AUSTRIA Law and Practice Contributed by: Bettina Knoetzl, Katrin Hanschitz, Kirstin McGoldrick and Natascha Tunkel, KNOETZL
Prerequisites The Enforcement Act distinguishes between prelimi- nary injunctions: • for securing monetary claims; • for securing other claims; and • for securing a right. To secure monetary claims, injunctive relief may be granted if: • the creditor can credibly show its claim (compelling evidence is not necessary); • the debtor is likely to frustrate or significantly obstruct enforcement by damaging, destroying, hiding or removing assets (“subjective endanger- ing”); or • the judgment would have to be enforced in a state where enforcement is secured neither by inter- national agreements nor by EU law (“objective endangering”). Injunctions for Securing Monetary Claims Injunctions available for securing monetary claims include: • orders for the deposit of money with the court; • freeze orders regarding movable and immovable assets; and • orders against third party debtors (ie, debtors of the debtor), enjoining them from paying the debtor. By an order against a debtor’s bank, bank accounts can also be frozen. Practice Courts are typically reluctant to assume that a party is likely to damage, destroy, hide or remove assets, and therefore require a showing of a strong and concrete
adverse inferences may be drawn by the court from such a refusal. Client-attorney correspondence and attorney work product are protected by legal privilege irrespective of where such documents are located. 5.6 Rules Disallowing Disclosure of a Document A party ordered to produce a piece of evidence is entitled to object to the order to protect: • family affairs; • the party’s duty of preserving honour; • itself or third parties from criminal prosecution; • legal privilege; or • business secrets. However, the requested party may not refuse to pro- duce the requested evidence if: • it previously referred to the piece of evidence (mostly documents) in the proceedings; • substantive law requires the requested party to produce the evidence (this also applies to evidence in the possession of third parties); or • the evidence is in the form of a document and may be considered to be of joint use with respect to both parties (eg, a written contract). This also applies to evidence in the possession of third parties if the piece of evidence is of joint use with respect to the third party and either initial party to the litigation.
6. Injunctive Relief 6.1 Circumstances of Injunctive Relief Timing
The Austrian Enforcement Act provides for acceler- ated preliminary proceedings in which the court may order injunctive relief (preliminary injunctions) to pre- vent the frustration or significant obstruction of future enforcement. A creditor may apply for a preliminary injunction together with the claim initiating legal pro- ceedings, prior to the actual initiation of legal proceed- ings, during legal proceedings and – if foreign courts have jurisdiction in the case – independently from legal proceedings in Austria.
likelihood in this regard. No Anti-Suit Injunctions
Austrian law does not provide for injunctions to pre- vent parallel proceedings in another jurisdiction. If the same case is pending in different courts, the principle of priority applies – similar to the system in the Brus- sels Regulation.
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