreed upon by the parties, each party may within
four weeks of receipt of the award request the arbitral tribunal:
1. to correct in the award any errors in computation, any clerical or typographical errors
or any errors of similar nature; [...]
(2) The application under paragraph (1) of this Article shall be delivered to the other party.
Prior to making a decision upon such an application, the other party is to be heard.
(3) The arbitral tribunal shall decide upon the correction or interpretation of the award within
four weeks and upon an additional award within eight weeks.
(4) The arbitral tribunal may correct any error of the type referred to in paragraph (1)
number 1 of this Article on its own initiative within four weeks of the date of the award.
(5) The provisions of Article 606 of this Law shall apply to the correction, interpretation or
making of an additional award. The interpretation or correction shall form part of the
arbitral award."
Sec 610 öZPO
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I.G. INTERPRETATION OF THE AWARD
Interpretation of the Award
• Interpretation is done by the arbitral tribunal (never by an arbitral institution)

only upon request of a party, never ex officio
• Possible if the operative part of an award is unclear or if the award appears to

place inconsistent obligations on the parties
• Only the operative part of the award may be interpreted by

not the reasoning!
• Parties may not bring forward new arguments in their request for interpretation
interpretation of the award ≠ appeal!
• Parties can exclude the interpretation of the award in the arbitral agreement
(see Sec 619(1)(2) öZPO)
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I.G. INTERPRETATION OF THE AWARD
Legal Basis for Interpretation of the Award
"[…] if so agreed by the parties, a party, with notice to the other party, may request the
arbitral tribunal to give an interpretation of a specific point or part of the award."
Art 33(1)(b) UNCITRAL Model Law
Any application of a party for the […] interpretation of an award, must be made to the
Secretariat within 30 days of the receipt of the award by such party, in a number of copies as
stated in Article 3(1). […]"
Art 35(2) ICC Rules 2012
Secretariat for the arbitral tribunal: [...]
1.2 to clarify specific parts of the award; […]"
"Unless another period of time has been agreed upon by the parties, each party may within
four weeks of receipt of the award request the arbitral tribunal:
1. […]
2. if so agreed by the parties, to give an interpretation to certain parts of the award; [...]"
Sec 610(1) öZPO
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I.G. Case
Case 6
A (claimant) and B (respondent) are parties to an arbitration. The
arbitral tribunal renders its final award. According to the arbitral award,
B has to pay to A the amount of "ATS 750,000". However, both in the
parties' submissions and in the correspondence between the arbitral
tribunal and the parties, the amount in dispute has always been referred
to as "EUR 700,000". Both parties are served with the award on 22
October 2013.
a. What problems does B face? Is there anything B can do?
b. How should the arbitral tribunal proceed?
According to the arbitral award, B has to pay to A the amount of

EUR 750,000. However, B is convinced that this decision is "wrong",
arguing that a part of the amount (EUR 500,000) has already become
time-barred.
c. Is there anything B can do?
www.dbj.at Page 46
I.G. Case
Case 7
A (claimant) and B (respondent) are parties to an arbitration. The
arbitral tribunal renders its final award. According to the arbitral award,
B has to pay to A the "amount of 700,000". As the proceedings dealt
with claims in EUR and claims in GBP, the parties do not know if the
arbitral tribunal awarded EUR 700,000 or GBP 700,000.
a. What can the parties (A or B) do?
www.dbj.at Page 47

Parties
Terms/Consent Award
Continuation of
Proceedings
• Award on Costs
• Default Award
www.dbj.at Page 48
II. SETTLEMENT
Out of Court Settlement
• Contract between the parties ending dispute
• Tribunal terminates arbitration with order
• If one party does not fulfill its obligation:

no direct enforcement (unless concluded as a notarial deed)
other party has to initiate new arbitration/court proceedings (in Austria: unless concluded
as a notarial deed)
enforcement of court decisions regarding the settlement may be much more difficult
abroad than the enforcement of arbitral awards (New York Convention)
www.dbj.at Page 49
II. SETTLEMENT
Recorded Settlement
• Explicitly provided for by Vienna Rules 2013 and öZPO
• Requirements:
joint request by all parties
must be covered by arbitration agreement
signing of the recorded settlement by all parties and the chairman of the arbitral
tribunal
Sec 605 öZPO: no violation of ordre public
• Can constitute an enforcement title

no separate proceedings on the merits necessary
e.g., Sec 1(16) Austrian Enforcement Code
but: only in some jurisdictions, not enforceable under the New York Convention as it is
not an arbitral award
www.dbj.at Page 50
II. SETTLEMENT
Award on Agreed Terms

• = Consent Award
• Settlement is recorded in the form of an arbitral award
• Requirements:
joint request by all parties
must be covered by arbitration agreement
Sec 605 öZPO: no violation of ordre public
most arbitration laws/arbitration rules do not require the arbitral tribunal to give reasons
for awards on agreed terms
• Equal to any other (final) award

enforcement and recognition under the New York Convention
www.dbj.at Page 51
II. SETTLEMENT
Legal Basis for Settlements
"(1) If, during arbitral proceedings, the parties settle the dispute, the arbitral tribunal shall
terminate the proceedings and, if requested by the parties and not objected to by the arbitral
tribunal, record the settlement in the form of an arbitral award on agreed terms.
(2) An award on agreed terms shall be made in accordance with the provisions of article 31
and shall state that it is an award. Such an award has the same status and effect as any other
award on the merits of the case."
"If the parties reach a settlement after the file has been transmitted to the arbitral tribunal in
accordance with Article 16, the settlement shall be recorded in the form of an award made by
consent of the parties, if so requested by the parties and if the arbitral tribunal agrees to do
so."
Art 32 ICC Arbitration Rules 2012
"The parties may request that a settlement which they have reached be recorded or that the
settlement be rendered in the form of an award on agreed terms."
www.dbj.at Page 52
II. SETTLEMENT
Legal Basis for Settlements
"If during arbitral proceedings the parties settle the dispute and if the parties are able to agree
a settlement on the matter in dispute, they may request:
1. the arbitral tribunal to draw up a record of the settlement, provided that the contents of the
settlement is not in
conflict with the fundamentals of the Austrian legal system (ordre public); it shall be sufficient
if the record of the settlement is signed by the parties and the presiding arbitrator;
2. the arbitral tribunal to record the settlement in the form of an arbitral award on agreed
terms, provided that the contents of the settlement is not in conflict with
the fundamentals of the Austrian legal system (ordre public). Such an award is to be made in
accordance with Article 606 of this Law and has the same status and effect as any other award
on the merits of the case."
Sec 605 öZPO
www.dbj.at Page 53
II. Case
Case 8
A and B are parties to an arbitration under the Vienna Rules 2013. In
the course of the proceedings, B proposes a settlement, which B
subsequently accepts.
a. What types of settlements are available to the parties?
b. What are the differences between these settlement types?
The arbitral tribunal renders an award on agreed terms as requested by

the parties. The award does not contain any reasoning.
c. Does this pose a problem?
www.dbj.at Page 54


Parties
Terms/Consent Award
Continuation of
Proceedings
• Award on Costs
• Default Award
www.dbj.at Page 55
III. ORDER BY THE ARBITRAL TRIBUNAL
A. Withdrawal of Claims
• Possible at any stage of the proceedings
• Does not lead to termination of proceedings ipso iure

termination only by order of the tribunal
• Respondent may object no termination if tribunal recognizes legitimate

interest of respondent to continue proceedings
• "Legitimate interest":
if claimant does not waive its claims
if claimant uses withdrawal to force respondent to participate in other proceedings
controversial: if respondent has already spent a significant sum on its defense
• No award on the merits, but separate award on costs
www.dbj.at Page 56
B. Parties' Agreement on Termination
• = Aspect of principle of party autonomy
• Tribunal has no discretion and is obliged to terminate proceedings if requested to

do so by all parties
• 2 possible reasons
parties concluded an (out-of-court or recorded) settlement to resolve the dispute
simple agreement not to proceed with the arbitration
• Parties should agree on allocation of costs to avoid difficulties
www.dbj.at Page 57
C. Impossibility/No Further Need to Continue the Proceedings

• Arbitral tribunal has obligation to terminate proceedings if continuation of the
proceeding has become impossible or unnecessary
• Decision ex officio by order
• Parties have to be notified
• "Unnecessary" or "impossible" = e.g.,

settlement
parties fail to pay advance on costs
statement of claims cannot be delivered to respondent
claimant does not proceed with arbitration
arbitrators are unable to reach a decision
www.dbj.at Page 58
Legal Basis for Termination by Order
"(1) The arbitral proceedings are terminated by the fi nal award or by an order of the arbitral
in accordance with paragraph (2) of this article.
(2) The arbitral tribunal shall issue an order for the termination of the arbitral proceedings
when:
(a) the claimant withdraws his claim, unless the respondent objects thereto and the arbitral
tribunal recognizes a legitimate interest on his part in obtaining a final settlement of the
dispute;
(b) the parties agree on the termination of the proceedings;
(c) the arbitral tribunal finds that the continuation of the proceedings has for any other
reason become unnecessary or impossible.
(3) The mandate of the arbitral tribunal terminates with the termination of the arbitral
proceedings, subject to the provision of articles 33 and 34(4)."
www.dbj.at Page 59
"(1) The arbitral proceedings are terminated by the final award, an arbitral settlement, or by
an order of the arbitral tribunal in accordance with paragraph (2) of this Article.
(2) The arbitral tribunal shall terminate the arbitral proceedings when:
1. the claimant fails to file his claim in accordance with Article 597 paragraph (1);
2. the claimant withdraws his claim, unless the respondent objects thereto and the
arbitral tribunal recognizes a legitimate interest on his part in obtaining a final settlement
of the dispute;
3. the parties agree on the termination of the proceedings and communicate this to the
arbitral tribunal;
4. the arbitral tribunal finds that the continuation of the proceedings has become
impossible, in particular when the parties active so far in the proceedings do not
continue the arbitral proceedings despite written notification by the arbitral tribunal which
refers to the possibility of terminating the arbitral proceedings.
(3) The mandate of the arbitral tribunal terminates with the termination of the arbitral
proceedings, subject to the provisions of Articles 606(4) to (6), 609(5) and 610 of this
Law as well as to the obligation to set aside an order on an interim or protective
measure."
Sec 608 öZPO
www.dbj.at Page 60
"The proceedings are terminated

(1) by the rendering of an award; or
(2) by the conclusion of a settlement (Article 38); or
(3) by an order of the arbitral tribunal, if
3.1 the claimant withdraws its Statement of Claim, unless the respondent objects and the
arbitral tribunal recognizes a legitimate interest of the respondent in obtaining a final
resolution of the dispute;
3.2 the parties agree to the termination of the arbitration and communicate this agreement
to the arbitral tribunal;
3.3 the continuation of the proceedings has become impossible for the arbitral tribunal,
in particular because the parties to the arbitration do not pursue the arbitration further
despite a written order from the arbitral tribunal, in which it refers to the possibility of
terminating the arbitration; […]"
www.dbj.at Page 61
III. Case
Case 9
900,000 for security services. After twenty months and after several
oral hearings have been conducted, A suddenly withdraws its statement
of claims.
Var.: A does not withdraw its statement of claims, but the parties agree
that the arbitral proceedings be terminated.
a. What will the arbitral tribunal do?

b. Can B obtain reimbursement of its costs?
www.dbj.at Page 62
International Law Office

Austrian Client
Choice Awards
CONTACT US 2013 and 2012
IFLR European Awards
Austrian Law Firm
of the Year 2013
Dr. Christoph Stippl, LL.M.
T +43-1- 533 47 95 102

F +43-1- 533 47 95-50102
christoph.stippl@dbj.at

Attorneys at Law
Universitätsring 10
A-1010 Vienna
www.dbj.at
This presentation has been prepared with

due care but can not replace individual
advice.
www.dbj.at Page 63

Termination of Arbitral Proceedings 20151027

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International Law Office

Termination of Arbitral Proceedings

Dr Christoph Stippl, LL.M. (Columbia), MCIArb

Termination of Arbitral Proceedings

I. by Award II. by Settlement III. by Order

TERMINATION OF ARBITRAL PROCEEDINGS

Termination of Arbitral Proceedings

Data courtesy of Vienna International Arbitral Centre (VIAC)

I. Arbitral Awards D. Making of the Award

Termination of Arbitral Proceedings

I. by Award II. by Settlement III. by Order

I.A. ARBITRAL AWARDS

I.B. TYPES OF RELIEF

Types of Relief in Arbitral Awards

I.C.1. INTERIM AWARD

Characteristics of Interim Awards

• Issued while arbitration is still in progress

• No final settlement of claims!

• Internationally, the term is often used synonymously with "partial award", as

I.C.1. INTERIM AWARD

• Interim awards can be set aside/recognized only in some jurisdictions

However, interim awards on jurisdiction can be set aside!

I.C.2. PARTIAL AWARD

Characteristics of Partial Awards

• Final in regard to the matters dealt with in the partial award

• No termination of the arbitral proceedings as a whole

• Binding on tribunal and parties

• Separate challenge and enforceability

I.C.3. FINAL AWARD

Characteristics of Final Awards

• Terminates the arbitral proceedings

• Usually contains the decision on costs

• Challengeable and enforceable

"The proceedings are terminated (1) by the rendering of an award; […]"

I.C.3. INTERIM/PARTIAL/FINAL AWARD

Interim Award Partial Award Final Award

• separable question • separable claim(s) • final decision on all

I.C. INTERIM AWARD & PARTIAL AWARD

"'award' includes, inter alia, an interim, partial or final award."

"Award includes any final, partial or interim award"

I.C.4. ADDITIONAL AWARD

Characteristics of Additional Awards

• Upon request of a party or ex officio

under some arbitration laws/rules: explicitly forbidden or restricted to certain issues

• Same effects as final/partial awards: final & binding; subject to annulment,

I.C.4. ADDITIONAL AWARD

Legal Basis for Additional Awards

I.C.5. AWARD ON COSTS

Characteristics of Awards on Costs

• Two possibilities to decide on the costs of the arbitral proceedings

ii. arbitral tribunal may deal with costs in a separate award

• Award on Costs = same consequences as other awards

can be subject to annulment proceedings

separate recognition & enforcement

I.C.5. AWARD ON COSTS

Legal Basis for Awards on Costs

I.C.5. AWARD ON COSTS

Categories of costs in arbitration

1. The administrative charges of any arbitral institution which is involved

I.C.5. AWARD ON COSTS

Legal Basis for allocation of costs in arbitral proceedings

I.C.6. DEFAULT AWARD

Characteristics of Default Awards

• Arbitral tribunal not prevented from proceeding and rendering award