AUSTRIA Law and Practice Contributed by: Bettina Knoetzl, Katrin Hanschitz, Kirstin McGoldrick and Natascha Tunkel, KNOETZL
6.2 Arrangements for Obtaining Urgent Injunctive Relief Injunctive relief is granted in accelerated preliminary proceedings. Depending on the concrete circum- stances, injunctive relief can sometimes be obtained within 24 hours. Sometimes, the applicant must wait for 14 days, or even more. 6.3 Availability of Injunctive Relief on an Ex Parte Basis Upon request of an applicant, injunctive relief can be awarded ex parte. The respondent will not be heard, in order to avoid frustration of the intended – interim – enforcement act. If injunctive relief is granted ex parte, the respondent’s right to be heard is satisfied only in challenge proceedings. 6.4 Liability for Damages for the Applicant The applicant may be held liable for damages suffered by the respondent if the respondent later successfully discharges the injunction. To compensate possible damages to the respondent, the court may order that a preliminary injunction be subject to posting security by the applicant. This applies irrespective of whether the proceedings are ex parte. 6.5 Respondent’s Worldwide Assets and Injunctive Relief Whenever Austrian courts have international jurisdic- tion for a claim to be secured, they also assume inter- national jurisdiction to issue a preliminary injunction. This also applies if the asset subject to the preliminary injunction is situated in another country. It is neces- sary to check with each applicable jurisdiction indi- vidually whether an Austrian injunction is enforceable in foreign jurisdictions. The new regime of the recast Brussels Regulation substantially facilitates the recog- nition and enforcement of interim measures. 6.6 Third Parties and Injunctive Relief It is a general principle that a preliminary injunction must not interfere with the rights of a third party. It is, however, possible to obtain injunctive relief against a third-party debtor, affirmatively enjoining them from making payments to the debtor. In this way, it is also possible to freeze bank accounts.
6.7 Consequences of a Respondent’s Non- Compliance In order to enforce a preliminary injunction, no addi- tional request for enforcement is necessary. The injunction implies the approval of enforcement. If necessary, a court can enforce the injunction with the help of an enforcement officer. Compliance with an injunction is therefore assured.
7. Trials and Hearings 7.1 Trial Proceedings Preparatory Hearing
Once proceedings have been initiated with a State- ment of Claim served on the defendant, the court will set a date for a preparatory hearing in which the court maps out a schedule and a plan for the course and content of the remaining proceedings. This is also an occasion on which the court is required to explore the possibility of a settlement. Exchange of Written Submissions and the Oral Hearing Usually, the next step involves a further exchange of written submissions prior to the oral hearing. The hearing mainly serves for the court to take evidence, in accordance with the principle that judgments are only based on evidence taken by the court. It is man- datory for witnesses to appear before the court. Writ- ten witness statements and affidavits are used only in preliminary proceedings, in which the general level of proof is intentionally lower so that a speedy decision can be reached, or when the interrogation of a witness or party is practically impossible, for example, due to a prolonged absence or illness. Simplified Proceedings for Smaller Claims For monetary claims not in excess of EUR75,000, proceedings are significantly simplified. A payment order will be issued, predicated only on the plaintiff’s request. If the defendant objects, regular proceed- ings will be initiated. Otherwise, the payment order becomes enforceable. 7.2 Case Management Hearings The two main purposes of an oral hearing are:
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