Oberster Gerichtshof; 2016-09-28; 18 OCg 2/16t
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2016:018OCG00002.16T.0928.000
Date: 2016-09-28
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82016AT0928(51)_ENG_SUMJURE
JURE summary
JURE summary
In the Oberster Gerichtshof (the "OGH"), a former chairman and general manager (the "plaintiff") of the legal predecessor of the defendant (the "defendant") sought the annulment of the arbitration award, which had cancelled the agreement on the early severance of pension rights (the "pension severance agreement") between the plaintiff as the respondent in the arbitration actions and the defendant as the applicant in arbitration actions.
The defendant sought annulment of the pension severance agreement by means of the first arbitration action. The plaintiff, among other things, addressed the incompetence of the court of arbitration and the ineffectiveness of the arbitration agreement. The defendant withdrew this arbitration action. However, without the plaintiff's consent, the procedure was not completed.
The defendant sought the pension severance agreement’s annulment again by the second arbitration action, which was based on the employment contract‘s arbitration clause. The plaintiff knew that when the losses from the speculative business became public, he would lose the pension rights and therefore he pushed for their early severance.
The plaintiff sought the annulment of the above-mentioned arbitration award by the following arguments.
The court of arbitration had made a wrong decision on its jurisdiction. The arbitration clause applied only to the employment contract, but not to the separate pension severance agreement.
There was a breach of the dispute pending with respect of the first arbitration. The plaintiff has objected to the withdrawal of the claim. He has a legitimate interest in the final settlement of the dispute. The second arbitration action was brought in on the same dispute.
Due to the plaintiff's health problem, the court of arbitration terminated the proceedings without hearing the plaintiff, which is why his right to a fair hearing was violated.
The criminal court Landesgericht für Strafsachen Wien had reached the conclusion that the plaintiff was not to be assumed to have deceived or to have acted fraudulently by the court’s interrogation. The court of arbitration should have reached the same conclusion by its interrogation.
The OGH has dealt with the plaintiff’s arguments as follows.
The court of arbitration is competent. The arbitration clause applies to all disputes relating to the employment contract, including the pension severance agreement.
There is no dispute pending (in this case arbitration pending). The first court of arbitration has never constituted. The second court of arbitration has reached the conclusion that a decision of the first court of arbitration was, not only, not to be obtained in a reasonable time, but also, not at all, and therefore affirmed the admissibility of the second arbitration action.
There is no violation of the right to a fair hearing. According to the case law, fair hearing is preserved if the parties have the opportunity to express their views on all facts and evidence (¹). The plaintiff was represented by a lawyer throughout the proceedings and was able to participate in the proceedings through his lawyer.
A formal or substantial violation of ordre public must be negated because the acquittal in criminal proceedings have no binding effect in the civil procedure, even in national jurisdiction. Therefore, it is not at all necessary to take into account that a fraudulent misrepresentation according to AGBG (²) is subject to completely different conditions than criminal fraud according to the StGB (³).
The OGH rejected the plaintiff's complaint.
(¹) See decision 3 Ob 24/15y
(²) Gesetz Nr. 946/1811, Allgemeines bürgerliches Gesetzbuch für die gesamten deutschen Erbländer der Österreichischen Monarchie.
(³) Bundesgesetz Nr. 60/1974 über die mit gerichtlicher Strafe bedrohten Handlungen (Strafgesetzbuch – StGB).