AUSTRIA Law and Practice Contributed by: Bettina Knoetzl, Katrin Hanschitz, Kirstin McGoldrick and Natascha Tunkel, KNOETZL
1. General 1.1 General Characteristics of the Legal System The Austrian legal system is steeped in civil law. Laws are based on codes and statutes. Civil procedure contemplates an adversarial process with inquisito- rial elements: The proceedings and the judge are lim- ited to the factual allegations of the parties; however, the judge is not a mere “referee” (eg, in the judges’ inquisitorial role, they will be the primary interrogator A public hearing is obligatory. The judge will deter- mine all relevant facts of the case in the hearing, hear parties and witnesses, discuss the content of docu- ments and – if needed – appoint and consider expert witnesses. Parties and lawyers are entitled to interro- gate witnesses and experts. The underlying principle is that the judge (as the finder of fact) should get an immediate and personal impression of the parties, the witnesses and the case. 1.2 Court System Court Hierarchy of parties and witnesses). Obligatory Public Hearings Austrian courts are organised at four levels: District Courts, Regional Courts, Higher Regional Courts and the Supreme Court. The District Courts are the courts of first instance in matters involving a maxi- mum amount in dispute of EUR15,000 and, regard- less of the amount in dispute, in certain subject mat- ters (primarily family law and tenancy law). Regional Courts have jurisdiction over first instance rulings on all legal matters not assigned to District Courts. They are also competent to rule on appeals from District Court decisions. Higher Regional Courts adjudicate appeals from Regional Court decisions. Specialised Commercial Courts Commercial matters are decided by commercial courts. In the capital city, Vienna, a separate commer- cial district court and commercial regional court are established. In other provinces, the regional (district) courts also function as commercial courts.
The Supreme Court The Supreme Court is the highest court of appeal. There is no further (domestic) remedy available with respect to its decisions. Its function is to ensure uniform application of the law throughout Austria. Although lower courts are not legally bound by its decisions, the Supreme Court’s law has an effective precedential value. 1.3 Court Filings and Proceedings Court filings are not public. Hearings, however, are open to the public. It is only possible to restrict public access if, for instance, such restrictions are neces- sary for maintaining public order, protecting certain categories of information (such as banking secrets, business secrets or state secrets), or if the hearing involves personal family matters. 1.4 Legal Representation in Court In certain legal disputes, the parties must be repre- sented by a lawyer admitted to the Austrian Bar and they may not represent themselves. A foreign lawyer may not represent a party in these cases. This limitation applies to: • disputes of first instance before Regional Courts; • disputes before District Courts if the amount in dispute exceeds EUR5,000; and • all appeal proceedings. In all other proceedings, the parties may (with a few exceptions) be represented by any person, including by foreign counsel.
2. Litigation Funding 2.1 Third-Party Litigation Funding
The permissibility of third-party litigation funding was the subject of fierce debate in the early 2000s. Now, however, third-party litigation funding is a recognised tool in Austria and is generally accepted without restrictions. The political reason for this was the lim- ited possibility of a collective suit in Austria, which was compensated by third-party financing and “Austrian- type mass claims”. However, Austria implemented the EU Directive 2020/1828 on representative actions for
15 CHAMBERS.COM
Powered by FlippingBook