Interim measures in Austria

1.1.1 Under Austrian law, interim measures are governed by the Austrian Enforcement Act (EA), namely sections 378 et seq. A series of other regulations contain specific provisions, such as the following 1 The listing is not meant to be exhaustive. :

• section 24 of the Federal Act against Unfair Competition secures cease-and-desist orders under competition law;
• section 87c of the Austrian Copyright Act secures cease-and-desist orders under copyright law;
• section 458 of the Austrian Civil Procedure Code (CPC) establishes the legal basis for interim relief in actions of trespass;
• section 48 of the Austrian Anti-trust Code provides interim measures in order to bring an end to certain violations such as infringements of the cartel prohibition;
• section 74 of the Austrian Code for the Labour and Social Court allows preliminary payments in social justice proceedings.

1.1.2 At a European level, article 35 of Regulation (EC) No 1215/2012 (Brussels I Regulation) provides for the possibility of applying for provisional, including protective, measures to the courts of a Member State, even if the courts of another Member State have jurisdiction as to the substance of the matter. In international contexts, bi- and multilateral treaties such as the Lugano Convention may be relevant.

2.1.1 If the request for interim measures is filed at the same time as the lawsuit or in the course of pending proceedings, the court of the main proceedings has jurisdiction 2 EA, s 387(1). .

2.1.2 Otherwise it is primarily the court in whose jurisdiction the respondent is domiciled or has its habitual residence or seat that will have jurisdiction 3 EA, s 387(2) in conjunction with the Court Jurisdiction Act (JN), s 66. . In the event that such jurisdiction is not given, it is either the location of the concerned object or the garnishee’s domicile, habitual residence or seat or the place where the interim measure is to be executed which is determinative 4 EA, s 387(2). . This applies not only to the period prior to court proceedings, but also in securing upcoming arbitral awards 5 CPC, s 585.  or pending proceedings abroad.

2.1.3 Within the scope of European law, the jurisdiction of the court of the main proceedings may additionally result from the Brussels I Regulation.

2.1.4 Austrian Courts have international jurisdiction to order interim relief if the matter complies with the above-stated requirements regarding the regional rules of territorial jurisdiction 6 JN, s 27a .

2.2.1 Jurisdiction clauses relating to interim measures are invalid under Austrian law 7 EA, s 402(4) in conjunction with s 51. . Clauses designating jurisdiction of the court of the main proceedings do not determine jurisdiction for interim relief, but may of course affect it (see paragraph 2.1.1 above).

2.3.1 Before the main proceedings are pending, district courts (“Bezirksgericht”) are competent to order interim measures 8 EA s 387(2). , but in certain matters such as in competition law, copyright law, consumer protection law or labour and social law, the potentially competent court of the main proceedings has jurisdiction 9 EA s 387(3) and (4); this provision applies analogously to labour and social law: cp. Austrian Supreme Court, 5 July 2001, 8 ObA 122/01a . This court may not necessarily be a district court.

2.3.2 In Austria, in most court districts, commercial and labour law cases are handled by the “Landesgericht”. In Vienna only there is a special Commercial Court (“Handelsgericht”) and a Labour Law Court (“Arbeits- und Sozialgericht”)

3.1.1 The interim measures provided for by Austrian law can be divided into three categories: preventive measures, regulatory measures and performance measures. The categorisation is not of great practical importance, but provides a general overview by presenting the principal characteristics.

Preventive measures (“Sicherungsverfügungen”)

3.1.2 Preventive measures may be granted in order to secure the enforceability of either monetary claims 10 EA, s 379(2) no 2.  (see section 3.2) or other claims 11 EA, s 381 no 1. (see section 3.3) from which an ultimate judgment may be satisfied. The latter also includes actions for declarations or actions requesting a change of a legal right or status 12 Regarding actions for declarations this is controversial. .

3.1.3 The purpose and content of these measures is to ensure the judicial assertion or realisation of a specific claim. The measures taken must therefore be within the scope of the underlying claim, which means that they can never grant more rights or burden the opponent to a greater extent than a favourable decision would. 

Regulatory measures (“Regelungsverfügungen”)

3.1.4 Regulatory measures allow for constructive intervention and thus regulate the temporary state of affairs rather than just freeze the situation as preventive measures would. However, there is no clear definition, and the term itself is subject to controversies. Section 381 no 2 of EA is seen as the key provision for regulatory measures.

3.1.5 The function of regulatory measures exceeds the security purpose of preventive measures. Section 381 no 2 of EA refers to preventing imminent violence or irrecoverable damage 13 EA, s 381 no 2. .

3.1.6 In spite of the wide drafting of section 381, regulatory measures cannot be considered separately from a contentious legal position or its violation and are therefore contingent upon the existence of a right. But the type and the extent of such measures are not linked to the contents of the main claim. Regulatory measures attempt to create a temporary, tolerable state of affairs until full judicial protection is guaranteed.

3.1.7 As regards the nature of any imminent irrecoverable damage, there are many examples found in case law, including for instance imminent damage to health, violations of privacy and rights relating to personality (e.g. right to a name), imminent loss of customers, violation of a non-compete clause by an executive employee, imminent trade libel, imminent loss of sales (e.g. in relation to competition law infringements), and the disloyal exercise of voting rights by a trustee of a corporation.

Performance measures (“Leistungsverfügungen”)

3.1.8 Performance measures provide preliminary fulfilment (or performance) of an alleged obligation. While the law expressly refers to performance measures only in very particular cases, e.g. in maintenance matters 14 EA, s 382(1) no 8 letter a. , case law holds that these measures are admissible within the scope of section 381 no 2 of EA. 

3.1.9 With this in mind, performance measures can be taken in order to prevent imminent violence or irrecoverable damage, but only insofar as the desired factual position is reversible. Beyond that, it is highly controversial whether or not such measures are admissible.

3.2.1 In order to secure the enforceability of monetary claims, preventive interim measures may be granted in two cases, presupposing either a subjective or an objective threat to the prospective enforcement.

3.2.2 First, preventive interim measures may be taken if it is probable that without the requested measure the respondent would impede or considerably exacerbate the enforcement of the claim 16 EA, s 379(2) no 1. , e.g. by damaging, destroying or relocating assets. The applicant does not need to prove that the respondent caused the threat by intent or negligence; a certification of the respondent’s carelessness in its own affairs or of a failure to take an action against a third party which it is legally obliged to take may be sufficient. In any event, the applicant is required to certify that the respondent will probably impede the enforcement of the claim. 

3.2.3 Secondly, the applicant may base its application on the fact that a judgment would have to be enforced in a state where enforcement is not guaranteed by European or international law. Accordingly, the applicant must make a credible case that the respondent will have no assets on Austrian territory by the time the decision can be enforced but for the interim measure ensuring enforcement against assets located in Austria. This means that the objective threat to the enforceability of monetary claims is limited to cases of an impending unpromising enforcement abroad.

3.2.4 All of the means available to secure monetary claims are listed exhaustively in section 379(3) of EA, comprising the following possible court orders: 

• the custody and administration of the respondent’s movable tangible property, including deposition in court;
• a prohibition on alienating or pledging the movable tangible property with the effect that any disposal in contravention of this prohibition would be invalid;
• a prohibition on disposing of a monetary claim, a claim for performance or for delivery of property, and at the same time a demand that the third party does not settle the debt, perform or deliver the property (“Drittverbot”);
• the administration of the respondent’s real estate; and/or
• a prohibition on encumbering and alienating the respondent’s real estate.

3.3.1 Preventive measures for non-monetary claims are widely used because – contrary to monetary claims – there are hardly any other means of securing the claim. With regards to monetary claims, there are not only specific, more rapid civil procedures 18 Order for payment procedure (“Mahnverfahren”, CPC, s 244 et seq. and s 448); European order for payment procedure according to the Regulation (EC) No 1896/2006; procedures for change disputes (CPC, S 555 et ceq.). , but also provisions securing the enforcement of judgements 19 EA, s 370 et seq. (“Exekution zur Sicherstellung”).  or allowing provisional enforceability to a certain extent.

3.3.2 The applicant seeking such preventive measures has to show credibly that there is a concrete, objective threat to the enforceability of a claim. In this respect all circumstances to the case are relevant, and there are no further specific requirements regarding the respondent’s behaviour (i.e. the cause of the threat is not limited to the conduct or attitude of the respondent but may result from all circumstances of the case.) Again, impending enforcement abroad may provide a reason for preventive measures.

3.3.3 Section 382 of EA provides for possible means to protect non-monetary claims. The listing is non-exhaustive and goes beyond the listing for monetary claims. In all events, the means are linked to the object to which the applicant’s claim refers. For instance, the court may authorise the applicant to retain the property of the respondent (“Retentionsarrest”), but may also order that the respondent take actions in order to preserve the property or prohibit him from taking adverse actions.

3.4.1 Preliminary taking of evidence is ruled by the Austrian Code of Civil Procedure 20 CPC, s 384 et seq. . These provisions are designed to secure the necessary evidence, contrary to interim measures relating to the claim itself. The court is allowed to take evidence even prior to the start of the main proceedings, if there are concerns regarding the loss of or difficulties regarding the use of evidence 21 CPC, s 384(1).  or if there is a relevant legal interest in obtaining a declaration of the current state of an object (i.e. its physical condition) 22 CPC, s 384(2). .

3.4.2 Pursuant to the prevailing legal opinion in Austria, interim measures to protect evidence can only be taken if the provisions mentioned above do not apply. But more recent legislation, like the Patent Act 23 Patent Act, s 151b. , the Copyright Act 24 Copyright Act, s 87c.  or the Trademark Act 25 Trademark Act, s 68g.  do provide interim measures to protect evidence in specific circumstances.

The existence of a claim

3.5.1 In all events, the applicant has to demonstrate credibly the existence of an underlying claim 26 EA, s 389(1) . The specific claim and all assertions made in this regard need to be indicated in a precise way 27 Cp. CPC, s 226 stating general requirements for the content of a claim. . If the request is filed at the same time as the lawsuit, a mere reference to the claim is sufficient.

The threat to the substantive claim

3.5.2 Recent case law has consistently held that it is necessary to demonstrate credibly actual circumstances indicating a threat to the underlying claim. The assertion of a theoretically existing risk of threat does not satisfy these requirements. 

3.5.3 As mentioned above (see sections 3.2 and 3.3), preventive measures for monetary claims presuppose either a subjective threat to the enforceability of the claim or impending difficulties in enforcement abroad. In contrast, in preventive measures for non-monetary claims, any kind of objective threat is sufficient.

3.5.4 Under Austrian law, the applicant is not required to assert a need for urgent action, even though it might nonetheless be advisable to do so, especially when seeking ex parte measures. The need for urgent action will usually be deducible from the circumstances indicating the specific threat to the claim.

Principle of proportionality 

3.5.5 When deciding which measure to take and to what extent, the court has to observe the principle of proportionality 28 EA, s 392, 399(1) no 1 and 402(4).  and thus may only grant measures that are necessary to achieve the aim of the respective provision. The court is limited to the mildest interim measure the applicant applied for. To give an example, the court may have to restrict an interim measure demanding a third party not to settle a debt to only part of the debt.

3.5.6 In this respect, interim measures will not be granted if there is any other reasonable way to avert the threat to the underlying claim.

Reversibility

3.5.7 As a basic principle, interim measures are not supposed to generate irreversible situations, so as to ensure that the initial situation can be restored in the event of a lost case. This rule applies to both preventive and regulatory measures. However, with regard to performance measures, its application is controversial. By way of example, it is open to question whether or not performance measures are admissible if only a payment of damages is possible.

Form of the request 

4.1.1 The application has to be submitted to the court either in writing or verbally with a written record being made 29 EA, s 402(4) in conjunction with s 53. . The right to verbally submit is reserved to applicants who are not represented by a lawyer. 

Content of the request 

4.1.2 The requirements for an application for interim measures include:

• the general requirements for procedural documents: the name of the court, a designation of the parties and if necessary, the signature of the lawyer acting for the applicant 30 CPC, s 75 et seq. ;
• the facts relevant to establishing jurisdiction;
• the requested measure and its duration 31 EA, s 389(1). ;
• the indication of the underlying claim (either asserted or one that has already been awarded) 32 EA, s 389 (1). ; and
• the facts on which the application is based, notably the specific threat to the underlying claim.

Enclosures of the request 

4.1.3 Supportive evidence needs either to be enclosed with the request or simply be cited in it. As the court may invite the applicant to submit the cited evidence 33 EA, s 389 (1). , it is in the applicant’s interest to immediately attach all relevant documents to the application in order to avoid prolonging the process.

4.2.1 After having received the request, the court examines the merits of the claim in issue. As the proceedings for taking evidence adhere to the principle of acceleration, they will not be extensive. It is within the discretion of the court to summon the respondent to a hearing 34 Cp. para 5.1. , although hearings are rare. The court may simply hear witnesses in order to get a better impression of their credibility. Such “hearings” are not public and are limited to the judge questioning the witness. The court may issue an invitation to submit evidence 35 EA, s 389 (1); Cp. para 4.1.3. , but may also immediately grant the measure on the basis of a plausible request. 36 3 Ob 217/09x.

4.2.2 If the application has deficiencies, the court will ask the applicant to remedy the application within a specified period of time 37 EA, s 54 (3). , whereas applications that do not comply with the legal requirements regarding the necessary content will be rejected 38 E.g. rejection because of the lack of precision regarding the asserted claim, decision of the Austrian Supreme Court, 18 September 1991, 1 Ob 27/91. .

Limitation of evidence 

4.3.1 The taking of evidence is limited to evidence kept at the disposal of the court (“parat”) 39 CPC, s 274.
 such as documents that can be produced easily (including written witness statements), video tapes, CDs or informants 40 Austrian Supreme Court, 6 July 2011, 7 Ob 86/11i. who are able to appear before the court. However, any application to hear a witness by means of mutual legal assistance or request for an expert’s report 41 Austrian Supreme Court, 23 September 1997, 4 Ob 251/97h.  is inadmissible.

4.3.2 The court is not required to obey the principle of immediacy strictly and is therefore not required to obtain the most direct and immediate impression of the events at issue. The court may base its decision on evidence resulting from other proceedings 42 Austrian Supreme Court, 28 September 2006, 4 Ob 144/06i. .

Standard of proof – credibility 

4.3.3 If the court so requires, the applicant has to demonstrate credibly that its claim is justified 43 EA, s 389(1). . The test applied by the court is a test of credibility rather than an in-depth assessment of the justification for the applicant’s claim. Nevertheless, the substantiation of the facts must be of such quality that, from the court’s point of view, they are more likely to be true than not true (meaning a greater than fifty percent chance that the claimed threat exists).

4.3.4 With regard to performance measures specifically, the court is obliged to test the credibility of the specific threat to the claim in a particularly stringent way.

5.1.1 Austrian courts of first instance are generally not required to hear the respondent prior to their decision 44 EA, s 402(4) in conjunction with s 3(2); EA s 397(1). . Only so far as civil  rights are concerned, the proceedings have to fulfill the requirements arising out of article 6 of the European Convention on Human Rights (ECHR) (“fair  trial”) and the respondent needs to be heard as long as this would not lead to a delay likely to defeat the purpose of the interim measure 45 Austrian Supreme Court, 5 October 2010, 17 Ob 11/10g; Austrian Supreme Court, 2 December 2010, 2 Ob 140/10t; Austrian Supreme Court, 1 Ob 156/10p; Austrian Supreme Court, 10 July 2012, 4 Ob 56/12g. .

5.1.2 However, if the respondent has not been heard prior to the court’s decision, it may raise an objection to the court’s decision (“Widerspruch”) 46 EA, s 397. , which can comprise legal or factual arguments 47 See section 8 below. . In short, through an objection the respondent would be treated as if it had been heard before the court decision was rendered. To avoid objections, courts usually serve the application on the respondent, who may reply within a short deadline set by the court (typically ranging between three days to two weeks). 

5.2.1 As mentioned in paragraphs 3.5.5 and 3.5.6 above, Austrian courts are required to apply the principle of proportionality. Consequently, courts have to observe the principle of proportionality when deciding which measure to order 48 See paragraphs 3.5.5. et seq. above. .

5.3.1 To protect the respondent the court may make the provisional measure conditional upon the payment of security by the applicant 49 EA, s 390. . The court is allowed to do so, if either the applicant does not succeed in evidencing sufficiently the threat of the underlying right or if it appears essential according to the circumstances, despite the fact that the applicant successfully evidenced the threat of the underlying right. It is not possible to obtain such security for certain limited types of interim measures, like interim measures in maintenance matters (sections 382(1) no. 8a and 382a of EA), in cases of domestic violence (section 382b of EA) or the violation of privacy (“Stalking”; section 382g of EA) 50 EA, s 390(4). .

5.3.2 The court has the discretion to fix the amount of the security that it sees fit. 

5.4.1 In the case of unjustified interim measures the respondent has the right to seek damages 51 EA, s 394. . The applicant has to pay such damages, if:

• its alleged claim has been finally rejected by the court;
• its request otherwise proves to be unjustified (e.g. if the objection of the respondent is successful); or
• it did not file the lawsuit or the request for the granting of an execution (“Exekutionsbewilligungsantrag”) within a certain period of time, if the court had set such a deadline.

5.4.2 The respondent can only benefit from this provision if the interim measure was not justified from the outset 52 Austrian Supreme Court, 11 December 2007, 17 Ob 28/07b. .

5.4.3 The court has the ability to fix the amount of compensation for damages at its own discretion.

5.4.4 A damages claim for unjustified interim measures has to be filed at the court that rendered the interim measure within three years from knowledge of the damage and the identity of the wrongdoer. 

6.1.1 The timing of the application does not generally affect the prerequisites for interim measures. It may however have an impact on jurisdiction (see section 2.1).

6.1.2 If an application is submitted before the main proceedings are brought, the court has to set a deadline for the applicant to file a lawsuit (typically three to six months). Within the period specified by the court, the applicant must prove that it filed the lawsuit. The court has to give it the opportunity to express its views and may eventually extend the period for justified reasons 53 EA, s 58(1). . In the absence of the filing of the substantive claim by the deadline set, the court has to set aside the ordered measure, either upon application or upon its own initiative 54 EA, s 392(2). .

6.1.3 The respondent has the right to seek damages on the basis of the expiry of the deadline (see section 5.4). The right to claim for compensation exists even if the action is upheld afterwards 55 EA, s 394(1). .

6.2.1 In practice, requests for interim relief are decided quickly, in very urgent cases potentially within hours. In urgent cases it is nevertheless advisable to notify any third parties involved, e.g. the bank in case of revocation of a bank guarantee.

6.2.2 The interim measures will remain in place for so long as is necessary to the relevant measures to be carried out; until the substantive proceedings are concluded; or as otherwise ordered by the Court. See further section 8.1 below.

7.1.1 The amount of court fees payable by the applicant depends upon the amount in dispute in the main claim 56 Court Fee Act, s 15(4).  and is based on a tariff. If the request for interim measures is filed at the same time as the lawsuit or in the course of pending proceedings, there are no (additional) court fees to pay 57 Court Fee Act, fee item 1, note 4. .

7.1.2 The basis for calculating the costs according to the Austrian tariff for lawyers is the amount in dispute 58 Austrian lawyers' tariff law, fee item 3 note 4. . If the application for interim measures and the statement of claims are combined, the fees for this (combined) submission increase by 25% 59 Austrian lawyers' tariff law, fee item 3 note 4. .

7.2.1 The costs of interim proceedings have to be advanced by the applicant 60 EA, s 393(1). . The court may only decide upon an obligation to reimburse the costs after the main proceedings have been completed.

7.2.2 Compensation for the costs of interim proceedings depends on the provisions of the law governing the main proceedings. If the law does not provide for reimbursement of costs with respect to the main proceedings, they cannot be awarded in relation to interim measures 61 EA, s 393(1). .

7.2.3 Under Austrian law, the “loser pays rule” applies. The applicant is entitled to recover the costs incurred to obtain an interim measure when prevailing in the main proceedings and if the interim measure was granted. In contrast, the respondent is entitled to compensation if the interim measure was not granted. If a request is partially admitted, the costs are allocated proportionally.

7.2.4 However, compensation for the costs of the proceedings is limited to (i) the court fees, (ii) the lawyer’s fees based on the Austrian tariff for lawyers and (iii) the costs for any expert’s opinion that has been obtained in advance or the costs for summoning a witness.

8.1.1 Pursuant to section 399(1) of EA, an interim measure may be modified or revoked if it has been performed too widely, circumstances have changed, the respondent pays security or if the applicant’s underlying claim has been paid, has been finally rejected or if there is a final decision finding that the underlying claim has already ceased to exist. According to prevailing legal opinion, there may be other reasons for the modification and revocation of an interim order, besides those which are expressly mentioned in section 399 (1) of EA. Thus, the provision may be applied by analogy if the specific need for protection ceased to exist after the court has granted the interim measure.

8.1.2 As a general rule, a request for modification or revocation has to be filed. However, in certain circumstances (e.g. if the court had set a deadline for a certain action of the applicant and the applicant missed the deadline) 62 EA, s 399(2).  the interim measure may also be revoked ex officio.

8.1.3 The request has to be filed at the court that ordered the interim measure. Unless the main proceedings are pending, any application for modification or revocation of the interim measure must be brought before the court of first instance. The applicant for the interim measure has to be heard in writing or orally before the court renders a decision 63 EA, s 399(2). . In general, a hearing is not required by law. However, due to article 6 ECHR, hearing the parties might be mandatory in some cases.

8.1.4 Each and every interim measure has a limited effective period. Nevertheless, the interim measure does not expire automatically after the end of this time period. Instead, a request for revocation has to be filed 64 Austrian Supreme Court, 4 August 2009, 9 Ob 32/09k; König, Einstweilige Verfügungen im Zivilverfahren4, 8/12; Rechberger/Oberhammer, Exekutionsrecht5 (2010) recital 533. .

Outline of the Austrian appellate system 

8.2.1 In Austria, the main remedies against a decision concerning interim measures are recourse (“Rekurs”) and objection (“Widerspruch”). Any party can file a recourse against a decision. Jurisdiction rests with the next highest court. On the other hand, the opportunity to file an objection is very limited. It can only be filed by the respondent and only if its right to be heard would otherwise be adversely affected. The court of first instance is competent to decide on an objection.

8.2.2 Remedy against a recourse is a second recourse (“Revisionsrekurs”) to be filed with the Austrian Supreme Court. The second recourse is limited in various ways.

Recourse 

8.2.3 A recourse can be filed against the decision of the court of first instance. The reasons for an appeal are limited to facts which should have already been taken into account by the court of first instance based on the documents in the court file (“Neuerungsverbot”). The appellate court is not allowed to review the consideration of evidence by the court of first instance, if the court of first instance has taken the evidence directly (e.g. testimony) 65 Austrian Supreme Court, 2 December 1993, 6 Ob 650/93; Austrian Supreme Court, 19 November 2008, 3 Ob 191/08x. .

8.2.4 The recourse has to be filed 14 days after service of the court order regarding the interim measure 66 EA, s 402(3). . A recourse suspends the validity but usually not the enforceability of the court order. However, on request the court may suspend the enforcement of an interim measure 67 EA, s 402(4) in conjunction with EA, s 78(1) and CCP, s 524(2). . Recourse proceedings are only in writing 68 EA, s 402(4) in conjunction with EA, s 78(1) and CCP, s 526(1). .

Second Recourse 

8.2.5 The second recourse is a remedy against the recourse and is directed to the Austrian Supreme Court. Such second recourse is only permitted if a legal question of substantial relevance exists 69 EA, s 402(4) in conjunction with EA, s 78(1) and CCP, s 528(1). . Furthermore, if the amount in dispute is below EUR 30,000 a second recourse may not be permitted and this depends on certain circumstances (e.g. the reason for second recourse). The Supreme Court itself has discretion to accept the case. 

8.2.6 The second recourse has to be filed 14 days after service of the appellate court’s decision 70 EA, s 402(3). . A second recourse suspends the validity, but usually not the enforceability of the decision of the appellate court. However, also in second recourse proceedings exceptions concerning the suspension of the enforceability may be granted.

Objection 

8.2.7 The respondent has the opportunity to file an objection against the decision 71 EA, s 397. , if it has not been heard in the proceedings. Through such an objection the respondent would be treated as if it had been heard before the court’s decision was rendered. Consequently, the respondent may raise legal and factual arguments as they stood at the time the decision was rendered.

8.2.8 An objection has to be filed within 14 days after service of the decision 72 EA, s 397(2). . An objection does not suspend the enforceability of the interim measure, and even if requested to do so the court is prohibited from granting a suspension 73 EA. s 397(3). . The court of first instance has jurisdiction. The court has to hold a hearing in order to suspend or to deal with the objection. The court has to examine whether or not the interim order was justified and meets the conditions laid down by the law 74 EA, s 398(1) .

8.2.9 A recourse may be filed against the decision rendered in the objection proceedings 75 EA art, 402(1); for recourse see paragraphs 8.2.3. et seq. above. .

Recourse and Objection 

8.2.10 The respondent has the opportunity to file a recourse and an objection simultaneously. If so, courts will decide on the recourse first, unless the respondent declares that it wishes for its objection to be dealt with first 76 Austrian Supreme Court, 28 April 1970, 4 Ob 319/70; Austrian Supreme Court, 26 February.2002, 1 Ob 225/01x. .

9.1.1 As a general rule, interim measures will be enforced ex officio which means that there is no need for a separate application. If necessary, the court can appoint a bailiff or request another court’s assistance. 

9.1.2 Execution is admissible only within a period of one month from the date on which notice was served on the defendant 77 EA, s 396. . This time limit is particularly relevant for measures that are conditional upon the payment of security. If the applicant fails to lodge the security within one month, the measure granted is invalid and execution prohibited. 

Enforcement of measures issued in Europe 

9.2.1 Within the scope of application of the Brussels I Regulation or the Lugano Convention, interim measures that have been granted by a Member State can be recognised and enforced in Austria 78 Interim measures constitute decisions within the meaning of the Brussels I Regulation, art 2. .

9.2.2 However, this does not apply for ex parte measures issued by another Member State. Enforcement is only admissible if the respondent had the right to express its view on the applicant’s allegations regarding the interim measure. The fact that the respondent may have set out its position in advance by filing a protective letter would not be sufficient.

Enforcement of measures issued outside Europe 

9.2.3 As most conventions on mutual recognition and enforcement do not comprise interim measures (at least as far as Austria is concerned and apart from matters relating to maintenance obligations), enforcement of foreign measures often fails because of the narrowly drawn requirements. 

9.2.4 However, according to Austrian case law, Austrian courts may grant interim measures even if the respondent is domiciled in a state where enforcement of the interim measure is not possible 79 Decision of the Austrian Supreme Court, 12 October 1988, Om 5/88 regarding a respondent domiciled in Liechtenstein; see also Austrian Supreme Court, 16 October 2001, 4 Ob 235/01i in matters of cease and desist obligations. . Overall it is advisable to file the request for interim relief directly in Austria or in a Member State of the Brussels I Regulation or the Lugano Convention. 

10.1.1 Under Austrian law, a party is permitted to apply to any competent state court for interim measures in spite of an existing arbitration agreement. This provision applies before and during arbitral proceedings and cannot be waived by the contracting parties. Therefore, the respondent cannot oppose the application on the basis that the court lacks jurisdiction because of an existing arbitration agreement 80 CPC, s 585; see also Rules of Arbitration and Conciliation of the International Arbitral Centre of the Austrian Federal Economic Chamber (Vienna Rules), art 33(5). .

10.1.2 Austrian courts cannot refuse interim measures in aid of arbitration if the arbitration has its seat outside Austria 81 CPC, s 577(2). .

10.2.1 Unless otherwise agreed, the arbitral tribunal may, at the request of a party, order provisional or protective measures against another party, as the arbitral tribunal may consider necessary in respect of the subject matter of the dispute, if otherwise the enforcement of the claim would be frustrated or considerably impeded or there is danger that irreparable damage will occur 82 CPC, s 593(1); Vienna Rules, s 22(1). .

10.2.2 Austrian law expressly prohibits ex parte measures in arbitration 83 CPC, s 593(1). . Interim relief granted by a tribunal would not be enforceable through the Austrian state courts if the party subjected to the measure has been denied the opportunity to be heard 84 CPC, s 593(4). .

10.3.1 Upon the application of a party, Austrian courts have the authority to enforce interim measures granted by a tribunal regardless of its seat. Austrian courts will enforce arbitral interim measures granted by tribunals seated in Austria, as well as such measures ordered by tribunals seated elsewhere, provided that the enforcement measure takes place in Austria, if the party against whom the interim measure has been ordered resides in Austria, or if the enforcement action should take place in Austria (e.g. if assets are located here) 85 CPC, s 593(3). .

10.3.2 However, Austrian courts are entitled to refuse enforcement of interim measures issued by tribunals seated abroad, if they suffer from a defect that, if they were an award, would justify their non-enforcement under an applicable enforcement treaty 86 CPC, s 593(3). .

CMS Reich-Rohrwig Hainz Rechtsanwälte GmbH 
Gauermanngasse 2 
1010 Vienna, Austria