AUSTRIA Law and Practice Contributed by: Bettina Knoetzl, Katrin Hanschitz, Dr Kirstin McGoldrick and Natascha Tunkel, KNOETZL HAUGENEDER NETAL GmbH
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. In order to compensate possible damages to the respondent, the court may order that a prelimi- nary injunction be subject to posting security by the applicant. This applies irrespective of wheth- er the proceedings are ex parte. 6.5 Respondent’s Worldwide Assets and Injunctive Relief Whenever Austrian courts have international jurisdiction for a claim to be secured, they also assume international jurisdiction to issue a pre- liminary injunction. This also applies if the asset subject to the preliminary injunction is situated in another country. It is necessary to check with each applicable jurisdiction individually whether an Austrian injunction is enforceable in foreign jurisdictions. The new regime of the recast Brus- sels Regulation substantially facilitates the rec- ognition and enforcement of interim measures. 6.6 Third Parties and Injunctive Relief It is a general principle that a preliminary injunc- tion 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 additional request for enforcement is neces- sary. 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 there- fore assured.
7. Trials and Hearings 7.1 Trial Proceedings Preparatory Hearing
Once proceedings have been initiated with a Statement 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 mandatory for witnesses to appear before the court. Written witness state- ments and affidavits are used only in preliminary proceedings, where the general level of proof is intentionally lowered so that a speedy deci- sion 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 pay- ment order will be issued, predicated only on the plaintiff’s request. If the defendant objects, regular proceedings will be initiated. Otherwise, the payment order becomes enforceable.
63
CHAMBERS.COM
Powered by FlippingBook