AUSTRIA Law and Practice Contributed by: Philipp Scheuba, BLS Rechtsanwälte GmbH
including documents of the case, to the insurer. After such declaration of damage has been filed, the limi- tation period is suspended until the insurer sends a written decision about coverage. Any possible claims become time-barred if not claimed by the policyholder within ten years. If the insurer denies coverage, the insured person has to assert their claims in court with- in one year (see 12.1 Significant Legislative or Regu - latory Developments for possible changes ahead). 9.2 Insurance Disputes Over Jurisdiction and Choice of Law Generally, uncertainties as to the (international, sub- ject matter and local) jurisdiction of a court must be examined by the court of its own motion, without the need for an application by a party. However, in most cases, potential lack of jurisdiction is only examined in detail following a respective motion by the defend- ant party. Parties may also agree on the jurisdiction of a certain court within the limits set by law. In the absence of a valid agreement, statutory provisions stipulate which court has jurisdiction. If the court seized decides that it has jurisdiction, the following procedural step is to examine which law is applicable. In this context, the applicable law may result from the agreement of the parties and, in the absence thereof, from statutory provisions. Of course, an agreement on jurisdiction as well as on the appli- cable law is not conceivable in the case of tortious claims. For claims with foreign references – eg, when the (re) insurer has its seat in a foreign country – the jurisdic- tion follows the rules of Regulation (EU) 1215/2012 on Jurisdiction and the Recognition and Enforce- ment of Judgments in Civil and Commercial Matters (EuGVVO). The applicable law follows Regulation EG 593/2008 on the Law applicable to Contractual Obligations in Insurance Contracts. As reinsurance contracts are explicitly excluded from the scope of Regulation EG 593/2008, Austrian Law on Interna- tional Private Law is applicable. 9.3 Litigation Process The Austrian legal system offers various avenues for initiating court action, granting plaintiffs discretion in some cases, while mandating specific procedures in
others. The litigation process is governed by the Code of Civil Procedure, which states the principle of orality for litigation processes. Most legal actions against insurers are filed using the national order for payment form. The court issues a so-called conditional order for payment on the basis of the plaintiff’s alleged facts, in which the insurer is ordered to pay the sum of money claimed or to raise an objection within a certain period of time, after which ordinary court proceedings are initiated. This proce- dure must be carried out nationally up to EUR75,000; internationally there is no obligation to carry out an order for payment procedure, and also no value limit. In the case of amounts exceeding EUR75,000, or if the claim is not merely in the form of money, the regular court proceedings shall be instituted immediately, in which the parties submit their substantive and legal arguments, on which the court shall decide. If the order for payment is not objected to or a judg- ment is not appealed to the next higher court, the order for payment or judgment becomes effective. The prevailing party can then file an application for execu- tion, which initiates the execution proceedings. 9.4 Enforcement of Judgments According to the EuGVVO, all judicial decisions of the civil and commercial courts of the EU member states are recognised ipso jure without a separate legal act and are enforceable in Austria. However, recognition can be refused for certain reasons listed in the EuG- VVO. In the case of an application for enforcement of a for- eign judgment, the actual enforcement is preceded by a so-called exequatur procedure – ie, the procedure for declaring enforceability. Special conditions have to be considered in the case of a European Enforcement Order in accordance with the EuVTVO. 9.5 Enforcement of Arbitration Clauses In addition to decisions on insurance contract dis- putes by state courts, there is the possibility of declar- ing non-state courts (arbitral tribunals) competent for disputes arising out of a pre-determined legal rela- tionship in the form of an arbitration clause. This is usually achieved by an additional written agreement
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