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Document information VIAC Rules of Arbitration 2018, Article 8 [Answer to the

Statement of Claim]
Publication Nikolaus Pitkowitz; Klaudia Dobosz
Handbook VIAC Rules
(1) With the service of the Statement of Claim, the Secretary General shall request the respondent
of Arbitration and
to submit to the Secretariat an Answer to the Statement of Claim within a period of 30 days.
Mediation: A
Practitioner's Guide (2) The Answer to the Statement of Claim shall contain the following information:
(Second Edition)
2.1the full name, address and other contact details of the respondent;

Jurisdiction 2.2comments on the request for relief and the facts upon which the Statement of Claim is based, as
well as the respondent's specific request for relief;
Austria
2.3particulars regarding the number of arbitrators in accordance with Article 17;

Organization 2.4the nomination of an arbitrator if a panel of three arbitrators was agreed or requested, or a
request that the arbitrator be appointed by the Board.
Vienna International
Arbitral Centre Commentary (*)
1 Introduction; Purpose of the Provision
Entry into force The Secretary General serves the Statement of Claim on the respondent according to Art 7 para 4
1 January 2018 and Art 8 para 1. The requirements regarding the contents of the Answer to the Statement of Claim
are stipulated in Art 8 para 2 and remain unchanged as compared to the Vienna Rules 2013 (cf. in
Topics this respect mns 7 et seq.). These provisions serve the purpose of procedural efficiency and are
intended to facilitate fast handling of cases. Article 8 mirrors Art 7 which means that the
Investment Arbitration P 55
respondent may request that the arbitrator be appointed by the Board in his Answer to the
Bibliographic Statement of Claim (cf. in more detail mn 10).

reference 2 Service of the Statement of Claim

Pursuant to Art 7 para 4 the Statement of Claim must be served on the respondent if no order to
Nikolaus Pitkowitz and
remedy respectively no order to supplement was issued in accordance with Art 7 para 3 or if the
Klaudia Dobosz, 'VIAC Rules
of Arbitration 2018, Article 8 claimant has complied with such orders. For further administration by the VIAC, the Statement of
Claim must meet the requirements of Art 7. If the Secretary General serves the Statement of Claim
[Answer to the Statement of
on the respondent, this implies a confirmation of the fact that the Statement of Claim meets the
Claim]', in Vienna
requirements and that the claimant has paid the registration fee (cf. Art 10).
International Arbitral Centre
of the Austrian Federal The way in which the Statement of Claim is to be submitted is regulated in Art 7 para 1 and Art 12
Economic Chamber (ed), para 1; the way in which the Statement of Claim is to be served on the respondent is regulated in
Handbook VIAC Rules of Art 12 paras 3 and 4. An important innovation of the Vienna Rules 2018 is that the arbitration
Arbitration and Mediation: A proceedings are supported by an electronic case management system. Accordingly, arbitration
Practitioner's Guide (Second proceedings can be initiated by electronic submission of the Statement of Claim to VIAC.
Edition), (Verlag WKÖ Nevertheless, a sufficient number of copies of the Statement of Claim must also be submitted in
Service GmbH 2019) pp. 54 - hard copy. The Secretariat shall serve the Statement of Claim on the respondent primarily in hard
58 copy. This is primarily intended to serve the purpose of obtaining proof of service of the Statement
of Claim on the respondent by means of advice of delivery or other confirmations of service, which
is essential above all for enforcement (cf. Gantenberg/Kühn, Art 12 mns 9 et seq.).
Although Art 8 no longer requires that the respondent must be sent a copy of the Vienna Rules
together with the Statement of Claim, the Secretary General still encloses a copy thereof with the
Statement of Claim as an additional service. Moreover, the Secretary General refers to the list of
arbitrators published on the VIAC's website, including the information that the arbitrator(s) do(es)
not have to be selected from that list.
3 Time Limit for Answering the Statement of Claim and Form of Submission (Para 1)
At the same time as the Statement of Claim is served, the Secretary General requests the
respondent(s) to submit an Answer to the Statement of Claim within a period of 30 days. This time
limit, which may be extended on sufficient grounds, is satisfied if the Answer to the Statement of
Claim was dispatched on the last day of the deadline (Art 12 para 8). Until the file is transmitted, the
Secretary General will be responsible for extending the time limit, i.e. she will be the addressee of
such a request. Obviously the request must be substantiated, otherwise it will not
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 be possible to assess whether sufficient grounds exist. The respondent should also state the date
on which the extended time limit should end. The decision as to whether and for what period a time
limit will be extended is the responsibility of the Secretary General. The time limit may, in principle,
be extended several times but the Secretary General will only allow such extensions if sufficient
grounds that arose after the first request for an extension of the time limit for submission of the
Answer to the Statement of Claim can be proved. This could be evidence which was not available to
the respondent before without fault and which requires a new evaluation of the pleadings. The
Secretary General may also ask the claimant to comment on a request for extension of the time
limit. If sufficient grounds for an extension of the time limit for submission of the Answer to the
Statement of Claim exist, in most cases two separate extensions will be granted. On the one hand,
a short time limit will be granted for nominating an arbitrator so that the constitution of the arbitral
tribunal will not be hindered. On the other hand, a longer time limit will be granted for submission of
the Answer to the Statement of Claim in justified circumstances. Therefore, the parties (or their
representatives) are recommended to request extensions of two different time limits, if applicable.
Article 8 does not specify an explicit formal requirement for the submission of the Answer to the
Statement of Claim, which is why the forms of service of Art 12 para 3 apply. Due to the changeover
to the electronic case management system and the lack of necessity for service of the Answer to the
Statement of Claim in hard copy on the respondent, the Secretariat requests the respondent, if
possible, to submit the Answer to the Statement of Claim exclusively electronically. If, in addition to
the electronic submission, the Answer to the Statement of Claim is also submitted in hard copies,
VIAC will decide on a case-by-case basis whether to forward it to the parties and arbitrators (e.g. in
the case of extensive parts of the file or on request; see Vanas-Metzler/Rogge, Excursus Art 12 mn
49).
The Answer to the Statement of Claim together with the exhibits must be submitted to the
Secretariat, which will forward the Answer to the Statement of Claim to the parties and to the
arbitrator(s), however, to the latter only with formal transmission of the file to the arbitral tribunal (Art
11), provided that a tribunal has been appointed and the advance on costs has been fully paid (Art
42).
After handing over the case to the arbitral tribunal, the Secretariat receives all correspondence
between the arbitral tribunal and the parties in electronic form (Art 12). This process serves above
all to facilitate the administration of the arbitration proceedings by VIAC and to create a
simplification for the parties.
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4 Minimum Contents of the Answer to the Statement of Claim (Para 2)
The Answer to the Statement of Claim, mirroring the Statement of Claim (Art 7), must contain
certain minimum information, which is listed exhaustively in para 2. According to Art 8 para 2.1 the
Answer to the Statement of Claim must contain the name, address and contact details of the
respondent. This provision explicitly permits appropriate clarifications at an early stage of the
proceedings should the details differ from those given in the Statement of Claim.
Naturally, the question of whether the respondent may actually be subject to arbitration must be
decided by the arbitral tribunal.
According to Art 8 para 2.2 the Answer to the Statement of Claim must contain a (clear) comment
on the request for relief and on the facts of the case upon which the claimant relies as well as the
respondent's specific request for relief. Evidence need not be offered in the Answer to the
Statement of Claim.
Pursuant to para 2.3 the Answer to the Statement of Claim must contain particulars regarding the
number of arbitrators as defined in Art 17. In addition, para 2.4 provides for the nomination of an
arbitrator if a panel of three arbitrators has been agreed by the parties or requested by the
respondent. However, the respondent may also request that the arbitrator be appointed by the
Board. The Answer to the Statement of Claim may already contain objections to the confirmation of
a nominated arbitrator (Art 19 para 1).
5 Consequences of Missing, Defective or Late Submission of an Answer to the
Statement of Claim
The respondent cannot be forced to actively participate in the proceedings (previous practice of the
VIAC has shown that in approximately 10 per cent of all cases the respondents did not participate in
the arbitration). The arbitration will proceed even if the respondent submits no (or an insufficient)
Answer to the Statement of Claim (cf. Art 29 para 2; Haugeneder/Netal, Art 29 mn 18). Even an
Answer to the Statement of Claim that is submitted after the 30-day period must be accepted by the
Secretary General and forwarded to the arbitral tribunal (cf. Art 11). The arbitral tribunal alone is to
assess the consequences of the respondent's default; in this context reference should be made to

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 Art 28 para 2, which provides that, if it gives advance notice, the arbitral tribunal may allow
pleadings of the parties only up to a certain point in the proceedings (cf. Haugeneder/Netal, Art 28
mn 25).
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If the respondent fails to submit an Answer to the Statement of Claim (respectively submits a
defective Answer to the Statement of Claim), the respondent might risk losing the opportunity to
influence the constitution of the arbitral tribunal (Art 17) if he fails to nominate an arbitrator in time.
Non-submission or late submission of an Answer to the Statement of Claim cannot prevent the
constitution of the arbitral tribunal and a substitute arbitrator will be appointed. Thus, it is
recommendable to always nominate an arbitrator in time, even if an extension of the time limit for
submitting the Answer to the Statement of Claim has been requested.
6 Counterclaim; Representative's Power of Attorney
In order to avoid any delay in the proceedings, a counterclaim (cf. in this respect Art 9) should be
included in the Answer to the Statement of Claim.
If the respondent has already appointed a representative it is also recommended to enclose the
relevant power of attorney (even though, pursuant to Art 13, proof of power of attorney need only be
furnished upon request).
7 Order to Remedy and Supplement
Although Art 8 contains no provision on remedy or supplement such as Art 7 para 3, the Secretary
General may, by analogy, request the respondent to remedy or supplement the Answer to the
Statement of Claim within a set deadline if necessary details or exhibits are missing.
8 Plea of Lack of Jurisdiction
Article 8 para 2 does not provide that the respondent must comment on the arbitration agreement.
However, it follows from Art 24 para 1 that the plea of lack of jurisdiction of the arbitral tribunal must
be raised at the latest with the first submission on the merits. Accordingly, if the respondent does
not raise the plea of lack of jurisdiction in the Answer to the Statement of Claim, he may be barred
from this possibility (see also Pickl/Heider, Art 24 mns 3 et seqq.). (1)
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References
*)
This commentary is based on Walter H. Rechberger / Nikolaus Pitkowitz in Handbook Vienna
Rules (2014).
1)
Cf. Platte in Czernich/Deixler/Schauer, Handbuch Schiedsrecht mn 35.32 with further references.

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