AUSTRIA Law and Practice Contributed by: Florian Haugeneder, Patrizia Netal, Jurgita Petkutė and Natascha Tunkel, KNOETZL
11.2 Excluding/Expanding the Scope of Appeal Under Austrian law, parties cannot agree to exclude or expand the scope of an appeal or challenge. 11.3 Standard of Judicial Review It is firmly established in the case law of the Austrian Supreme Court that there is no révision au fond of the merits of the case (OGH 18 OCg 1/24g). This principle is strictly applied, and the Austrian Supreme Court has consistently refused to entertain a review of the merits of the arbitral decision when claimants in setting-aside proceedings have requested this in the guise of annul - ment grounds. Austria has ratified the New York Convention with - out reservation. Austria is also a contracting state to several other multilateral conventions on the recogni - tion and enforcement of arbitral awards, including the 1961 European Convention on International Commer - cial Arbitration and the 1927 Geneva Convention on the Execution of Foreign Arbitral Awards, as well as a number of bilateral agreements governing the recip - rocal recognition and enforcement of arbitral awards. Moreover, Austria has ratified the 1965 Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States, as well as numerous bilateral investment treaties. 12.2 Enforcement Procedure 12. Enforcement of an Award 12.1 New York Convention Arbitral awards are deemed to be equivalent to judg - ments of state courts and thus will be enforced in the same way – ie, by means of an application to the district court ( Bezirksgericht ) of the district where the respondent has its seat or where the object, asset or third-party debtor that will serve to satisfy the claim - ant’s request for enforcement is registered or located. An authenticated original or a duly certified copy of the arbitral award must be submitted together with the application for enforcement. The original or a cer - tified copy of the arbitration agreement need only be presented upon a request from the court.
If the arbitration was seated outside Austria, the award must first be formally recognised and declared enforceable (pursuant to the New York Convention or other multilateral or bilateral treaties) by the district court that is competent for enforcement. The appli - cation for recognition can be made together with the request for enforcement, and the courts will decide simultaneously on both requests. After being declared enforceable, the foreign award is treated as a domes - tic arbitral award – ie, equivalent to the judgment of an Austrian court. There is no automatic suspension of the enforcement of an arbitral award if setting-aside proceedings have been initiated. However, upon the application of a party (usually the award debtor), the court may – but is not obliged to – stay enforcement proceedings until a final decision is rendered in the setting-aside pro - ceedings. A pragmatic solution employed by Austrian courts in this situation is to make continuation of the enforcement subject to the posting of security by the award creditor. If the arbitral award is set aside, the effects thereof depend on the applicable law and the international treaty governing its recognition and enforcement. An arbitral award that has been set aside by the Aus - trian courts will not be enforced in Austria. As regards foreign awards, the Austrian courts do not normally enforce arbitral awards that have been set aside under the regime of the New York Convention. However, the Austrian Supreme Court has held (in OGH 3 Ob 2/21x) that it is a precondition that the (foreign) setting-aside proceedings do not violate Austrian public policy. Under the regime of the European Convention, the Austrian courts have also previously recognised and enforced a foreign arbitral award that had been set aside. At the enforcement stage, a state or state entity may attempt to raise the defence of sovereign immunity. However, Austrian courts will only consider sovereign immunity in connection with sovereign acts, but not if the state or state entity acted in a private capacity. The burden of proof for these circumstances lies with the state or state entity invoking immunity.
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