AUSTRIA Law and Practice Contributed by: Bettina Knoetzl, Patrizia Netal, Katrin Hanschitz and Natascha Tunkel, KNOETZL
tion of proceedings is the service of the decision on the award debtor (which may take time regarding a foreign debtor outside the EU). Should the decision be appealed, the proceedings will, on average, take between four and ten months, and possibly longer in complex cases. In the event of a recourse to the Austrian Supreme Court, a further six months may be expected until a decision is rendered. For the duration of enforcement proceedings, see 2.2 Enforcement of Domestic Judgments . 4.6 Challenging Enforcement of Arbitral Awards Appeal Proceedings The award debtor has a right to appeal ( Rekurs ) the decision within four weeks after being served the deci - sion, or within eight weeks if the award debtor has its seat or domicile abroad. The appeal decision may also be appealed before the Austrian Supreme Court ( Revi- sionsrekurs ) under certain conditions – in particular, if the dispute hinges on a legal question of general sig - nificant importance that has not previously been dealt with in the case law of the Austrian Supreme Court, or if the appeal court has deviated from existing case law of the Austrian Supreme Court. The general approach of the courts towards the rec - ognition and enforcement of arbitral awards is prag - matic, and the grounds to oppose recognition and enforcement as exhaustively listed in the applicable conventions are interpreted restrictively. The award debtor that opposes enforcement bears the burden of proof for the grounds it relies upon. The options available to appeal the enforcement of an award are identical to those generally available to appeal enforcement (see 2.2 Enforcement of Domes- tic Judgments ). Impact of Parallel (Appeal or Setting-Aside) Proceedings In practice, an arbitral award may be subject to set - ting-aside proceedings. In this case, the court may suspend the proceedings upon the application of the award debtor until a decision in the setting-aside proceeding has been rendered. Furthermore, to the extent that enforcement measures shall continue, the court may order the award creditor to post security.
This approach is in line with both Article VI of the New York Convention and Section 411, paragraph 5 of the EA. In this context, the Austrian Supreme Court has held that Article VI of the New York Convention is only applicable regarding proceedings relating to the dec - laration of recognition and enforceability, while the EA applies during enforcement proceedings (OGH 3 Ob 248/11h). If an arbitral award is successfully set aside, the award debtor can apply to the court of first instance to lift (or amend) its decision with regard to the originally granted recognition and enforceability (see Section 414 of the EA). The Austrian Supreme Court has held that a foreign arbitral award is not to be recognised and enforced in Austria if the underlying arbitration agreement sets forth that the arbitral award may be appealed before another “second-instance” arbitral tribunal (OGH 3 Ob 39/13a). In such cases, the arbitral award lacks bind - ing force until the period provided for such an appeal has expired unused, or until the review proceedings initiated by one of the parties have been terminated Arbitral awards granting declaratory relief can, owing to their nature, only be recognised and relied upon. Under Austrian law, such awards will be observed but cannot be the subject of enforcement proceedings. In principle, Austrian law allows specific performance as a relief, and will recognise and enforce arbitral awards granting such relief. However, in such cases, the specific performance must be clearly described and constitute an adequate remedy that can effec - tively be enforced under the law. Public Policy Objection Public policy grounds are to be observed by the courts ex officio. The obligation to observe public policy is derived from Article V, paragraph 2 lit b of the New York Convention as a ground to refuse the declaration of recognition and enforceability of foreign arbitral awards and from Section 613 in combination with Section 611, paragraph 2, No 8 of the CCP as a and the arbitral award confirmed. Relevance of Relief Requested
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