POTROŠNIK ALI PODJETNIK?

A landmark decision of the Austrian Supreme Court clarifying when parties to arbitration agreements should be treated as consumers or entrepreneurs

dr. Christian Aschauer

This issues dealt with in the present article are highly relevant to non-Austrian parties who wish to enter into corporate transactions and agree to arbitrate any disputes in Austria. By judgement dated 16 December 2013, 6 Ob 43/13, the Austrian Supreme Court held that the restrictions contained in sec. 617 of the Austrian Code of Civil Procedure (In the following also „CCP“), which make it practically impossible to conclude arbitration agreements with consumers, apply even to arbitration clauses contained in agreements in a corporate law context. However, in the specific case the Supreme Court confirmed the validity of the parties’ arbitration agreement, finding that the Bulgarian individual and the Liechtenstein “Anstalt” in question should be deemed entrepreneurs. While the author fully agrees with the result of the judgement, he will propose an alternative line of reasoning based on Art. II of the New York Convention.