AUSTRIA Law and Practice Contributed by: Bettina Knoetzl, Patrizia Netal, Katrin Hanschitz and Natascha Tunkel, KNOETZL
Austrian courts to apply for enforcement. The prereq - uisites under Austrian domestic law (Section 406 of the EA) and the provisions of international treaties to which Austria is a party – in particular, the New York Convention – are very much aligned. Where the New York Convention applies, its requirements and refusal grounds will usually be decisive, because Section 614 of the CCP gives priority to international law. Section 406 of the EA remains relevant as part of the domestic exequatur framework where no applicable treaty or EU instrument displaces it. The competent courts are the district courts at which the award debtor has its seat, domicile or habitual residence or at the place where the enforcement measure shall be implemented (see Section 409 of the EA). In most cases, the formal requirements of an applica - tion for a declaration of recognition and enforceability are those of the New York Convention, as interna - tional treaties take precedence over Austrian national law, pursuant to Section 614 of the CCP. However, in deviation from Article IV, paragraph 1 lit b of the New York Convention, Austrian law explicitly states that it is only necessary to provide the original or a certified copy of the arbitration agreement upon request by the court (see Section 614 of the CCP). The most important prerequisite to be fulfilled is that the applicant shall submit the “duly authenticated original award” or a “duly certified copy” thereof to the competent district court together with the applica - tion to recognise and enforce the award. In line with case law of the Austrian Supreme Court ( Oberster Gerichtshof , or OGH), this requirement is met if the authenticity has been confirmed by: • an Austrian authority (see OGH 3 Ob 62/69); • an authority of the country whose law governs the arbitration (see standing case law RS0109158); or • a representative of the administering arbitral insti - tution if the rules of the institution authorise the representative to do so (see OGH 3 Ob 65/11x and OGH 3 Ob 208/15g) – as an example, see Article 36 (4) of the Vienna Rules. In practice, in the absence of a bilateral treaty, it is necessary to super-legalise (or obtain an apostille for) an authentication that was issued outside Austria
in order for it to be recognised and fulfil the formal requirements. Furthermore, if the arbitral award is not in the offi - cial court language of Austria (ie, German), it must be translated and the translation must be certified by an official or sworn translator, or by a diplomatic or consular agent. In Austria, all translators listed as court-sworn translators fulfil the requirement of “offi - cial or sworn translator” under the New York Con - vention. Austrian courts require the translation of the entire award, in comparison to other countries, where partial translations may be deemed sufficient (OGH 3 Ob 211/05h). The proceedings for the declaration of recognition and enforceability of a foreign arbitral award are, in first instance, conducted ex parte. Section 410 of the EA provides that the application is decided without prior oral hearing and without hearing the opponent. In practice, award creditors combine the application for the declaration of recognition and enforceability with the application for the actual enforcement of the arbi - tral award, which is permissible under Section 412, paragraph 1 of the EA. The actual enforcement proceedings are conducted in the same way as domestic proceedings (see 2.2 Enforcement of Domestic Judgments ) by means of application to the competent district court where the award debtor has its seat or where the object, asset or third-party debtor is registered or located. 4.5 Costs and Time Taken to Enforce Arbitral Awards Court Fees An application for a declaration of recognition and enforceability does not trigger court fees. For the application for enforcement, the general rules apply (see 2.2 Enforcement of Domestic Judgments ). Duration of Proceedings A declaration of recognition and enforceability can be obtained very quickly. Provided that all relevant documents have been submitted, the rendering of the ex parte decision may take no more than two to four weeks. However, in complex cases, it may take longer. Very often, a relevant factor affecting the dura -
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