Form of awards
1. Must an award take any particular form?
The award must be in writing in the language of the proceedings and be signed by the arbitrators. Unless the parties have agreed otherwise, only the majority of the arbitrators need to sign the award for it to be valid, provided the reason for any omitted signature is stated by one of the signing arbitrators.
The award must be dated with the date of its issuance and specify the place of arbitration. The award must be reasoned, unless the parties have agreed otherwise (see section 606 of the Code of Civil Procedure (CCP), which is based on article 31 of the UNCITRAL Model Law).
Procedural law for recourse against an award (other than applications for setting aside)
2. Are there provisions governing modification, clarification or correction of an award? Are there provisions governing retractation or revision of an award? Under what circumstances may an award be retracted or revised (for fraud or other reasons)? What are the time limits?
Within four weeks of receipt of the award, the parties can request the correction, interpretation and supplementation of the award (CCP, section 610). The parties may agree on a different period (eg, by reference to institutional rules).
An award cannot be retracted or revised; however, it may be set aside if it was based on certain criminal offences, such as procedural fraud. In those cases, the time limit is four weeks after the respective criminal conviction has become final and binding, and the plaintiff has become aware thereof.
3. May an award be appealed to or set aside by the courts? What are the differences between appeals and applications to set aside awards?
An award cannot be appealed. n law distinguishes between domestic (seat of arbitration in ) and foreign (seat of arbitration outside ) arbitral awards. A domestic award may be set aside. This is the only and exclusive recourse against a domestic award.
Setting aside of arbitral awards
4. Is there a time limit for applying for the setting-aside of an arbitral award?
The time limit to applying for the setting aside of an award is three months after receipt of the award. This time limit is absolute (ie, it cannot be extended and is considered ex officio by the court).
5. What kind of arbitral decision can be set aside in your jurisdiction? What are the criteria to distinguish between arbitral awards and procedural orders in your jurisdiction? Can courts set aside partial or interim awards?
Under n law, all awards, including partial and interim awards, which constitute a decision on the merits and finally dispose of (parts of) the claim can be subject to setting aside proceedings.
Awards by which the arbitral tribunal decides on its own jurisdiction may also be subject to setting aside proceedings. However, mere procedural orders cannot be subject to setting aside proceedings. There is no definition in the law that would support sufficient clarity in the distinction between arbitral awards and mere procedural orders. However, arbitral awards finally determine matters of substance in issue between the parties and have to comply with certain formal and material requirements contained in the applicable provision in the CCP, for example, being in writing, in the language of the arbitration procedure, containing a signature of the arbitrators, indicating date and place of the arbitration and to have a reasoning.
6. Which court has jurisdiction over an application for the setting aside of an arbitral award? Is there a specific court or chamber in place with specific sets of rules applicable to international arbitral awards?
A special senate at the n Supreme Court decides as first and last instance on applications for the setting aside of an award according to the relevant provisions contained in the CCP. There is no further appeal. Practice has shown that a well-reasoned decision will be rendered within six to eight months on average.
7. What documentation is required when applying for the setting aside of an arbitral award?
Together with the written application for setting aside the award – which should state the grounds relied upon – a copy of the arbitration agreement and the award must be submitted. The filing is done via the official electronic filing system.
8. If the required documentation is drafted in a language other than the official language of your jurisdiction, is it necessary to submit a translation with the application for the setting aside of an arbitral award? If yes, in what form must the translation be?
The official language before the n courts is German. Therefore, arbitral awards in another language have to be submitted together with a German translation certified by a court-sworn or officially appointed translator.
9. What are the other practical requirements relating to the setting aside of an arbitral award? Are there any limitations on the language and length of the submissions and of the documentation filed by the parties?
Representation by a lawyer admitted to practise in is obligatory. n courts require submissions to be made via the official electronic filing system. Upon filing, the court fees, which are calculated based on the amount in dispute, become due. The official language of the courts is German.
There are no limitations regarding the length of submissions or the number of exhibits filed; however, the n courts generally appreciate concise submissions.
10. What are the different steps of the proceedings?
The Supreme Court first undertakes a preliminary examination of formal and material requirements, including whether the application was filed within the statutory time limit. The requirements are contained in the CCP's section on proceedings before the courts of first instance in conjunction with the applicable general provisions. If these are met, the application will be served on the other party, which can submit a written reply within four weeks. The written exchange is followed by an oral hearing after which the decision will be rendered.
11. May an arbitral award be recognised or enforced pending the setting-aside proceedings in your jurisdiction? Do setting-aside proceedings have suspensive effect?
Setting-aside proceedings do not automatically trigger the suspension of the enforcement of an award; however, upon application of the award debtor, the enforcement court may suspend the proceedings while the setting-aside proceedings are pending. If the enforcement court continues proceedings, it may order the award creditor to post security.
12. What are the grounds on which an arbitral award may be set aside?
The grounds for setting aside an award are exhaustively listed in section 611(2) of the CCP:
- a valid arbitration agreement does not exist, or the arbitral tribunal has denied its jurisdiction despite the existence of a valid arbitration agreement, or a party was under an incapacity to conclude a valid arbitration agreement under the law governing its personal status;
- a party was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings, or was unable to present its case for other reasons;
- the award deals with a dispute not covered by the arbitration agreement, or contains decisions on matters beyond the scope of the arbitration agreement or the plea of the parties for legal protection;
- the composition or constitution of the arbitral tribunal was not in accordance with the n law or the agreement of the parties;
- the arbitral proceedings were conducted in a manner that conflicts with the fundamental values of the n legal system (procedural ordre public);
- the requirements according to which a court judgment is subject to an action for revision (ie if the award was based on a fraudulent action or forged document) are met;
- the subject matter of the dispute is not arbitrable under n law; and
- the arbitral award conflicts with the fundamental values of the n legal system (substantive ordre public).
13. When assessing the grounds for setting aside, may the judge conduct a full review and reconsider factual or legal findings from the arbitral tribunal in the award? Is the judge bound by the tribunal's findings? If not, what degree of deference will the judge give to the tribunal's findings?
The case law of the Supreme Court firmly establishes that there is no review of the merits of the case. This principle is strictly applied, and the Supreme Court has consistently refused to entertain a review of the merits of the award. However, the Supreme Court held that an unacceptable interpretation result that had an impact on the arbitral tribunal's decision could be viewed as a violation of substantive public policy.
14. Is it possible for an applicant in setting-aside proceedings to be considered to have waived its right to invoke a particular ground for setting aside? Under what conditions?
Under n law, parties can neither agree to expand the scope of the grounds for setting aside an award nor waive their right to invoke particular annulment grounds in advance. After having knowledge of the award, it is, however, possible to waive the right to invoke a ground with the exception of the grounds that must be observed ex officio.
15. What is the effect of the decision on the setting-aside application in your jurisdiction? What challenges or appeals are available?
If a domestic award is set aside, the award is null and void under n law. The decision will no longer have res judicata effect and may be retried. Regarding foreign awards, the effects depend on the applicable law and the international treaty governing its recognition and enforcement.
16. Will courts take into consideration decisions rendered in relation to the same arbitral award in other jurisdictions or give effect to them?
n courts generally do not enforce awards that have been set aside under the 1958 New York Convention. However, in accordance with article IX of the European Convention n, courts have recognised and enforced set-aside awards.
Procedural law for recognition and enforcement of arbitral awards
17. What is the applicable procedural law for recognition and enforcement of an arbitral award in your jurisdiction?
The relevant provisions pertaining to the recognition and enforcement of awards are contained in the CCP, the n Enforcement Act (EA), and the relevant international treaties, in particular the 1958 New York Convention.
18. Is your jurisdiction a party to treaties facilitating recognition and enforcement of arbitral awards (eg, the ICSID Convention or bilateral treaties)? (In particular, is your state a party to the 1958 New York Convention? If yes, what is the date of entry into force of the Convention? Was there any reservation made under article I(3) of the Convention?
In particular, has ratified the Geneva Convention on the Execution of Foreign Arbitral Awards 1927 (the Geneva Convention), the European Convention on International Commercial Arbitration 1961 (the European 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.
has ratified the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards without reservation (after withdrawing the reciprocity reservation in 1988). The Convention entered into force in on 31 July 1961.
has not signed the termination agreement of intra-EU bilateral investment treaties, which implements the Achmea decision rendered by the ECJ. However, has committed itself to terminate its bilateral intra-EU investment treaties.
Recognition proceedings
19. Is there a time limit for applying for the recognition and enforcement of an arbitral award?
n law does not contain procedural rules that impose time limits for applying for the recognition and enforcement of an award. It does, however, provide for a statute of limitations of 30 years to enforce a final court decision under civil law (see section 1479 of the n Civil Code). According to the n Supreme Court, the statute of limitation is governed by the law applicable to the obligation that was decided upon. Thus, n courts may apply statutes of limitation of foreign laws when enforcing awards.
20. Which court has jurisdiction over an application for recognition and enforcement of an arbitral award? Is there a specific court or chamber in place with specific sets of rules applicable to international arbitral awards?
The competent courts are the district courts at which the debtor has its seat, domicile or habitual residence, or at the place where the enforcement measure shall be implemented. There is no specific court or chamber with specific sets of rules for the recognition and enforcement of foreign awards.
21. What are the requirements for the court to have jurisdiction over an application for recognition and enforcement and for the application to be admissible?
The competent court is the district court that has jurisdiction at the seat, domicile or habitual residence of the award debtor, or at the place at which an enforcement measure shall be implemented (EA, section 409). Should jurisdiction be established at the place at which an enforcement measure shall be implemented, the relevant measure should be specified.
22. Are the recognition proceedings in your jurisdiction adversarial or ex parte? What are the different steps of the proceedings?
To serve as a title for enforcement, a domestic award must be confirmed as final, binding and enforceable by the sole arbitrator or presiding arbitrator.
The proceedings for declaration of recognition and enforceability of a foreign arbitral award are, in principle, conducted ex partein front of the competent n courts. It is a one-sided document-based procedure and the application for a declaration of enforceability is decided without a prior oral hearing and without hearing the opponent. In practice, award creditors combine this with the application for the actual enforcement measure which is also decided ex parte. The award debtor can appeal the declaration after it is rendered.
23. What documentation is required to obtain recognition?
The applicant shall submit the duly authenticated original award or a duly certified copy thereof to the competent district court together with the application to recognise and enforce the award.
According to the case law of the Supreme Court, this requirement is satisfied if the authenticity has been confirmed by an n authority or an authority of the country whose law governs the arbitration, or a representative of the administering arbitral institution if the rules of the institution expressly authorise the representative to do so.
Based on the more lenient provision of section 614(2) of the CCP (in conjunction with article VII(2) of the New York Convention), the original or a certified copy of the arbitration agreement must only be presented upon a request from the court.
24. If the required documentation is drafted in a language other than the official language of your jurisdiction, is it necessary to submit a translation with an application to obtain recognition? If yes, in what form must the translation be?
The official language before n courts is German. Accordingly, documents in other languages must be translated into German. n courts require the entire award to be translated.
The translation must be provided by an official or sworn translator, or be certified by a diplomatic or consular agent. In , translators who are listed as court-sworn translators are deemed to be official or sworn translators under the New York Convention.
Regarding documents other than the award, n courts tend to be more lenient and may also accept translations from a translator who is not an official or sworn translator. Nevertheless, it is recommended to use an 'official or sworn translator' for the translation as well.
25. What are the other practical requirements relating to recognition and enforcement? Are there any limitations on the language and length of the submissions and of the documentation filed by the parties?
An application for declaration of recognition and enforceability does not trigger court fees.
Regarding applications for actual enforcement measures, the court fees are calculated based on the amount to be recovered. Often the award creditor is also asked to advance the costs of actual enforcement measures (eg, obtaining an appraisal of the value of real estate to be auctioned or the fees of an administrator who receives a percentage of the successfully recovered amounts).
26. Do courts recognise and enforce partial or interim awards?
All arbitral awards that are final and binding are generally enforceable under n law. This includes partial awards (disposing of part of the main claim), final awards, additional awards and awards granting specific performance.
Interim measures issued by an arbitral tribunal are enforceable under n law, provided that:
- 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 enforcement.
However, only state courts can enforce interim measures issued by an arbitral tribunal by means of enforcement orders. The courts may also enforce interim measures that provide for a means of security unknown to domestic law. In those cases, the court can issue an order that comes close to the original measure ordered by the tribunal, Where this is not possible, enforcement of the requested measure will be denied.
27. What are the grounds on which an arbitral award may be refused recognition? Are the grounds applied by the courts different from the ones provided under article V of the New York Convention?
The general approach of the courts towards the recognition and enforcement of arbitral awards is pragmatic, and the exhaustively listed grounds upon which recognition can be refused essentially correspond to the reasons listed in article V of the New York Convention. The grounds include invalidity or non-existence of an arbitration agreement, incapacity to conclude arbitration agreements, improper notice of arbitrator appointment, inability to present the case, matters falling outside the scope of the arbitration agreement, improper constitution of the arbitral tribunal, non-binding or set aside awards, non-arbitrability and a violation of public policy. An award debtor opposing enforcement bears the burden of proof for the grounds it relies upon.
Regarding foreign awards, international conventions contain the relevant provisions. These are largely mirrored in the provisions applicable to domestic awards.
28. When assessing the grounds for refusing recognition, may the recognition judge conduct a full review and reconsider factual or legal findings from the arbitral tribunal in the award? Is the judge bound by the tribunal's findings? If not, what degree of deference will the judge give to the tribunal's findings?
There is no review of the merits. Any review is only permissible within narrow limits that may be relevant to establish whether or not a specific ground for refusal is given. Within this scope, the court is not bound by the arbitral tribunal's findings. It means that otherwise decisions of the arbitral tribunal are binding. The Supreme Court draws a line when a result that affected the arbitral tribunal's decision could be viewed as a violation of substantive public policy.
29. Is it possible for a party to be considered to have waived its right to invoke a particular ground for refusing recognition of an arbitral award?
The grounds that must be exercised ex officio (New York Convention, article V(2)) cannot be waived. Other grounds (New York Convention, article V(1)) can only be waived after the waiving party becomes aware of the facts allowing it to rely on those grounds and nonetheless consciously waives those rights. None of the grounds can be waived in advance.
30. What is the effect of a decision recognising an arbitral award in your jurisdiction?
The main effect of a decision recognising and declaring enforceable a foreign award is that the foreign award would be considered equivalent to a domestic award, which in turn is considered equivalent to a domestic judgment.
The decision of the court can be appealed within four weeks of the date the decision was served on the award debtor or within eight weeks if the award debtor has its seat or domicile abroad.
Application for actual enforcement proceedings (ie, the implementation of enforcement measures) can be made promptly; however, at the initial stage, the courts will only effect measures securing assets but will not realise any assets until the decision on recognition and enforcement is final and binding.
Moreover, the award debtor may also appeal the implementation of enforcement measures and may, in this context, also request the stay of any enforcement measures.
31. What challenges are available against a decision refusing recognition in your jurisdiction?
The award creditor has a right to appeal against the decision within four weeks of the decision being served. The appeal decision itself can be appealed to the n Supreme Court.
32. What are the effects of annulment proceedings at the seat of the arbitration on recognition or enforcement proceedings in your jurisdiction?
If an award is subject to setting-aside proceedings, the court may stay the recognition or enforcement proceedings upon application of the award debtor until a decision in the setting-aside proceeding has been rendered.
When deciding upon adjournment, the court has to consider the chances of success of the set-aside proceedings. The general trend shows that courts are cautious to continue enforcement proceedings if the award is subject to setting-aside proceedings.
33. If the courts adjourn the recognition or enforcement proceedings pending annulment proceedings, will the defendant to the recognition or enforcement proceedings be ordered to post security?
Prior to granting a stay of the recognition or enforcement proceedings and upon request of the award creditor, the courts may order the award debtor to post security.
Should the recognition or enforcement proceedings not be stayed and, in particular, if enforcement measures continue, the court may, upon request of the award debtor, order the award creditor to post security.
The courts determine the amount of the security at their discretion.
34. Is it possible to obtain the recognition and enforcement of an award that has been fully or partly set aside at the seat of the arbitration? If an arbitral award is set aside after the decision recognising the award has been issued, what challenges are available?
In general, n courts will not grant the recognition and enforcement of an award that has been fully or partly set aside at the seat of the arbitration; however, where the European Convention is applicable, the successful setting aside of an arbitral award in the country of origin owing to the violation of public policy grounds is not a ground for refusal of enforcement. In those cases, the award must also be incompatible with n public policy for enforcement to be refused in (OGH 3 Ob 115/95).
If an award is successfully set aside after a decision declaring it recognised and enforceable, the award debtor can apply to the court of first instance to lift or amend this decision (EA, section 414).
Service
35. What is the procedure for service of extrajudicial and judicial documents to a defendant in your jurisdiction?
Service of extrajudicial documents, such as demand letters or legal notices, is typically effected by courier or registered mail so that the document is delivered to the other party in person and proof of service can be provided.
Service of judicial documents within is handled by the courts. Claims and initial applications are generally effected by means of postal service using registered mail. Afterwards, the e-service through the electronic court filing service is applied.
In , the official court language is German. Therefore, also judicial documents are in German, a translation of them is not required for domestic service.
36. What is the procedure for service of extrajudicial and judicial documents to a defendant outside your jurisdiction? Is it necessary to serve these documents together with a translation in the language of this jurisdiction? Is your jurisdiction a party to the 1965 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Hague Service Convention)? Is your jurisdiction a party to other treaties on the same subject matter? When is a document considered to be served to the opposite party?
Between EU member states, the service of documents is primarily governed by the Recast Service Regulation (EU) 2020/1784. The Regulation provides for a right to refuse to accept the document to be served if the document is not written in or accompanied by a translation in either a language the addressee understands or an official language of the jurisdiction where the service is to be effected.
Regarding the service to third states, the 1965 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Hague Service Convention 1965) applies to which is a member.
Identification of assets
37. Are there any databases or publicly available registers allowing the identification of an award debtor's assets within your jurisdiction? Are there any databases or publicly available registers providing information on award debtors' interests in other companies?
In , there are several public registers that may serve identifying the assets of the award debtor:
- the Land Register;
- the Company Register;
- the Tradespersons Register;
- the Insolvency Register;
- the Trademark and Patent Register; and
- the Enforcement Register.
Additionally, the Association for Credit Protection maintains a database with information on companies and individuals.
38. Are there any proceedings allowing for the disclosure of information about an award debtor within your jurisdiction?
Asset disclosure orders are limited under n law; however, they are available in enforcement proceedings. Upon application of the creditor, the court will order third-party debtors, social security agencies and the debtor to disclose specific information.
In enforcement proceedings aimed at seizing monies in n bank accounts held by the debtor, it suffices to name the bank and request the court to order the bank to disclose any accounts. By law, n banks must comply with this information request and are liable for any incorrect information.
Enforcement proceedings for attachment of earnings may be initiated even if the identity of the debtor's employer is unknown. Upon application of the creditor, the court will request this information from the social security agencies, which must provide the information.
Should a request to the social security agencies not show any regular income, or if no movable assets of value are found, the debtor can be ordered by the court to provide an inventory disclosing all assets (EA, section 47 et seq). If the debtor refuses to draw up an inventory of assets, the court may impose up to six months' imprisonment. Incorrect disclosures are sanctioned by criminal law.
Enforcement proceedings
39. What kinds of assets can be attached within your jurisdiction?
Movable, immovable and intangible assets can all be attached or seized. Typically, assets such as bank accounts, real property, personal property, wages and business assets may be subject to attachment or seizure.
40. Are interim measures against assets available in your jurisdiction? Is it possible to apply for interim measures under an arbitral award before requesting recognition? Under what conditions?
Prior to a court decision, freezing orders and injunctions are available as 'interim measures' (section 378 et seq EA). Moreover, as is a member state of the EU, its courts may issue a European Account Preservation Order (based on Regulation (EU) No 655/2014 of the European Parliament and of the Council of 15 May 2014) to freeze bank accounts within the EU. Interim measures can be issued and enforced as long as the proceeding is pending. However, they are also possible during the main proceedings (and the execution proceedings).
Under n law, also arbitral tribunals may order interim measures, albeit not ex parte.
41. What is the procedure for obtaining interim measures against assets in your jurisdiction?
In general, if the claim is already subject to ongoing main proceedings, the court competent for the main proceedings also has jurisdiction over requests for interim relief. In other cases, the jurisdiction lies with the competent district court at the opposing party's domicile, or if no n domicile is available, at the location of the asset that is subject to the interim injunction, at the place where the act of enforcement will take place, or – in cases of garnishment orders – at the third party's domicile.
In many cases, n courts will decide on an application for interim relief within a few days. In more complex cases, it may take a week or two until a decision is rendered. Upon application, the court may issue its decision ex parte upon request of the applicant if otherwise the relief sought could be frustrated.
42. What is the procedure for implementing interim measures against assets in your jurisdiction?
The procedure for interim measures against immovable property is not different opposed to interim measures targeting other types of assets. The means of security in the case of immovable property would under normal circumstances be a court order prohibiting the sale, encumbrance or pledge of real estate or rights registered in a public register.
The procedure for interim measures against movable property is not different opposed to interim measures targeting other types of assets. There are different means of security in case for movable properties, such as putting the asset in the custody of the court.
Interim measures are also available to secure non-monetary claims, such as the performance of specific acts, and obligations to cease and desist. For such claims, it suffices to make plausible to the court 'objective endangerment', such as imminent violence or irreversible harm.
43. What is the procedure for requesting attachment against assets in your jurisdiction? Who are the stakeholders in the process?
Austrian enforcement proceedings are bifurcated into two steps:
- authorisation proceedings; and
- the actual enforcement.
Both fall within the competence of the enforcement court. The execution is approved at the request of the creditor. Unless otherwise ordered, a decision on the application for approval of execution is made without a prior oral hearing and without hearing the opponent.
The prerequisite for enforcement is an enforceable title, such as the arbitral award which has been formally confirmed as enforceable (usually by means of an official stamp). The actual enforcement is performed by a court bailiff.
44. What is the procedure for implementing attachment orders against assets in your jurisdiction?
Against immovable property, there are different enforcement measures available: Establishment of lien (section 88 et seq EA): This measure does not directly lead to the satisfaction of the claim of the enforcing creditor but merely secures the subsequent satisfaction of the enforceable claim in the rank of incorporation as entered into the Land Registry.
Foreclosure (section 133 et seq EA): This measure leads to the auction of real estate of the debtor by the court. The order of the court will promptly be entered into the Land Register, thus barring any subsequent transactions that would affect the property.
Administration (section 97 et seq EA): The measure of administration aims to satisfy the claim from the proceeds of the administration of a property (such as rental income) or a part of a property of the debtor. The measure will be recorded in the Land Registry and restricts certain rights of the debtor.
Against movable property, attachment and auction (section 249 et seq EA) is available: This measure leads to the court-ordered seizure of property of the debtor, followed by a public auction (in a licensed auction house). The objects are seized by means of describing them and recording them in a list. The auction procedure is similar to that described above regarding immovable property.
Surrender of specific property (section 346 et seq EA): This measure is directed against a specific movable object. The officer of the court may seize the precisely defined movable object and hand it over to the creditor against a receipt.
Attachment of monetary claims against third parties: Those claims in most cases relate to bank holding accounts of the debtor and attachment of earnings (salary or wages). However, the debtor must be left with an amount that is equivalent to the minimum subsistence level (defined by law).
Against intangible property, attachment and collection (section 289 et seq EA) is available: The measure consists of two orders: one forbidding the third-party debtor to make payment to the debtor (prohibition of payment) and another forbidding the debtor from disposing of its claim against the third-party debtor (prohibition of disposal). The collection (and then transfer to the creditor) is generally done by bank transfer.
Attachment and exploitation (section 327 et seq EA): As a first step, this measure entails attachment of the right and an order forbidding the debtor from disposing of this right. The actual measures that shall allow the creditor to recover its monies depend on the right. For example, the court may order a patent to be subject to receivership (allowing the creditor to collect any licence fees) or that the patent shall be subject to administration, and the court may (ultimately) also order sale of the patent.
45. Are there specific rules applicable to the attachments against sums in bank accounts or other assets deposited with banks?
In enforcement proceedings aimed at seizing monies in n bank accounts held by the debtor, it suffices to name the bank and request the court to order the bank to disclose any accounts. n banks must comply with this information request and are liable for any incorrect information.
Moreover, as is a member state of the EU, its courts may issue a European Account Preservation Order (based on Regulation (EU) No 655/2014 of the European Parliament and of the Council of 15 May 2014) to freeze bank accounts within the EU.
46. May a creditor of an award rendered against a private debtor attach assets held by another person on the grounds of piercing the corporate veil or alter ego? What are the criteria, and how may a party demonstrate that they are met?
The principle of strict separation of legal entities applies in . Therefore, 'piercing the corporate veil' is only possible under very limited circumstances in .
These, for example, include cases of significant undercapitalisation of the company. A liability further requires culpable and illegal behaviour.
Recognition and enforcement against foreign states
47. Are there any rules in your jurisdiction that specifically govern recognition and enforcement of arbitral awards against foreign states?
n law does not provide for specific rules relating to the recognition and enforcement of awards against foreign states. However, customary international law, which applies in , addresses aspects of enforcement against states in the context of sovereign immunity.
48. What is the procedure for service of extrajudicial and judicial documents to a foreign state?
The form of service of documents on a foreign state depends on whether the underlying dispute pertains to a sovereign act of state (acta iure imperii) or a commercial undertaking of the state (acta iure gestionis).
In the first case, the service of documents must be effected via the Federal Ministry for European and International Affairs. In all other cases, the common provisions on service apply.
49. May a foreign state invoke sovereign immunity (immunity from jurisdiction) to object to the recognition or enforcement of arbitral awards?
At the enforcement stage, a state or state entity may raise the defence of sovereign immunity. Importantly, a waiver of immunity made in the underlying proceedings does not automatically extend to the enforcement. However, n courts will only consider sovereign immunity in connection with sovereign acts, but not if the state or state entity acted in a private capacity. The burden of proof for these circumstances lies with the state or state entity invoking immunity.
50. May award creditors apply interim measures against assets owned by a sovereign state?
Award creditors may apply for interim measures against assets owned by a foreign state located in . Under n law, interim measures can be ordered in relation to assets located in , regardless of the ownership of the assets. The court must be satisfied that the applicant has a valid claim and that the interim measures are necessary to protect the applicant's rights.
While foreign states may raise sovereign immunity privilege, this does not extend to assets that are being used for commercial purposes.
51. Are assets belonging to a foreign state immune from enforcement in your jurisdiction?
Whether assets belonging to a foreign state are immune from enforcement depends on the purpose and use of the assets. If the assets do not serve sovereign purposes but are used for purely commercial purposes, they can be subject to enforcement proceedings; however, the standard is strict, and the burden of proof lies with the applicant.
52. Is it possible for a foreign state to waive immunity from enforcement in your jurisdiction? What are the requirements of waiver?
It is possible for a foreign state to waive immunity from enforcement. The waiver of immunity must be through a clear and unambiguous express statement.
A waiver of immunity can be made in a treaty, a statute, or a judicial or arbitral proceeding. It can also be made on a case-by-case basis. In addition, the waiver must be made voluntarily and without duress.
53. Is it possible for a creditor of an award rendered against a foreign state to attach the assets held by an alter ego of the foreign state within your jurisdiction?
It is possible to attach assets held by a company fully owned by a foreign state. The immunity of a foreign state applies to its sovereign acts but does not extend to the commercial activities of its state‑owned companies. If the assets are being used for commercial purposes and are not part of the foreign state's sovereign functions, they may be subject to interim measures; however, the assessment is made on a case-by-case basis and depends on the specific circumstances of the case and the nature of the assets in question.
54. May property belonging to persons subject to national or international sanctions be attached? Under what conditions? Is there a specific procedure?
In light of the general purpose of the sanction regime, the possibility to attach assets that have been frozen under a sanction regime is limited. The ECJ ruled in 2021 that EU regulations must be interpreted as precluding "protective measures" against funds and economic resources frozen due to sanctions without prior authorisation from a competent national authority, even if the attachment does not remove the assets from the debtor's possession.
Originally published by GAR.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.