AUSTRIA Law and Practice Contributed by: Bettina Knoetzl, Patrizia Netal, Katrin Hanschitz and Natascha Tunkel, KNOETZL
4.2 Variations in Approach to Enforcement of Arbitral Awards Regarding recognition and enforcement, Austrian law distinguishes between domestic arbitral awards (with the seat of arbitration in Austria) and foreign arbitral awards (with the seat of arbitration outside Austria). Domestic arbitral awards are, by law, deemed to have the same effect as a final court judgment (Section 607 of the CCP). Based on this and pursuant to Section 1, paragraph 16 of the EA, domestic arbitral awards constitute an enforceable title under Austrian law. Foreign awards must first be formally recognised and declared enforceable (generally referred to as “exe - quatur”) by an Austrian court to constitute an enforce - able title under Austrian law (see Section 406 et seq of the EA). 4.3 Categories of Arbitral Awards Not Enforced Enforceability of Arbitral Awards All arbitral awards that are final and binding are gen - erally enforceable under Austrian law. This includes partial awards (disposing of part of the main claim), final awards, additional awards, and awards granting specific performance. Both the finality of a decision and the fact that it deals with the merits of the case are generally considered prerequisites for an enforceable arbitral award. This applies under Austrian law as well as the New York Convention. Therefore, the enforcement of interim or interlocutory awards that are not final or that deal only with procedural issues raises a number of questions. Since the amendment of the Austrian arbitration law (Section 577 et seq of the CCP) in 2006, these ques - tions have been clarified to the extent that Section 592 of the CCP explicitly provides that a decision on the jurisdiction of the arbitral tribunal may be rendered in the form of an (interim) award, and Section 609 para - graph 4 of the CCP determines that the cost decision shall be rendered in the form of an award. In both cases, such awards are subject to the same provi - sions that apply to arbitral awards in general – ie, they become final and binding, are subject to setting-aside proceedings and are enforceable. Legal analysis has
The debtor may also challenge enforcement based on procedural irregularities, including defects in service that made it impossible for the defendant to duly par - ticipate in the main proceedings. Brussels I Recast provides further bars to enforce - ment if the judgment is irreconcilable with an earlier, recognisable judgment involving the same cause of action and the same parties. 4. Arbitral Awards 4.1 Legal Issues Concerning Enforcement of Arbitral Awards Austria is an arbitration-friendly jurisdiction, so it is rare to encounter issues in proceedings to obtain the recognition and enforcement of an arbitral award in Austria. The relevant provisions pertaining to the recognition and enforcement of an arbitral award are contained in the CCP (which is based on the UNCITRAL Model Law), the EA and the relevant international treaties, so international arbitration practitioners will find a familiar legal environment in Austria. Notably, Austria has rati - fied the following: • the Geneva Convention on the Execution of For - eign Arbitral Awards (1927) (the “Geneva Conven - tion”); • the European Convention on International Com - mercial Arbitration (1961) (the “European Conven - tion”); • the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (the “New York Convention”); • the Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the “ICSID Convention”); and • a number of bilateral investment treaties. At the time of writing, Austria has not yet signed the agreement for the termination of intra-EU bilat - eral investment treaties, which aims to implement the “Achmea decision” rendered by the ECJ.
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