AUSTRIA Law and Practice Contributed by: Bettina Knoetzl, Patrizia Netal, Katrin Hanschitz and Natascha Tunkel, KNOETZL
taken this as an indication that interim awards are to be treated as final awards. Enforceability of Interim Measures Interim measures issued by an arbitral tribunal are dealt with separately under Section 593 of the CCP. The relevant provision applies irrespective of the seat of arbitration – ie, it applies equally to domestic and international arbitrations. Interim measures issued by an arbitral tribunal are enforceable under Austrian law, subject to the follow - ing conditions: • the other party has been heard (ie, the interim measure was not rendered ex parte); • the interim measure is issued in writing and is undersigned by the sole arbitrator or the president of the arbitral tribunal; and • there are no reasons to deny such enforcement. The list of grounds for refusal is limited and the com - petent district court may only refuse enforcement if: • the seat of arbitration is in Austria and the measure suffers from a defect that constitutes a ground for setting aside an arbitral award under Austrian law; • the seat of arbitration is not in Austria and the measure suffers from a defect that would consti - tute grounds for refusal to recognise and enforce a foreign arbitral award; • the enforcement would be incompatible with a previous domestic or recognised foreign court measure; or • the means of protection is unknown under Austrian law and no appropriate means as provided by Aus - trian law were requested. 4.4 Process of Enforcing Arbitral Awards Domestic arbitral awards are, by law, deemed equiva - lent to a court judgment. They are considered final and binding upon service on the parties. In order to apply for enforcement, the arbitral award must be confirmed as final, binding and enforceable by the sole arbitrator or presiding arbitrator, as the case may be. This requires parties to revert to the arbitrator(s) after service of the arbitral award to have confirmed on the original that the award is final and binding; see
also Article 36 (6) of the Vienna International Arbitral Centre’s Rules of Arbitration and Mediation 2021 (the “Vienna Rules”). For foreign arbitral awards, a declaration of recog - nition and enforceability must be obtained from the 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. The compe - tent 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
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