AUSTRIA Law and Practice Contributed by: Farid Sigari-Majd and Mathias Lehner, Freshfields
2.7.2 Assignment/Novation of Leases Under Foreign Laws An Austrian court would look to the law governing the lease to determine if the rights thereunder can be assigned or transferred and if the lessor′s consent is required (see 2.1.2 Application of Foreign Laws for details and limitations). It should be noted that any transfer of title would have to be tested separately against the law applicable to property rights under Austrian conflicts of laws rules (ie, Austrian law in the case of an aircraft registered in Austria – see 1.2.2 Sales Governed by English or New York Law ). 2.7.3 Enforceability of Lease Assignments/ Novations An aircraft and/or engine lease assignment or transfer agreement is not required to be translated, certified, notarised or apostilled/legalised to be recognised or enforceable as a matter of Austrian law (see 1.1.2 Enforceability against Domestic Parties for language requirements in legal proceedings). 2.7.4 Filing/Registration of Lease Assignments/ Novations An aircraft (or engine) lease assignment or transfer agreement is not required to be registered or filed in the Austrian aircraft register as such. However, an Austrian operator must submit a copy of the assigned or transferred lease agreement to the ACG and (if applicable) register the change in ownership of the aircraft (see 1.2.4 Registration, Filing and/or Consent From Government Entities ). 2.7.5 Taxes/Duties Payable on Assignment/ Novation The execution of an assignment in Austria is subject to a stamp duty of 0.8% of the amount for which the assigned claim was acquired ( Entgelt ). Stamp duty may – inter alia and under certain circumstances – also be triggered if a signed document (or substitute documentation thereof) is subsequently brought into Austria. There are various commonly used methods to mitigate Austrian stamp duty risks.
limited income taxation (such as lessors having a suffi - cient nexus to Austria, eg, a permanent establishment in Austria or an Austrian permanent representative). 2.6.10 Mandatory Notice Periods A termination for cause ( aus wichtigem Grund ) is not normally subject to a notice period. In other cases, the parties are generally free to agree on specific notice periods in the lease. The lessor should comply with any mandatory notice periods under Austrian law (eg, a “reasonable” period if no notice period has been agreed, or one week of prior notice when enforcing security). 2.6.11 Lessees’ Entitlement to Claim Immunity Sovereign immunity may prevent an Austrian court from rendering a judgment, even if the beneficiary of immunity has taken part in the proceedings. A waiver of immunity will be accepted if it has been granted by the competent authority or person. 2.6.12 Enforcement of Foreign Arbitral Decisions Austria has ratified the New York Convention, and final and binding foreign arbitral awards are generally rec - ognised and enforced in Austria in accordance with the New York Convention. 2.6.13 Other Relevant Issues The authors do not know of any other relevant issues that lessors should be aware of in relation to the enforcement of their rights. 2.7 Lease Assignment/Novation 2.7.1 Recognition of the Concepts of Contractual Assignment and Novation Austrian law recognises an assignment of rights ( Zes- sion ) as well as a transfer of contract (comprising rights and obligations) to a third party with the consent of the debtor ( Vertragsübernahme ). The term “novation” in Austrian law is usually used to describe the agreed replacement of an existing obli - gation with a new one between the same parties.
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