A. The Contracting State and the New York Convention

1. Name of Contracting State (also specify jurisdiction(s), if relevant)

Austria.

2. Date of entry into force of the New York Convention

31 July 1961. (Austria acceded to the New York Convention on 2 May 1961.)

(Source: BGBl. No. 200/1961, published 7 Aug. 1961. Note: ‘BGBl.’ and ‘RGBl.’ refer to Austrian Federal Law Gazettes.)

3. Has any reservation been made under Art. I(3) of the New York Convention regarding:

(a) reciprocity?

No. When acceding to the New York Convention, Austria initially made a reciprocity reservation under Art. I(3) stating that it would only apply the New York Convention to the recognition and enforcement of awards made in the territory of another Contracting State, but subsequently withdrew its reciprocity reservation.

(Source: BGBl. No. 200/1961, published 7 Aug. 1961; BGBl. No. 161/1988, published 25 Mar. 1988.)

(b) commercial relationships?

No.

4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?

No.

B. National sources of law

5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?

(i) Austrian Code of Civil Procedure (Zivilprozessordnung), Arts. 577(2), 614, and 514 to 528a.

(Source: RGBl. No. 113/1895 as last amended by BGBl. I No. 7/2006.)

(ii) Austrian Enforcement Law (Exekutionsordnung), Arts. 403 to 416.

(Source: RGBl. No. 79/1896 as last amended by BGBl. I No. 100/2016.)

(iii) Multilateral and bilateral conventions. The multilateral and bilateral conventions on recognition and enforcement of foreign awards listed below apply directly in Austria. Austria has incorporated these conventions in statutory provisions by way of a generic reference to international law, rather than transposing them into national law.

(Sources: Zivilprozessordnung, Art. 614(1); Exekutionsordnung, Art. 416(1).)

Multilateral conventions

- New York Convention 1958. The New York Convention is by far the most important legal instrument for recognition and enforcement of foreign arbitral awards in Austria. However, other multilateral and bilateral conventions may apply and be relied upon.

(Source: BGBl. No. 200/1961, published 7 Aug. 1961.)

- Geneva Convention of 26 Sept. 1927 on the Execution of Foreign Arbitral Awards (applicable only insofar as not superseded by Art. VII(2) of the NYC).

(Source: BGBl. No. 343/1930, published 12 Dec. 1930.)

- European Convention on International Commercial Arbitration of 21 Apr. 1961 (Art. IX).

(Source: BGBl. No. 107/1964, published 2 June 1964.)

- Convention on the Settlement of Investment Disputes between States and Nationals of Other States of 18 Mar. 1965 (Arts. 53 to 54).

(Source: BGBl. No. 357/1971, published 10 Sept. 1971.)

Bilateral conventions

- Germany. Convention between Austria and Germany providing for reciprocal recognition and enforcement of judgments, settlements and public documents in civil and commercial matters, dated 6 June 1959.

(Source: BGBl. No. 105/1960, published 28 May 1960.)

- Belgium. Convention between Austria and Belgium providing for reciprocal recognition and enforcement of judgments, arbitral awards and public documents in civil and commercial matters, dated 16 June 1959.

(Source: BGBl. No. 287/1961, published 14 Dec. 1961.)

- Switzerland. Convention between Austria and Switzerland providing for reciprocal recognition and enforcement of judgments, dated 16 Dec. 1960.

(Source: BGBl. No. 125/1962, published 4 May 1962.)

- Liechtenstein. Convention between Austria and Liechtenstein providing for reciprocal recognition and enforcement of judgments, arbitral awards, settlements and public documents, dated 5 July 1973.

(Source: BGBl. No. 114/1975, published 27 Feb. 1975.)

- Croatia. Convention between Austria and Yugoslavia providing for reciprocal recognition and enforcement of arbitral awards in commercial matters, dated 18 Mar. 1960.

(Sources: BGBl. No. 115/1961, published 5 May 1961; BGBl. No. 474/1996, published 6 Sept. 1996.)

- Macedonia. Convention between Austria and Yugoslavia providing for reciprocal recognition and enforcement of arbitral awards in commercial matters, dated 18 Mar. 1960.

(Sources: BGBl. No. 115/1961, published 5 May 1961; BGBl. III No. 92/1997, published 3 June 1997.)

- Slovenia. Convention between Austria and Yugoslavia providing for reciprocal recognition and enforcement of arbitral awards in commercial matters, dated 18 Mar. 1960.

(Sources: BGBl. No. 115/1961, published 5 May 1961; BGBl. No. 714/1993, published 19 Oct. 1993.)

- Serbia and Montenegro. Convention between Austria and Yugoslavia providing for reciprocal recognition and enforcement of arbitral awards in commercial matters, dated 18 Mar. 1960.

(Sources: BGBl. No. 115/1961, published 5 May 1961; BGBl. III No. 156/1997, published 19 Sept. 1997.)

Where two or more conventions apply to the recognition and enforcement of a foreign arbitral award in Austria, they coexist and apply in parallel, unless one deviates from the other(s) (e.g. New York Convention, Art VII(2)). The party seeking recognition and enforcement of a foreign arbitral award may rely on all applicable conventions, while the respondent has to show a ground for refusal under each applicable convention in order to succeed in avoiding recognition and enforcement of the foreign award.

(Sources: Austrian Supreme Court decisions OGH 26 Jan. 2005, 3 Ob 221/04b; OGH 20 Oct. 2004, 3 Ob 73/04p; OGH 20 Oct. 1993, 3 Ob 117/93.)

(iv) Judge-made rules.

C. Limitation periods (time limits)

6.

(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?

There is no specific limitation period applicable to the commencement of legal proceedings for recognition and enforcement of foreign arbitral awards under Austrian law. However, the prudent view is to apply the 30-year statutory limitation period applicable to proceedings for enforcement of judgments under Austrian law by analogy.

(Source: Regulation of the Austrian Federal Ministry of Justice dated 21 July 1858 in respect of limitation periods (Verordnung des Justizministeriums vom 21. Juli 1858 zur Verjährungsfrist), RGBl. No. 105/1858, published 24 July 1858.)

(b) If yes, what is the applicable limitation period (time limit) and when does it start running?

The prudent view is to consider the limitation period as extending to 30 years from the date of the award. (There is no specific Austrian legal provision or case law on this issue in relation to foreign awards.)

D. National courts and court proceedings

7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?

The competent court is the district court (Bezirksgericht) (i) of either the place where the respondent has its domicile or seat; or (ii) where assets, immovable or movable (including third party claims) against which enforcement is sought are located.

(Source: Exekutionsordnung, Art. 409.)

8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?

There are no further jurisdictional requirements other than those set out in Q.7 above (i.e. (i) the respondent has its domicile or seat in the jurisdiction; or (ii) immovable or movable assets (including third party claims) against which enforcement is sought are located in its jurisdiction).

(Source: Exekutionsordnung , Art. 409.)

9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?

The first decision granting or denying recognition and enforcement of a foreign arbitral award (technically a decision about an application for leave of enforcement) is obtained through ex parte proceedings.

The court determines an application for leave of enforcement of a foreign arbitral award on paper, i.e. on the basis of the documents submitted by the applicant without hearing the respondent. No hearing is held. The decision is made in the form of a court order (Beschluβ).

(Source: Exekutionsordnung , Art. 410.)

10.

(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?

Yes.

(b) How many levels of appeal or recourse are available against this decision?

Two.

(i) An appeal (Rekurs) against the decision of the district court to the competent regional court (Landesgericht), as the court of second instance, through inter partes proceedings.

(Source: Exekutionsordnung , Arts. 78 and 411(1); Zivilprozessordnung, Arts. 514 to 528a, esp. 521a.)

(ii) The appeal decision may be appealed on points of law (Revisionsrekurs) to the Austrian Supreme Court (Oberster Gerichtshof), whose review of the second instance decision is limited to points of law of material importance for the unity, consistency and development of Austrian law. The proceedings before the Austrian Supreme Court are inter partes.

(Source: Exekutionsordnung, Arts. 78 and 411(4); Zivilprozessordnung, Arts. 527, 528 and 528a.)

11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?

Execution against assets may be obtained as soon as the first ex parte decision of the court allowing (full or partial) recognition and enforcement of the foreign arbitral award has entered into force, that is after lapse of the time limit for filing an appeal against this decision.

Generally, the time limit for filing an appeal against a court’s decision allowing (full or partial) recognition and enforcement of a foreign arbitral award is four weeks starting from the date when the respondent receives notification of such decision. If the respondent’s domicile or seat is located outside of Austria and the appeal is the respondent’s first opportunity to take part in these proceedings, this time limit is eight weeks.

(Source: Exekutionsordnung, Art. 411(1) and 411(2).)

While execution against assets may only be obtained once the court’s decision has entered into force (i.e. is final and not subject to appeal), Austrian law allows for an attachment of assets before the court’s decision enters into force.

(Source: Exekutionsordnung, Art. 412(2).)

E. Evidence required

12.

(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)?

The following evidence must be supplied to the court:

(i) the arbitral award;

(Source: New York Convention, Art. IV(1)(a).)

(ii) the arbitration agreement, if so requested by the court. In Austria, the court has discretion to ask for the original or a certified copy of the arbitration agreement to be submitted. Generally, the court will do so only if there are doubts as to the existence of an arbitration agreement.

(Source: Zivilprozessordnung, Art. 614(2).)

Art. 614(2) of the Zivilprozessordnung deviates from Art. IV(1)(b) of the New York Convention, which provides that the applicant must supply the original or a certified copy of the arbitration agreement when applying for recognition and enforcement of a foreign arbitral award.

The court’s discretion under Art. 614(2) was introduced because of different interpretations of the ‘writing requirement’ for arbitration agreements in various jurisdictions and the possibility of curing defective arbitration agreements in some jurisdictions. (Under Art. 583(3) of the Zivilprozessordnung, if a party enters the merits of its case in arbitration proceedings in Austria without objecting to the validity of the arbitration agreement, any formal defects in the arbitration agreement will be cured.)

(Source: New York Convention, Art. IV(1)(b).)

In appeal proceedings, however, the applicant will have to prove the existence of the arbitration agreement.

(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?

It is necessary to supply the arbitral award in its entirety and, if so requested by the court, the relevant pages of the document containing the arbitration agreement which prove the existence of the parties’ agreement to arbitrate.

(c) Are originals or duly certified copies required?

The following are required: (i) an original or a certified copy of the award; (ii) if requested by the court, an original or a certified copy of the arbitration agreement.

(Sources: New York Convention, Art. IV; Zivilprozessordnung, Art. 614(2).)

(d) How many originals or duly certified copies are required?

The following are required: (i) one original or one certified copy of the award; (ii) if requested by the court, one original or one certified copy of the arbitration agreement.

(e) Does the authority or court keep the originals that are filed?

The court will return the originals once the enforcement proceedings are terminated and are not subject to further appeals. Originals and other copies submitted as evidence (e.g. award, arbitration agreement) will be returned to the parties; other documents (e.g. parties’ submissions, court’s decision) will be kept on file and stored for a period of 15 years.

(Sources: Zivilprozessordnung, Art. 219(3); Rules of Procedure of the Courts of 1st and 2d Instance (Geschäftsordnung für die Gerichte 1. und 2. Instanz), Arts. 169, 171(1) and 174(1)(2), BGBl. No. 264/1951 as last amended by BGBl. II No. 469/2013.)

13.

(a) Is it necessary to provide a translation of the documents supplied?

Yes.

(Source: New York Convention, Art. IV(2).)

(b) If yes, into what language?

German.

(Source: Austrian Federal Constitution (Bundesverfassungsgesetz), Art. 8, BGBl. No. 1/1930 as last amended by BGBl. I No. 81/2005; Geschäftsordnung für die Gerichte 1. und 2. Instanz, Art. 53(1).)

While German is the official language used in courts in Austria, the Slovenian and Croatian languages may be used in certain Austrian courts in addition to German, for the sake of protecting minority groups.

Slovenian may be used in the district courts in Bleiburg, Ferlach and Eisenkappel and appeal courts.

(Source: Regulation of the Austrian Federal Government dated 31 May 1977 (Verordnung der Bundesregierung vom 31. Mai 1977 über die Bestimmung der Gerichte, Verwaltungsbehörden und sonstigen Dienststellen, vor denen die slowenische Sprache zusätzlich zur deutschen Sprache als Amtssprache zugelassen wird), Arts. 3 and 4, BGBl. No. 307/1977, published 14 June 1977.)

Croatian may be used in the district courts in Eisenstadt, Güssing, Mattersburg, Neusiedl am See, Oberpullendorf and Oberwart and appeal courts.

(Source: Regulation of the Austrian Federal Government dated 24 Apr. 1990 (Verordnung der Bundesregierung vom 24. April 1977 über die Bestimmung der Gerichte, Verwaltungsbehörden und sonstigen Dienststellen, vor denen die kroatische Sprache zusätzlich zur deutschen Sprache als Amtssprache zugelassen wird), Arts. 3 and 4, BGBl. No. 231/1990, published 8 May 1990.)

(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?

Yes. The translation must be certified by an official or sworn translator or by a diplomatic consular or agent.

(Source: New York Convention, Art. IV(2).)

(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?

It is necessary to provide a full translation of the entire award (not only of its dispositive provisions).

(Source: Austrian Supreme Court decision OGH 26 Apr. 2006, 3 Ob 211/05h.)

If the court so requests, it is necessary to provide a full translation of the arbitration agreement. There is no need to provide a translation of the entire contract containing the arbitration clause.

(Source: Zivilprozessordnung, Art. 614(2).)

F. Stay of enforcement

14.

(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?

Yes.

(Source: New York Convention, Art. VI.)

(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?

There are no other grounds under Austrian law on the basis of which a court could stay legal proceedings for recognition and enforcement.

(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?

No. However, upon application, the court may exercise its discretion to order the provision of security.

(Source: New York Convention, Art. VI.)

G. Confidentiality

15.

(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?

No. Enforcement proceedings are not public in Austria. Documents filed in legal proceedings for recognition and enforcement do not form part of a ‘public record’ in that they are not open to public access. Generally, only the parties and other participants in the enforcement proceedings are entitled to access the files or record held by the court.

A third party may access the documents only if: (i) all participants in the enforcement proceedings consent and provided there are no prevailing private or public interests to be protected under Austrian data protection law; or (ii) it provides credible prima facie evidence of a legal interest in accessing the documents. Courts have held that such legal interest must be concrete and based on Austrian law. A mere economic interest or interests of information, integrity or ethics are not sufficient. The enforcement or defence of a legal claim may constitute such legal interest, where, for example, access to the documents improves the third party’s evidence in support of a claim it pursues in legal proceedings.

A party can apply for a third party to be refused access to the documents. If the court nonetheless allows access, it has to issue a court order which the applicant may subsequently appeal.

(Sources: Exekutionsordnung, Art. 73; Zivilprozessordnung, Art. 219(2); Geschäftsordnung für die Gerichte 1. und 2. Instanz , Art. 170; Austrian Supreme Court decisions OGH 2 Sept. 1998, 9 Ob 237/98p; OGH 4 Feb. 1993, 8 Ob 511/93.)

(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?

Enforcement proceedings in Austria are not public.

(Source: Exekutionsordnung, Art. 59(1).)

There are no hearings on recognition and enforcement of foreign awards, save for the final appeal to the Austrian Supreme Court, where the court has discretion to convene a hearing to discuss the legal questions raised on appeal. However, this discretion has rarely been exercised, and, in any event, the public is not allowed to attend.

(Sources: Exekutionsordnung, Arts. 78 and 83(1); Zivilprozessordnung, Arts. 509(2) and 526(1).)

(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove names of parties or avoid publication of confidential information (e.g. business or State secrets)?

Yes. While the first court order is not published, appeal decisions on recognition and enforcement are, in general, published. Names, addresses and other indications of location are removed so as to keep the decisions anonymous.

When granting or refusing recognition and enforcement, the court of first instance merely stamps its decision on the applicant’s petition, with the relevant details for enforcement. These decisions are not published.

Appeal decisions rendered by the courts of second and third instance (esp. the latter, i.e. Austrian Supreme Court decisions on points of law) are published on the Legal Information System of the Republic of Austria (RIS, available free of charge at www.ris.bka.gv.at). RIS is a computer-assisted information system on Austrian law, coordinated and operated by the Austrian Federal Chancellery. It appears that approximately 99% of all Austrian Supreme Court decisions and only selected decisions of the courts of second instance are currently published on RIS. Apart from RIS, there are other law reports published by private companies.

(Source: Austrian Supreme Court Act (Bundesgesetz vom 19. Juni 1968 über den Obersten Gerichtshof), Arts. 14 to 15a, BGBl. No. 328/1968 as last amended by BGBl. I No. 95/2001.)

While names, addresses and other indications of location are removed to keep published decisions anonymous, either party may still request that court orders on recognition and enforcement be withheld from publication in the RIS database if this would put the anonymity of either or both parties at risk.

(Source: Bundesgesetz vom 19. Juni 1968 über den Obersten Gerichtshof, Art. 15(2).)

H. Other issues

16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?

Recognition and enforcement of partial awards may be obtained in Austria provided that the decision made in these awards determines (i) the merits of the dispute or (ii) jurisdiction.

Interim awards, as described in modern arbitral practice, do not provide a final decision on the merits or jurisdiction, and are thus not enforceable in Austria.

However, Austrian law does not define interim or partial awards, and any decision on the merits, whether it is called a partial or interim award, has been held to constitute a final award.

(Sources: Zivilprozessordnung, Arts. 592(1), 606 and 607; Austrian Supreme Court decisions OGH 8 Mar. 2006, 7 Ob 252/05t; OGH 14 June 2005, 2 Ob 136/05x; OGH 25 June 1992, 7 Ob 545/92.)

17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?

As a general rule, it is possible to obtain recognition and enforcement of foreign awards granting non-monetary relief in Austria.

(Source: Exekutionsordnung.)

18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?

In general, a party can obtain recognition and enforcement of only part of the relief granted if that part is separable from the remainder of the relief.

While Austrian statutory law does not specify whether a party may obtain recognition and enforcement of only part of the relief granted in a foreign award, and jurisprudence has not addressed this question directly, it has been held that, where parts of the award violate public policy, a party can obtain recognition and enforcement of only that part of the relief granted in the award that does not violate public policy, as long as that part is separable from the rest of the award.

(Sources: Austrian Supreme Court decisions OGH 26 Jan. 2005, 3 Ob 221/04b; OGH 05 May 1998, 3 Ob 2372/96m.)

19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?

Generally, in Austria a party may not obtain recognition and enforcement of a foreign award that has been set aside by the competent authority of the country in which, or under the law of which, that award was made.

(Source: New York Convention, Art. V(1)(e).)

However, for States that are parties to the European Convention on International Commercial Arbitration as well as the New York Convention, Art. IX of the former convention limits the grounds upon which a foreign award that has been set aside in its country of origin may be refused recognition and enforcement. In essence, under Art. IX(2) of the European Convention on International Commercial Arbitration, only foreign awards that have been set aside in their country of origin on one of the grounds set out in Art. V(1)(a) to (d) of the New York Convention may be refused recognition and enforcement in Austria.

Accordingly, a foreign award that has been set aside in its country of origin for violation of that country’s public policy (New York Convention, Art. V(2)(b)) may not be refused recognition and enforcement in Austria, provided the award is not entirely incompatible with the Austrian legal system.

Similarly, where an award is set aside on the ground that the subject matter of the dispute cannot be submitted to arbitration in the country where the award was made (New York Convention, Art. V(2)(a)), recognition and enforcement of that award is likely to be granted in Austria; however, the matter does not appear to have been tested in the courts.

(Sources: New York Convention, Art. V; European Convention on International Commercial Arbitration, Art. IX; see Austrian Supreme Court decisions OGH 24 Aug. 2011, 3 Ob 65/11x; OGH 26 Jan. 2005, 3 Ob 221/04b.)

20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?

Ad valorem court fees are to be paid when filing an application for recognition and enforcement of a foreign arbitral award. The court fees are levied without regard to the outcome of the application.

(Source: Austrian Act on Court Fees (Gerichtsgebührengesetz), BGBl. No. 501/1984 as last amended by BGBl. I No. 100/2016.)

Country Rapporteur: Alexander Lütgendorf

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