Seat and hearing venue in arbitration: why they are not the same

Seat and hearing venue: why they are not the same addresses a practical mistake in preparing arbitration. The legal seat can differ from the place where an oral hearing or an evidentiary meeting actually takes place.

Under section 595 ZPO, the parties may agree the seat. Unless agreed otherwise, the arbitral tribunal may conduct procedural acts at any suitable place. Article 25 of the 2021 Vienna Rules follows the same distinction: absent a different agreement, Vienna is the seat; deliberations and procedural acts elsewhere do not change it.

This article does not provide a general choice-of-law guide. It shows which entries in the contract, institutional rules and procedural orders should be reviewed separately.

What the seat means in law

The seat is the legal connecting factor of the arbitration. Section 577 ZPO generally applies the Austrian arbitration provisions when the seat is in Austria. Certain provisions also apply where the seat is outside Austria or has not yet been determined.

Section 595 ZPO allows the parties to choose the seat freely or to leave its determination to an arbitral institution. If there is no agreement, the tribunal determines it by considering the circumstances, including the suitability of the place for the parties. A location in a contract should therefore not be read too quickly as a mere event venue.

The seat also matters for the award. Section 606(3) ZPO requires the award to state the seat determined under section 595(1); the award is treated as made on that date and at that place. That function is different from the room in which a hearing occurs.

Why a hearing can take place elsewhere

Under section 595(2) ZPO, unless the parties agreed otherwise, the tribunal may conduct procedural acts at any place it considers suitable. The provision expressly includes deliberations, decisions, oral hearings and evidence. The other venue does not automatically change the seat.

The 2021 Vienna Rules make the same distinction. Article 25(1) addresses the seat and provides for Vienna absent another agreement. Article 25(2) permits deliberations and procedural acts at any suitable place without changing the seat. The official English text is available from the VIAC website.

A VIAC case can therefore have Vienna as its legal seat while a hearing is held elsewhere for evidentiary, accessibility or technical reasons. That fact alone does not make another country the seat.

Plan hearing, evidence and language separately

The hearing venue does not automatically answer questions about the procedural language, evidence or substantive law. Section 598 ZPO addresses oral and written proceedings. If an oral hearing has not been excluded, the tribunal must hold one at a suitable stage when a party requests it.

When preparing the file, record the hearing venue, evidence location, procedural language and applicable law on separate lines. For witnesses and experts, also address travel, interpretation, remote access, documents and timely notice. Section 599 ZPO requires timely notice of hearings and meetings for taking evidence.

A different venue may be sensible organisationally. It does not replace review of the seat clause or of which courts may have statutory supporting functions.

Documents to prepare for the review

For an initial assessment, collect the full arbitration agreement, institutional rules, later procedural agreements and all procedural orders. Mark every location and state whether it concerns the seat, the hearing, evidence or only service and organisation.

Also helpful are the procedural calendar, notices, minutes, requests for an oral hearing, expert instructions and correspondence about a change of venue. If an award has already been issued, secure its seat wording, date of issue and proof of service separately.

The related contribution on the seat of arbitration and the scope of the Austrian ZPO covers the general Austrian framework. This article focuses on the practical distinction: where may the tribunal act without changing the seat?

Questions about seat and hearing venue

Is the hearing venue automatically the seat?

No. Section 595(2) ZPO allows procedural acts at another suitable place without changing the seat.

What applies to a VIAC case without a different agreement?

Article 25(1) of the 2021 Vienna Rules provides for Vienna as the seat absent another agreement. Article 25(2) permits deliberations and procedural acts elsewhere.

Can a change of venue still change the seat?

A different hearing or evidence venue does not change the seat merely because it is named. Whether there is an express new seat agreement must be assessed from the documents and procedural stage.

Next step

Contract, arbitration clause, correspondence and deadlines should be collected. It can then be assessed whether negotiation, preservation or arbitration is central.