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Conditions for recognition and enforcement
Which types of judgment (eg, monetary judgments, mandatory or prohibitory orders) are enforceable in your jurisdiction and which (if any) are explicitly excluded from recognition and enforcement (eg, default judgments, judgments granting punitive damages)?
In general, all judgments ordered by a foreign court are enforceable in Austria. It is essential that the foreign judgment represents a writ of execution in its country of origin and is (at least temporarily) enforceable in that country. The foreign judgment need not take the form of a domestic writ of execution within the meaning of the Enforcement Act. However, it must meet certain requirements regarding its determinability and form as a writ of execution.
Further, Austrian public policy must be considered when assessing whether remedies are enforceable in Austria. Only remedies that do not violate the fundamental principles of Austrian law will be enforceable. For example, Austrian law does not countenance punitive damages. While there is no applicable case law, it has been argued that the concept of punitive damages may violate Austrian public policy and would thus be unenforceable in Austria.
How are foreign judgments subject to appeal treated?
In general, foreign judgments must be declared enforceable if they are enforceable according to the laws of the country of origin (ie, in granting the declaration of enforceability, the foreign judgment need not be final and legally binding according to the laws of the country where it was rendered).
In case of an appeal against the decision to grant the declaration of enforceability, the appeal court may – on the application of the party against whom enforcement is sought – stay the proceedings until the foreign judgment has become final and binding. Further, the court may specify the time within which such an appeal must be filed.
What are the formal and documentary requirements for recognition and enforcement of foreign judgments?
The party seeking a declaration of enforceability must submit the original foreign judgment or a copy issued by the court that rendered the judgment, as well as a certified translation of the foreign judgment (where applicable).
What substantive requirements (if any) apply to the recognition and enforcement of foreign judgments? Are enforcing courts in your jurisdiction permitted to review the foreign judgment on the merits?
The substantive requirements for the declaration of enforceability under Austrian law are as follows:
- The foreign judgment is enforceable in the country where it was rendered; and
- Reciprocity is ensured between the country of origin and Austria, by either bilateral or multilateral treaties or other regulations (eg, regulations on reciprocity).
Notwithstanding this, even if reciprocity is ensured by one of the abovementioned means, a declaration of enforceability may be refused if it is established that reciprocity is not practised by the country of origin.
In general, a foreign judgment may not be reviewed on the merits.
What is the limitation period for enforcement of a foreign judgment?
The statute of limitations is a question of substantive – not procedural – law. Thus, the limitation period depends on the claim in question and the law applicable to it. As such, the limitation period and the interruption of the limitation period must be assessed under the law that governs the claim in question.
Under Austrian law, a judgment may be enforced within 30 years of its entry into legal force, irrespective of which limitation period has been applicable to the claim awarded in the judgment. The limitation period starts from the day on which the judgment becomes legally binding. It is interrupted where a motion for enforcement is filed with and finally granted by the competent court.
In the case of a final judgment of a foreign court, Austrian law differentiates between the following two scenarios:
- If the foreign judgment is in principle enforceable in Austria, the statute of limitations must be assessed under the law applicable to the claim awarded in the judgment. Thus, Austrian courts may reject the declaration of enforceability where, under the applicable foreign law, the right to enforce the judgment has already become time barred.
- If the foreign judgment is not enforceable in Austria, such a final judgment only interrupts the statute of limitations under the law applicable to the claim awarded in the judgment and causes the limitation period to restart.
Grounds for refusal
On what grounds can recognition and enforcement be refused?
Besides the general requirements for the issuance of a declaration of enforceability (ie, enforceability in the country of origin and reciprocity), the declaration of enforceability may be denied if:
- the right to be heard has been violated – namely, the opposing party could not properly participate in the foreign proceedings due to irregularities in the proceedings;
- by way of the declaration of enforceability, an action will be enforced that is not admissible under Austrian law or that cannot be enforced at all; or
- the judgment manifestly violates basic principles of Austrian law (public policy).
Simplified special rules apply with regard to judgments of other EU member states. Under no circumstances may a foreign judgment from another member state be reviewed as to its merits. According to the Brussels Regime, upon the opposing party’s application, recognition and enforcement will be refused if:
- the recognition or enforcement is manifestly contrary to Austrian public policy;
- the defendant was not served with the document that instituted the proceedings in sufficient time and in such a way as to enable the defendant to arrange for its defence;
- doing so is irreconcilable with a judgment given in a dispute between the same parties in Austria; or
- doing so is irreconcilable with an earlier judgment given in another EU or non-EU member state involving the same cause of action and the same parties.
Service of process
To what extent does the enforcing court review the service of process in the original foreign proceedings?
A declaration of enforceability of a foreign judgment may be declined if the defendant was not served with the document that instituted the proceedings and thus did not have sufficient time to arrange for its defence. Such an objection can be remedied where the defendant actually participated in the subsequent proceedings. Also, pursuant to Austrian case law, the service of a document in a foreign language to an Austrian addressee is not deemed to be properly served if no German translation of the document is attached. However, such an objection may be disregarded if the defendant could understand the content of the respective document instituting the proceedings.
Pursuant to the recast Brussels Regulation, the recognition and enforcement of a judgment may be refused where the judgment was given in default of appearance, if the defendant was not served with the document that instituted the proceedings (or with an equivalent document) in sufficient time and in such a way as to enable it to arrange for its defence.
What public policy issues are considered in the court’s decision to grant recognition and enforcement? Is there any notable case law in this regard?
Generally, Austrian courts examine foreign judgments for their consistency with Austrian public policy (procedural and substantive public policy). However, according to Austrian case law, the public policy standard is defined very narrowly. Refusing the declaration of enforceability or the enforcement of foreign judgments refers only to the violation of the fundamental principles of Austrian jurisdiction (eg, the mandatory principles of constitutional or criminal law). Under no circumstances may a foreign judgment be reviewed as to its merits. Objections to enforcement are not observed ex officio, but must be put forward by the parties. In practice, objections to enforcement based on this ground are fairly common, but succeed very rarely.
What is the extent of the enforcing court’s power to review the personal and subject-matter jurisdiction of the foreign court that issued the judgment?
When deciding on the declaration of enforceability, Austrian courts will examine whether, pursuant to Austrian rules on jurisdiction, the foreign court had jurisdiction over the legal matter. When assessing this prerequisite, it is sufficient for the jurisdiction of the foreign court to have been established under any of the Austrian provisions on jurisdiction, no matter whether this legal ground was actually applied in the state of origin. The objection of a lack of jurisdiction, for example, may be successfully established in the case of a default judgment of a court that did not have jurisdiction over the matter and to which the defendant did not submit at any stage of the proceedings.
Under the Brussels Regime, the jurisdiction of the court of origin will not be reviewed by the enforcing court. Further, the recast Brussels Regulation states that the test of public policy may not be applied to the rules relating to jurisdiction. In exceptional cases (eg, consumers and employees) the court, in its examination of the grounds of jurisdiction, will be bound by the findings of fact on which the court of the state of origin based its jurisdiction.
This also applies to the question of whether the enforcing court will examine whether the foreign court had subject-matter jurisdiction over the dispute.
Concurrent proceedings and conflicting judgments
How do the courts in your jurisdiction address applications for recognition and enforcement where there are concurrent proceedings (foreign or domestic) or conflicting judgments involving the same parties/dispute?
Austrian courts may refuse to issue a declaration of enforceability if the foreign judgment contradicts other final and conclusive judgments involving the same parties.
Further, under the Brussels Regime the court may refuse recognition and enforcement if:
- the judgment is irreconcilable with a judgment given between the same parties in the addressed member state; or
- the judgment is irreconcilable with an earlier judgment given in another member state or in a third state involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the addressed member state.
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