Applicable requirements as to the form of arbitral awards
Applicable legislation as to the form of awards
1 Must an award take any particular form?
An arbitral award must be in writing. Unless agreed otherwise, it must be written in the language of the arbitral proceedings. Further, the award must be signed by all arbitrators. This mandatory requirement is also satisfied when a minority of arbitrators refuses to sign it or is unable to do so. If this is the case, the arbitrator must record the reason for not signing the award.
The award must also contain the date and the place where it was rendered (i.e., the place of arbitration as agreed by the parties). A failure to do so, however, does not constitute a ground to set aside the award.
Unless agreed otherwise, the arbitral award must be reasoned. Failure to provide reasoning constitutes a violation of Austrian procedural public policy and may be invoked as grounds for setting aside the award. The reasoning should put the parties in a position to understand how the arbitral tribunal comes to its finding. Notably, the party seeking to have the award set aside is precluded from doing so if the arbitral agreement (including the applicable arbitration rules) provides that the parties may file a request for clarification with the arbitral tribunal and the party has failed to make this request.
Applicable procedural law for recourse against an award
Applicable legislation governing recourse against an award
2 Are there provisions governing modification, clarification or correction of an award? Are there provisions governing retractation or revision of an award? Under what circumstances may an award be retracted or revised (for fraud or other reasons)?
Once the award has been rendered, the arbitral tribunal becomes functus officio. It may therefore not alter or rescind its award. However, Austrian arbitration law expressly allows the arbitral tribunal to provide an explanation of the award or to correct calculation, spelling or printing errors in the award upon request of a party. It may also provide a correction of the award on its own motion within four weeks of the date of the award.
An arbitral tribunal may also render an additional award on requests raised during the arbitration that were not decided in the original award.
For a party to request an explanation of the arbitration award, there must be an agreement to that effect, either by party agreement or by the applicable arbitration rules. The request for explanation, correction or for an additional award must be transmitted to the other party, who must be given adequate opportunity to be heard. The tribunal then has four weeks to decide on a request to explain or correct the award and eight weeks for a request to render an additional award.
An explanation and a correction constitute parts of the original award and do not have any effect on the running of the period for challenging the award and may not be set aside in independent proceedings. An additional award, however, represents a new, separate award. Therefore, it may be set aside in separate proceedings and the period for challenging it starts running on receipt of the additional award by the party seeking to have it set aside.
The setting aside of an arbitral award, in principle, is possible only on the grounds specified in Section 611 of the Austrian Code of Civil Procedure (ACCP), which lists as one of the grounds for annulment of an arbitral award that the conditions for the reopening of court proceedings exist (i.e., in cases of procedural fraud or other criminal acts). The time limit for filing a request for setting aside on that basis is four weeks from the date on which the judgment confirming the criminal offence becomes final. In any event, an absolute time limit of 10 years applies. Additionally, instances of fraud would also violate Austrian procedural public policy.
Appeals from an award
3 May an award be appealed to or set aside by the courts? What are the differences between appeals and applications to set aside awards?
An arbitral award rendered in Austria may become subject to setting-aside proceedings under the ACCP. Except for awards rendered in labour and consumer disputes, the challenge will be heard directly by the Austrian Supreme Court. If successful, the motion will result in the setting aside of the award. Unless the parties have agreed on an appeal mechanism, this is the only recourse available under Austrian law.
If the parties agree on the possibility of an appeal, the grounds for appeal and the number of instances must be determined in the parties’ respective agreement.
Applicable procedural law for setting aside of arbitral awards
4 Is there a time limit for applying for the setting aside of an arbitral award?
A challenge must be brought within three months of receipt of the award. This time limit is not dispositive. Hence, it cannot be extended and must be observed by the court ex officio. Importantly, an application for the correction or explanation of an arbitral award does not extend this period.
5 What kind of arbitral decision can be set aside in your jurisdiction? Can courts set aside partial or interim awards?
All arbitral awards that conclusively settle one or more of aspects of a claim may be subject to challenge. In principle, therefore, interim and partial arbitral awards can be challenged (and eventually set aside), provided that they conclusively settle a separate issue in dispute. This also applies to awards on jurisdiction.
6 Which court has jurisdiction over an application for the setting aside of an arbitral award?
Under Austrian law, the Supreme Court has exclusive jurisdiction over an action to set aside an arbitral award, acting as the first and final instance.
Form of application and required documentation
7 What documentation is required when applying for the setting aside of an arbitral award?
Any action for setting aside an arbitral award must comply with the general formal requirements (i.e., to designate the court, the parties and the matter in dispute).
The arbitral award itself needs to be attached to the application – including, if necessary, a certified translation.
Translation of required documentation
8 If the required documentation is drafted in a language other than the official language of your jurisdiction, is it necessary to submit a translation with the application for the setting aside of an arbitral award? If yes, in what form must the translation be?
If the arbitral award has not been issued in German, a certified translation (of the entire award) established by a sworn translator needs to be provided with the application for setting aside. If the applicant fails to provide such a translation, the court issues an order to remedy this failure.
Other practical requirements
9 What are the other practical requirements relating to the setting aside of an arbitral award? Are there any limitations on the language and length of the submissions and of the documentation filed by the parties?
The court fees for setting-aside proceedings before the Supreme Court are calculated in accordance with a tariff schedule stipulated in the Court Fees Act. Basically, the amounts depend on the value of the award.
An action for setting aside must be filed by an attorney by means of electronic legal communication. No separate hard copies are required.
The official language in Austria is German. Accordingly, submissions and documents must be filed in German. If the original documents are issued in another language, certified translations are required.
There are no limitations regarding the length of the submissions or number of documents the applicant may submit.
Form of the setting-aside proceedings
10 What are the different steps of the proceedings?
An application for setting aside an award has to be filed directly with the Supreme Court within three months of service of the award. The application must specifically request the annulment of the arbitral award, setting out on which specific ground or grounds the challenge is based. The action for annulment is subject to a unilateral preliminary examination procedure, which is followed by an oral hearing. The successful action to set aside leads to the elimination of the arbitral award. Importantly, the Austrian Supreme Court is not vested with the authority to conduct a substantive review.
11 Do setting-aside proceedings have suspensive effect? May an arbitral award be recognised or enforced pending the setting-aside proceedings in your jurisdiction?
The setting-aside proceedings do not have suspensive effect. Hence, until a final decision is rendered on the action for setting aside, the arbitral award is effective and enforceable.
Grounds for setting aside an arbitral award
12 What are the grounds on which an arbitral award may be set aside?
An award may be set aside only on the basis of very few grounds that have been exhaustively enumerated in Section 611(2) Nos. 1 to 8 of the ACCP.
The parties may not validly agree to provide for further grounds for setting aside the arbitral award. Notably, the non-arbitrability of the subject matter of the dispute and the violation of substantive public policy must be examined by the Austrian Supreme Court ex officio. They may not be waived by the parties.
All other grounds must be invoked by the party seeking to have the award set aside. Furthermore, parties may only validly waive their right to invoke these grounds after the rendering of the arbitral award, in particular after the party entitled to challenge the award has gained knowledge of the circumstances giving rise to the respective ground.
Decision on the setting-aside application
13 What is the effect of the decision on the setting-aside application in your jurisdiction? What challenges are available?
If a challenge against an award is successful, enforcement proceedings must be abandoned. The effects of the arbitral award would cease ex tunc (i.e., as if it had never been rendered). The arbitration agreement, however, would remain intact. The Austrian Supreme Court may only declare the arbitration agreement ineffective upon request of the party challenging the arbitral award and only if that motion would represent the third successful challenge against arbitral awards in the same subject matter.
Effects of decisions rendered in other jurisdictions
14 Will courts take into consideration decisions rendered in the same matter in other jurisdictions or give effect to them?
This depends on whether the decision rendered in another jurisdiction is recognised in Austria (under international treaties). In any event, decisions rendered in other jurisdictions may be submitted as evidence in proceedings before Austrian courts, being subject to free assessment of evidence.
Applicable procedural law for recognition and enforcement of arbitral awards
Applicable legislation for recognition and enforcement
15 What is the applicable procedural law for recognition and enforcement of an arbitral award in your jurisdiction? Is your jurisdiction party to treaties facilitating recognition and enforcement of arbitral awards?
Domestic awards themselves represent executory titles pursuant to Section 1, No. 16 of the Austrian Enforcement Act (AEA) and hence do not require prior recognition. The enforcement of domestic arbitral awards is thus governed by the general provisions of the AEA and by specific provisions of the ACCP.
Foreign arbitral awards must first undergo a recognition procedure to acquire the status of executory titles in Austria. The recognition of such awards is governed by Section 403 et seq. of the AEA.
These domestic statutory provisions are complementary and subordinate to international law. Thus, the multitude of bilateral and multilateral treaties ratified by Austria and governing the recognition and enforcement of foreign arbitral awards take precedence over conflicting provisions of domestic law.
Most importantly, Austria is a party to the New York Convention. In 1964, the European Convention on International Commercial Arbitration entered into force for Austria, Article IX of which governs the recognition and enforcement of arbitral awards. Similarly, Austria has ratified the ICSID Convention.
Besides the aforementioned multilateral treaties, Austria has concluded bilateral agreements with various states in relation to the enforcement and recognition of arbitral awards.
Where several treaties may apply to one and the same arbitral award, a court may only refuse enforcement if the award fails to meet the conditions of all the applicable treaties.
The New York Convention
16 Is the state a party to the 1958 New York Convention? If yes, what is the date of entry into force of the Convention? Was there any reservation made under Article I(3) of the Convention?
Austria acceded to the New York Convention on 2 May 1961; the Convention entered into force on 31 July of the same year. The reciprocity reservation made by Austria upon its accession was withdrawn on 25 February 1988. Therefore, the Convention fully applies to the recognition and enforcement of arbitral awards in Austria.
17 Is there a time limit for applying for the recognition and enforcement of an arbitral award?
Austrian law does not provide for a specific limitation period for the initiation of enforcement proceedings regarding arbitral awards. However, other general time limits, such as for claims for which a legally binding execution title exists (judgment debts), may need to be taken into account.
18 Which court has jurisdiction over an application for recognition and enforcement of an arbitral award?
District courts have jurisdiction to issue a leave to enforce with respect to a particular foreign arbitral award.
With regard to local jurisdiction, Section 409 of the AEA entitles the award creditor to choose between the district court where the award debtor has its seat or domicile and the district court where the movable or immovable asset of interest is registered.
Once the leave for enforcement is given, the foreign arbitral award is treated as Austrian executory title. The creditor of a foreign award may combine the applications for leave for enforcement and enforcement authorisation to obtain both decisions at once.
Upon appeal, the district court’s decision may be reviewed by the respective regional court. That regional court’s decision may, in turn, be examined by the Austrian Supreme Court.
Jurisdictional and admissibility issues
19 What are the requirements for the court to have jurisdiction over an application for recognition and enforcement and for the application to be admissible? Must the applicant identify assets within the jurisdiction of the court that will be the subject of enforcement for the purpose of recognition proceedings?
The jurisdiction of the district court is established if the debtor has its seat or domicile in the territory of jurisdiction of the court, or the movable or immovable asset of interest is registered in its territory of jurisdiction. If an applicant chooses to establish the territorial jurisdiction of the district court based on the location of the asset against which enforcement is being sought (rather than based on the debtor’s seat or domicile), the applicant must show that the asset is indeed located within the territorial jurisdiction of the court.
An award creditor would typically combine the application for leave for enforcement with a request for enforcement authorisation. The latter would require the creditor to indicate specific assets against which he or she is seeking enforcement.
Form of the recognition proceedings
20 Are the recognition proceedings in your jurisdiction adversarial or ex parte? What are the different steps of the proceedings?
Recognition proceedings are ex parte. The court decision whether to grant or deny a leave for enforcement is based on documents only. This procedure was designed to grant the award creditor the advantage of unexpected enforcement access.
However, this does not mean that the award debtor is denied the right to be heard. Rather, he or she may appeal against the court order granting leave for enforcement and, in doing so, may also introduce new facts. The appeal will be heard by the competent regional court in inter partes proceedings.
Form of application and required documentation
21 What documentation is required to obtain recognition?
Pursuant to Article IV(1)(a) of the New York Convention, an applicant seeking the recognition of an arbitral award shall furnish the original award or a certified copy thereof and the original arbitration agreement or a certified copy thereof.
Notably, Section 614(2) of the ACCP, which governs the same subject matter, leaves the decision of whether to require the applicant to produce the relevant arbitration agreement (or a certified copy thereof) to the discretion of the court having jurisdiction.
In line with Article VII(2) of the New York Convention, the more liberal approach as enshrined in this domestic provision supersedes the stricter approach taken by the international treaty.
Translation of required documentation
22 If the required documentation is drafted in a language other than the official language of your jurisdiction, is it necessary to submit a translation with an application to obtain recognition? If yes, in what form must the translation be?
In general, if an arbitral award is not in German, the applicant must furnish a certified translation of the whole award by a sworn or officially appointed translator. Special regulations regarding the official language may apply in relation to individual regions, where documents can be submitted in languages other than German.
Further, it is within the discretion of the competent court to request the applicant to furnish a fully translated copy of the arbitration agreement. However, the applicant is not required to submit a translation of the entire underlying contract in which the relevant arbitration clause is contained.
Other practical requirements
23 What are the other practical requirements relating to recognition and enforcement? Are there any limitations on the language and length of the submissions and of the documentation filed by the parties?
Since the district court only examines whether the formal requirements of the New York Convention are satisfied without hearing the award debtor, the Austrian Supreme Court has adopted a formalistic approach to the proceedings and will meticulously examine whether the name of the debtor as indicated in the request for enforcement authorisation is in conformity with the name indicated in the arbitral award.
The court fees for recognition and enforcement proceedings are calculated in accordance with a tariff schedule (the Court Fees Act). The amounts depend on the value of the award, with the fees for enforcement against immovable assets being slightly higher than those required for other assets. The amounts of the fees also increase with the number of debtors against whom the award is to be enforced. Ultimately, should the request for enforcement authorisation be successful, the award debtor will be obliged to reimburse the creditor for these procedural costs.
Further, a German translation of the award must be submitted by the party seeking recognition and enforcement of the award if the award is not in German. The translation shall be certified by an official or sworn translator or by a diplomatic or consular representative. Importantly, the translation must cover the entire award, including the certification note.
No limitations with regard to the length of the submissions exist under Austrian law.
Recognition of interim or partial awards
24 Do courts recognise and enforce partial or interim awards?
According to the Supreme Court, the New York Convention applies to decisions on the merits, which finally adjudicate on at least part of the relief sought by the parties and which correspond to state court judgments. Furthermore, Austrian arbitration law expressly states that decisions regarding the jurisdiction of the arbitral tribunal and decisions on costs must be rendered in the form of arbitral awards.
Hence, an arbitral award that provides for a final resolution of at least part of a dispute on the merits meets this definition and may be recognised and enforced in Austria.
Interim and conservatory measures are enforceable in Austria. This is expressly provided under Austrian arbitration law and applies regardless of whether such measures may be characterised as awards in the sense of the New York Convention.
Grounds for refusing recognition of an arbitral award
25 What are the grounds on which an arbitral award may be refused recognition? Are the grounds applied by the courts different from those provided under Article V of the New York Convention?
The New York Convention, and in particular the grounds for refusing the enforcement and recognition of a foreign arbitral award provided under Article V thereof, is directly applicable in Austria. Austrian statutory law, therefore, does not provide for a domestic catalogue of grounds for refusing recognition.
Notably, the interpretation of Article V of the New York Convention is influenced by the jurisprudence of the Austrian Supreme Court developed under Section 611 of the ACCP, which stipulates the grounds for setting aside an arbitral as they parallel the grounds listed in Article V.
Effect of a decision recognising an arbitral award
26 What is the effect of a decision recognising an arbitral award in your jurisdiction?
Once leave for enforcement is granted, a foreign award shall be treated in the same way as a domestic arbitral award. This, in itself, is not sufficient to render the award enforceable. Rather, the award creditor has to request the court to issue an enforcement authorisation. The AEA allows applicants to combine this request with a request for leave for enforcement to obtain the decisions on both subject matters at once.
Decisions refusing to recognise an arbitral award
27 What challenges are available against a decision refusing recognition in your jurisdiction?
Since the recognition proceedings are ex parte, the award debtor would only learn about the outcome once the district court’s decision is served. The debtor may appeal against this decision before the competent regional court within four weeks. This period doubles for cases in which the award debtor’s seat or domicile is abroad, provided that this appeal is the very first opportunity to participate in the recognition proceedings. The appeal must be based on the grounds for rejecting the recognition and enforcement of an arbitral award as listed in Article V of the New York Convention. This provision also allows the debtor to invoke grounds for refusal that have not been discussed before the district court.
Recognition or enforcement proceedings pending annulment proceedings
28 What are the effects of annulment proceedings at the seat of the arbitration on recognition or enforcement proceedings in your jurisdiction?
Under Article VI of the New York Convention, the enforcement court may stay enforcement proceedings if an award is challenged before a court in the country in which it was made. If this is the case, the court may also order the debtor to provide adequate security. According to the Austrian Supreme Court, both decisions, whether to stay the proceedings and whether to order the debtor to provide security, are within the discretion of the competent court.
Whether the adjournment will be granted depends on the chances of success of the challenge against the arbitral award in its state of origin. Although the Austrian Supreme Court has ruled that it is within the competent court’s discretion to treat the application to set aside the award ‘generously’, it has also stressed that the onus is on the debtor to show why the award is likely to be set aside and that merely proving that a challenge has been raised against it is not sufficient to adjourn the recognition proceedings in Austria.
In addition to Article VI of the Convention, the AEA allows the debtor to request adjournment of the enforcement authorisation proceedings if the foreign executory title has not yet become final and binding in accordance with the rules in its jurisdiction of origin. The Austrian Supreme Court regards this provision as a necessary supplement to Article VI of the New York Convention, which it interprets as applying only to proceedings to obtain leave for enforcement and not allowing for adjournment of the enforcement authorisation proceedings.
29 If the courts adjourn the recognition or enforcement proceedings pending annulment proceedings, will the defendant to the recognition or enforcement proceedings be ordered to post security?
It is within the court’s discretionary powers to order the award debtor to provide security, should the creditor request it. As a general rule, the court will require the debtor to provide security.
Recognition or enforcement of an award set aside at the seat
30 Is it possible to obtain the recognition and enforcement of an award that has been fully or partly set aside at the seat of the arbitration? If an arbitral award is set aside after the decision recognising the award has been issued, what challenges are available?
Under Article V(1)(e) of the New York Convention, the recognition and enforcement of an arbitral award ‘may be refused’ if it has been set aside in the jurisdiction of its origin.
Article IX of the European Convention on International Commercial Arbitration is important as it limits the scope of application of Article V(1)(e) of the New York Convention by providing that this ground for refusing recognition of a foreign award may not be invoked if the award has been set aside because of that foreign jurisdiction’s public policy.
Service in your jurisdiction
31 What is the procedure for service of extrajudicial and judicial documents to a defendant in your jurisdiction? If the extrajudicial and judicial documents are drafted in a language other than the official language of your jurisdiction, is it necessary to serve these documents with a translation?
The service of documents within the territory of Austria is governed by the ACCP, by the Austrian Service Act and by the Court Organisation Law.
Documents may be served to their addressees ‘in person’. In accordance with Section 16 of the Austrian Service Act, should the addressee be away at the time of the service, the document may be served to any person of age who lives in the addressee’s household or who is the addressee’s employee or employer. Should these methods fail, the documents may be deposited with the local postal office and the addressee must be notified.
Both natural persons and legal entities may appoint a person to serve as their authorised representative for the purpose of service of documents, provided that this person has a point of delivery within the territory of Austria. If a party to court proceedings does not have a point of delivery in Austria, the court may order that party to appoint an authorised representative for service of documents. It is also within the court’s discretion to order a group of two or more parties to appoint a common authorised representative.
Occasionally, Austrian law prescribes that a ‘registered personal service’ is required, thereby allowing for service on that particular person only.
Service out of your jurisdiction
32 What is the procedure for service of extrajudicial and judicial documents to a defendant outside your jurisdiction? Is it necessary to serve these documents with a translation in the language of this jurisdiction?
If documents have to be served to a point of delivery situated in another Member State of the European Union, then Regulation (EC) No. 1393/2007 applies. Beyond the European context, the Hague Service Convention of 1965 allows for service of documents without recourse to consular and diplomatic channels. However, the latter are required for service of documents to foreigners enjoying immunities under public international law.
Identification of assets
33 Are there any databases or publicly available registers allowing the identification of an award debtor’s assets within your jurisdiction?
Austria’s land register is publicly available. Accordingly, extracts from the register containing information about the ownership of a particular immovable property may be obtained from the competent court. Further, software typically used by attorneys and notaries allows for a search by property online. However, the database is only searchable by property number. It is therefore difficult to obtain comprehensive information about the registered immovable property owned by a particular debtor unless the creditor is aware of the location of that property in advance. Once the creditor has obtained an executory title, he or she may request comprehensive information about the real estate owned by the debtor.
Austria’s commercial register lists all limited liability companies and stock companies as well as partnerships and individual businesspeople whose annual revenue exceeds a certain amount. The register lists each business entity’s shareholders and its management. The database is searchable by name of company.
The website of the Austrian Patent Office maintains a register allowing for a quick and easy online search by name of national and European patents, trademarks and designs, and protections.
In addition, creditors may also turn to private service providers, such as Credit Protection Association 1979, that offer information about a person’s or a company’s creditworthiness as well as indicating bank accounts, shares in other companies and annual accounts.
Information available through judicial proceedings
34 Are there any proceedings allowing for the disclosure of information about an award debtor within your jurisdiction?
Creditors who have already obtained an executory title against their debtors may search the land register by the name of that debtor.
Further, under specific circumstances stipulated in Section 47(1), No. 1 and No. 2 of the AEA and in Section 364a of the AEA, the debtor may be ordered to prepare a full list of his or her assets. Notably, the Austrian Penal Code foresees a sanction of up to six months of forced confinement if the debtor provides false or incomplete information, thus jeopardising the satisfaction of the claim.
Notably, the AEA grants lawyers and notaries access to an enforcement database containing information about the enforcement court, the file number and the amount of the claim that is the subject of the enforcement proceedings. It further shows previous attempts to seize the debtor’s movable assets.
To gain access to this information, attorneys and notaries do not need to exhibit an executory title, but merely attest the existence of a receivable their client may have against the debtor as well as reasonable doubt as to the debtor’s solvency. This allows potential claimants also to benefit from the new database and evaluate enforcement chances before commencing proceedings.
35 What kinds of assets can be attached within your jurisdiction?
Austrian law provides for enforcement measures against immovable, movable and intangible property.
Availability of interim measures
36 Are interim measures against assets available in your jurisdiction?
The ACCP authorises arbitral tribunals to order pre-award interim or protective measures at the request of a party, should they find that the enforcement of the claim would otherwise be frustrated or significantly impeded. Importantly, if the arbitral tribunal has been requested to issue interim measures, the opponent of the party at risk must be heard.
Regardless of the arbitration clause, state courts are also authorised to grant interim measures. This gives parties a chance to obtain interim measures before the arbitral tribunal is constituted.
Procedure for interim measures
37 What is the procedure to apply interim measures against assets in your jurisdiction?
Interim measures issued by an arbitral tribunal do not need to be recognised before their enforcement. A request for enforcement of an interim measure may be filed with the district court where the opponent of the party at risk has its habitual residence, domicile or seat. Otherwise, the request must be brought before the district court where the enforcement measure is to be carried out.
Although arbitral tribunals are free to order interim measures of types that are unknown under Austrian law, Section 593(3) of the ACCP authorises enforcement courts to transform them into interim measures of a type that is in conformity with Austrian law and that comes closest to the interim measure originally ordered by the arbitral tribunal. Importantly, in such cases, the party at risk must specify the Austrian interim measure it considers appropriate. Otherwise, its request for enforcement must be refused by the court (ACCP, Section 593(4), No. 4).
Before granting enforcement, the arbitral tribunal must hear the opponent of the party at risk, thereby giving him or her a chance to raise objections based on the grounds listed in Section 593(4) of the ACCP. This provision lists four grounds for refusing enforcement of interim measures. In addition to Section 593(4), No. 4, an interim measure must be refused (1) if it suffers from a defect that would amount to a ground to set aside an arbitral award, (2) if it is a foreign interim measure and suffers from a defect that would constitute a ground for refusing to recognise an arbitral award, or (3) owing to incompatibility of the interim measure with prior court measures. The court must examine these grounds ex officio.
The ACCP also provides for a list of grounds for suspending the enforcement of interim measures. Based on this provision, the interim measure must be suspended if the opponent of the party at risk has provided security in connection with the measure.
The decision of the district court may be appealed by both parties.
The endangered party may also bring its request for interim measures before a state court. The court at the seat of the opponent of the interim measure is competent to grant these measures when the request has been raised before or during the arbitration or before enforcement proceedings. Otherwise, if the request has been filed with the court during a current enforcement proceeding, it will be heard by the court in charge of the enforcement proceedings.
Notably, the proceedings before the court are ex parte. Therefore, the opponent of the endangered party will be heard only on appeal. Endangered parties may request the court to issue interim measures against third parties. This is an important advantage in comparison to interim measures issued by an arbitral tribunal that may only bind the parties to the arbitration. It is also important to note that the endangered party does not have to prove but merely to attest the fulfilment of the conditions for granting interim measures (i.e., the existence of a claim and that its enforcement would be frustrated or significantly impeded if the court refuses to order the requested interim measure).
Interim measures against immovable property
38 What is the procedure for interim measures against immovable property within your jurisdiction?
Neither the ACCP nor the AEA provisions distinguish between the types of assets targeted by the provisional measures. However, it does make a difference whether the impaired claim is a monetary claim or not.
If it is a monetary claim, the available enforcement measures are:
- deposit and administration of tangible movable asset and money;
- prohibition of any disposal or pledge in relation to a specific tangible movable asset;
- prohibition aimed at the opponent of the party at risk to collect specific receivables and a prohibition aimed at that party’s debtors (third-party debtors) to perform their corresponding obligations;
- administration of immovable property; and
- prohibition of any disposal of or pledge in relation to a specific immovable property.
With respect to non-monetary claims, the endangered party may additionally request the following interim measures:
- deposition of assets with the court;
- right to retention;
- order aimed at the opponent of the party at risk to take specific conservation measures; and
- under specific conditions, arrest.
Interim measures against movable property
39 What is the procedure for interim measures against movable property within your jurisdiction?
Since there are no specific provisions governing the enforcement of such measures in particular, they must be enforced in accordance with the procedures for recognition and refusal of recognition of arbitral awards.
Interim measures against intangible property
40 What is the procedure for interim measures against intangible property within your jurisdiction?
Since there are no specific provisions governing the enforcement of such measures in particular, they must be enforced in accordance with the procedures for recognition and refusal of recognition of arbitral awards.
41 What is the procedure to attach assets in your jurisdiction?
Court enforcement proceedings are typically based on documents and no oral hearing is required. When a hearing is nevertheless scheduled, it would only be open to the parties to the proceedings. A streamlined procedure applies to claims not exceeding €50,000 and satisfying the other conditions of Section 54b(1) of the AEA.
Court orders are subject to appeal, except where expressly excluded by law. Although appeals must generally be brought within 14 days, with respect to court orders authorising the enforcement of foreign executory titles, such as arbitral awards, the applicable period is four weeks. Importantly, an appeal against the granting of enforcement of a foreign enforcement order allows the applicant to invoke new facts.
The court does not examine the merits of the claim in the course of enforcement authorisation proceedings. Accordingly, it might authorise the enforcement even when the underlying claim has lapsed or has been satisfied owing to a circumstance that occurred after rendering of the executory title (i.e., the arbitral award). The debtor, therefore, may raise claims against the creditor with the aim of closing or limiting the enforcement proceedings. A dispute over these types of claims will be heard by the court in accordance with the provisions of the ACCP. Similarly, the enforcement would be inadmissible, if the claim was not yet mature or not yet enforceable, if the creditor has waived its right to enforce the claim or under other similar circumstances expressly provided by the law. Finally, third parties whose rights have been violated in the course of the enforcement proceedings are also entitled to raise a claim against the creditor.
Attachment against immovable property
42 What is the procedure for enforcement measures against immovable property within your jurisdiction?
There exist three types of enforcement measures against immovable assets that an award creditor may combine or apply for separately:
- compulsory mortgage,;
- compulsory administration with the aim of generating revenue to satisfy the claim; and
- compulsory sale of the immovable asset.
Naturally, the compulsory sale of the immovable property is the most intrusive measure the creditor may choose to request. Once all parties are notified, an independent expert will be appointed to evaluate the property. Its estimated value would then form the basis of the auction procedure. The property may not be sold at a price that is lower than 50 per cent of the estimated value.
Attachment against movable property
43 What is the procedure for enforcement measures against movable property within your jurisdiction?
The provisions regulating the enforcement measures against movable property distinguish between attachment against tangible and movable objects, attachment against receivables, attachment against claims in respect of tangible property, and other property rights (such as trademarks, patents, copyrights, licences and shares).
As soon as the enforcement court allows creditors to seize movable tangible assets, the bailiff takes action. The aim of the bailiff is to generate enough revenue within four months to satisfy the creditors’ claims. The AEA provides a very general normative framework for enforcement measures, which allows bailiffs a high degree of independence.
Notably, the AEA provides a list of certain types of tangible movable assets that may not be seized by bailiffs. Seized assets must be deposited with the court, with specific institutions or with third-party depositories appointed by the creditor.
Attachment against intangible property
44 What is the procedure for enforcement measures against intangible property within your jurisdiction?
The creditor may request the enforcement court to attach receivables owed to the award debtor by third-party debtors. The court would then issue an order prohibiting the third-party debtors from performing their obligations in respect of the debtor, and prohibiting the award debtor from accepting performance of those obligations. Importantly, specific receivables (such as nursing allowance, rent aid, family allowance and scholarships) may not be attached. Other receivables may become subject to attachment proceedings but only to a limited extent or under further specific circumstances. The main purpose of these restrictions is to ensure that the debtor’s income does not fall below the minimum level of subsistence.
Further property rights (such as intellectual property rights, shares, licences and fishing rights) may be attached provided that they are transferable from one person to another and provided that they may be subject to commercial exploitation. The creditor is required to indicate these rights in the request for attachment but does not need to specify a particular kind of commercial exploitation. Rather, upon issuing a prohibition to dispose of the property rights in question and upon hearing all creditors, the court will decide how best to satisfy their claims.
Attachments against bank accounts
45 Is it possible in your jurisdiction to attach bank accounts opened in a branch or subsidiary of a foreign bank located in your jurisdiction or abroad? Is it possible in your jurisdiction to attach the bank accounts opened in a branch or subsidiary of a domestic bank located abroad?
On the basis of the European Account Attachment Regulation and in conjunction with the related provisions of the AEA, a creditor may obtain a preservation order, independent from whether the account is opened in a bank (foreign or domestic) in Austria or abroad. The aim of this preservation order is to prevent a later execution from being jeopardised by moving the funds from the account in question. The order is to be recognised and enforced in other EU Member States without a separate declaration of enforceability. In addition, an Austrian creditor may obtain an attachment of accounts under the AEA.
If an Austrian bank account owned by the embassy of a foreign state is not used solely for private transactions but also for payment enabling the embassy to exercise its state powers, that bank account would fall under that state’s immunity and therefore would be immune from enforcement measures in Austria.
Enforcement against foreign states
46 Are there any rules in your jurisdiction that specifically govern recognition and enforcement of arbitral awards against foreign states?
Austrian domestic law does not provide for a particular set of provisions governing enforcement proceedings against states. However, domestic statutory rules, such as Article IX of the Introductory Law to the Law on Jurisdiction as well as international treaties and customary international law, do address individual aspects of enforcement against states in the context of sovereign immunity.
Availability of interim measures
47 May award creditors apply interim measures against assets owned by a sovereign state?
Whether or not interim measures may be applied to assets owned by a foreign state depends on whether these assets are used to enable the state to exercise its state powers or not.
Service of documents to a foreign state
48 What is the procedure for service of extrajudicial and judicial documents to a foreign state? Is it necessary to serve extrajudicial and judicial documents with a translation in the language of the foreign state?
In line with the theory of limited sovereignty, Austrian law distinguishes between acts of state that are governed by private law (acta iure gestionis) and acts through which states exercise state power (acta iure imperii). In the latter case, statutory law stipulates that the relevant documents must be served to the foreign state through the Federal Ministry for European and International Affairs. Domestic law only applies provided that the subject matter is not regulated by a treaty between the two states.
In general, the embassy of the state in question in Austria is not the correct service office. However, it can accept the document and forward it to the state recipient. If accepted without objection by the state, the document is then deemed to have been validly served.
In principle, court documents must be translated into the national language of the state concerned. However, the specific conditions for service abroad are mostly determined by international agreements and, eventually, by the laws or other legal provisions of the country in which service is to be effected.
Immunity from enforcement
49 Are assets belonging to a foreign state immune from enforcement in your jurisdiction? Are there exceptions to immunity?
In line with the theory of limited immunity, foreign states are exempt from the jurisdiction of Austria’s courts only to the extent that they act in their capacity as states (i.e., where they exercise state power). Thus, foreign states do not enjoy immunity with respect to transactions based on private law and disputes arising from those transactions may be heard by Austrian courts.
Assets owned by foreign states and situated in Austria may be exempt from enforcement proceedings depending on the purpose of their use. If the assets are meant to be used solely for private transactions, they may be seized and become subject to enforcement proceedings in Austria. If, however, their purpose is to enable the foreign state to exercise its state powers (e.g., to enable the embassy to perform its tasks), no enforcement measures may be ordered against the assets. This concerns the premises of foreign embassies and the apartments where that state’s diplomats reside.
State immunity also extends to assets of mixed use. If an Austrian bank account owned by the embassy of a foreign state is not used solely for private transactions but also for payment enabling the embassy to exercise its state powers, that bank account would fall under that state’s immunity and therefore would be immune from enforcement measures in Austria. The purpose of this broad approach to state immunity is to avoid jeopardising the continued capacity of foreign states to maintain their embassies in Austria. The onus is on the creditor of the executory title to show that the purpose of the respective asset allows for an exemption from state immunity.
Waiver of immunity from enforcement
50 Is it possible for a foreign state to waive immunity from enforcement in your jurisdiction? What are the requirements of waiver?
Waiver of state immunity is governed by Article IX of the Introductory Law to the Law on Jurisdiction. In accordance with this provision, states may waive their right to sovereign immunity at any stage of the proceedings by means of an agreement or through a unilateral declaration. To be effective, this declaration must be made expressly. However, a state may implicitly confirm that such a waiver has been made. In addition, there are no specific form requirements applicable to waivers of sovereign immunity. The declaration may also be made verbally, therefore.
Importantly, a waiver regarding immunity from jurisdiction does not extend to immunity from enforcement. Hence, an additional waiver regarding enforcement is necessary and must be made under the aforementioned rules.
Piercing the corporate veil and alter ego
51 Is it possible for a creditor of an award rendered against a foreign state to attach the assets held by an alter ego of the foreign state within your jurisdiction?
In principle, assets can be attached even if they are owned by an alter ego of a foreign state as long as they are used for commercial purposes. However, no statutory law or case law exists with regard to the attachment of objects that are indirectly held by a state.
 Christian W Konrad is the managing partner and Philipp A Peters is a partner at Konrad Partners.