Pitkowitz & Partners > Vienna, Austria > Firm Profile
Pitkowitz & Partners Offices
Pitkowitz & Partners > The Legal 500 RankingsPitkowitz & Partners has seen a sharp increase in terms of team size, mandates and client instructions as a result of its ‘unrivalled expertise and dedication to the cause‘. Under the guidance of joint practice heads Nikolaus Pitkowitz and Roxanne de Jesus, the group is frequently involved in international arbitration proceedings spanning multiple jurisdictions and a breadth of industries, including construction, energy, real estate, technology, and media. Pitkowitz was elected President of VIAC in 2022. Senior associate Peter Machherndl joined from CMS Reich-Rohrwig Hainz Rechtsanwälte GmbH in September 2022.
Nikolaus Pitkowitz; Roxanne de Jesus
Other key lawyers:
‘Stellar legal know-how, combined with sensitivity for the commercial background of transactions.’
‘They all are very active in international arbitration, and very diverse, too. Still, their approach is down to earth, and they really understand their clients.’
‘Unrivalled expertise and dedication to the cause.’
‘The brilliant and unsurpassed Nikolaus Pitkowitz runs the firm with a quietly assured tone.’
‘Roxanne de Jesus leaves no stone unturned. You would want her on your side not the other!’
‘Simply a first class outfit.’
‘An outstanding team, dedicated to putting its client in the driving seat. They are outstandingly well prepared and totally committed. They have a detailed understanding of the procedural requirements of an international arbitration as well as the underlying merits of their case.’
‘The team is the most diverse of any of the Austrian firms. Nikolaus Pitkowitz has always been a visionary in that regard and has tried to internationalise Austrian arbitration practice.’
Calunius Capital LLP.
Integral-Montage Anlagen- und Rohrtechnik GmbH
Kinve Solar Power
Facebook Ireland Limited
- Representing Integral-Montage Anlagen- und Rohrtechnik Gesellschaft, a major Austrian pipeline and plant construction company, in a London-seated ICC arbitration pertaining to the construction of a power plant.
- Representing Kinve Solar Power, a multi-national solar energy corporation, in multi-jurisdictional litigation and arbitrations proceedings in Austria, Bulgaria, Germany, China and Italy.
- Representing Alperton and its shareholders in an ICC arbitration with an amount in dispute in excess of €400m.
Nikolaus Pitkowitz; Roxanne de Jesus
‘This is a great and diverse team under the leadership of Nikolaus Pitkowitz, who is a really good and sensible lawyer, and a charming person.’
‘Nikolaus Pitkowitz is a great team leader, a role model to younger colleagues and also shows a great deal of entrepreneurship. He is a really good lawyer.’
‘Nikolaus Pitkowitz loves details and is a reliable source of knowledge. A very gifted organiser of various events. Always well prepared.’
‘Simply the best disputes practice in Austria, bar none. Unrivalled expertise and dedication to the cause.’
‘A team that is highly experienced in dealing with heavy and complex commercial litigation. The team is very well led and works very well and smoothly. They are highly knowledgeable and will leave no stone unturned in pursuing their client’s best interests whilst also exercising careful judgment as to how best to present their client’s case. A top team.’
‘I would highly recommend Nikolaus Pitkowitz for his extensive experience as a commercial litigator. I would also highly recommend Roxanne de Jesus who is a very bright and capable lawyer. She is a master of detail which puts her client in the driving seat.’
Calunius Capital LLP.
Integral-Montage Anlagen- und Rohrtechnik GmbH
German manufacturer of plastic composites
Kinve Solar Power
Facebook Ireland Limited
- Advising Calunius Capital, a third party funder, on the financing of a class-action on behalf of thousands of Austrian claimants relating to the Volkswagen emissions scandal.
- Representing Alperton and its shareholders in a cross-border dispute regarding (i) the client’s shares in companies owning drill ships, (ii) reorganisation proceedings in Brazil, (iii) ancillary corporate disputes in the BVI and (iv) Chapter XV proceedings in New York.
Austria > Real estate Tier 5The team at Pitkowitz & Partners lauded by clients for its expertise in development projects concerning hotel, residential and office buildings, but is also strong in transactional matters. Practice head Martin Foerster co-founded the firm in 2021 after leaving GRAF ISOLA, and has a strong track record of assisting with real estate transactions from the buyer and the seller side.
‘The team has many years of experience working together on complex real estate projects.’
‘Martin Foerster is very good at breaking down complex issues to their core and finding workable solutions. A very sharp mind!’
‘We are working together with Martin Foerster for some years and are impressed by his clear and precise advice.’
Regus / IWG
Wiener Standort Entwicklung GmbH
- Advising McArthurGlen Group on all leasing matters relating to its designer outlet centres in Salzburg and Parndorf.
- Assisted a subsidiary of Wien Holding with the setting up of the new city quarter Viola Park.
- Assisting Fleissner Group with the development of three business hotels in major Austrian cities, including advising on operator agreements with international hotel chains and forward purchase agreements with investors.
Pitkowitz & Partners > Firm Profile
Pitkowitz & Partners, based in Vienna, is a leading commercial law firm with a strong international focus, providing legal advise at the highest level. The focus of the firm is on international arbitration and complex litigation as well as on real estate and construction law. Pitkowitz & Partners consists of a total staff of 25, including 14 lawyers. The team of the firm can rely on more than 120 years of professional experience. The client base of Pitkowitz & Partners is as diverse as the industries in which their clients operate. Whether market leader or market niche – Pitkowitz & Partners writes success stories in the most complex and largest cases on a national and international level.
Main Areas of Practice
Dispute Resolution: Pitkowitz & Partners forms one of the largest dispute resolution teams nationwide. The team has for years been recognised as one of the leading disputes practices in Austria. With its involvement in cases spanning across the globe and through a myriad of industries, including amongst others construction, energy, real estate, technology, and media, the firm has acclaimed a stellar international reputation and is ranked among the top 100 arbitration practices worldwide by GAR 100.
The Dispute Resolution practice group, led by two partners, looks back on decades of experience in the areas of arbitration, litigation and mediation. Their lawyers regularly conduct arbitration proceedings in Europe, the USA and Asia under all leading institutional rules. The team was advising as counsel, among others, in the largest arbitration ever pending in Austria, as well as in the largest class action lawsuit ever pending in Austria. The clientele includes leading companies in the fields of production, technology, TMT, energy, and plant engineering.
Partners: Nikolaus Pitkowitz, Roxanne de Jesus
Real Estate: The real estate and construction law practice group headed by Martin Foerster is one of the leading groups in this field. The dedicated team advises national as well as international clients comprehensively in all areas of Real Estate and Construction Law. The special focus of the real estate team includes drawing up and negotiating commercial real estate transactions (from individual properties to real estate portfolios), rental and lease agreements in the areas of office, retail and hospitality, development contracts, public permits as well as representation in public and commercial disputes. Austrian and international funds, investors and property developers are part of the long-standing client base at Pitkowitz & Partners.
Partner: Martin Foerster
|Roxanne De Jesus||Partner||View Profile|
|Dr Martin Foerster||Founding Partner||View Profile|
|Tanja Kysela||Attorney-at-Law||View Profile|
|Peter Machherndl||Attorney-at-Law||View Profile|
|Maximilian Albert Müller||Attorney-at-Law||View Profile|
|Dr Nikolaus Pitkowitz||Founding Partner||View Profile|
|Sheila Schwaighofer||Attorney-at-Law||View Profile|
Recognition and Enforcement of Foreign Arbitral Awards in Austria
In the realm of international dispute resolution, a profoundly significant but often underestimated stage is the enforcement process. This article provides practical insights for legal professionals and stakeholders to shed light on the principles and intricacies of the recognition and enforcement process of foreign arbitral awards in Austria.
1. Introduction and Applicable Laws
Austrian enforcement law differentiates between foreign and domestic arbitral awards. An arbitral award is considered foreign if the seat of the arbitration is located outside of Austria.
In principle, the Austrian Enforcement Act (in the following referred to as “AEA“) governs the entire enforcement proceedings. However, to the extent that international treaties or laws of the European Union apply, these take precedence over the respective provisions of the AEA.
Austria has ratified several treaties on mutual recognition and enforcement of arbitral awards, the most significant being the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (in the following referred to as “NYC“). In addition, other bi‑ or multilateral treaties may serve as a basis for enforcement applications in Austria. Unless stipulated otherwise (in the relevant treaties), parties may rely on several applicable treaties when filing an enforcement application in order to enhance their chances of success. Due to its practical significance, however, this article will primarily focus on the enforcement requirements contained in the NYC.
While domestic arbitral awards are directly enforceable in Austria, foreign arbitral awards must undergo a two‑step procedure:
- foreign arbitral awards need to be declared enforceable (Vollstreckbarerklärung) to obtain the status of an enforceable title in Austria, and
- the actual enforcement of the arbitral award must be granted (Exekutionsbewilligung).
Both steps can be applied for in one and enforcement courts can rule on these jointly.
2. Application for a Declaration of Enforceability
Parties seeking enforcement of foreign arbitral awards need to file an application for obtaining a declaration of enforceability. While the NYC explicitly refers to “recognition and enforcement“, Austrian law foresees no special recognition procedure, i.e., foreign arbitral awards are typically recognized automatically without a separate application or procedure. Only in cases where an objection is raised by the opposing party, the grounds for refusing recognition (and enforcement) under Art V NYC are examined (see Point 3. below).
Together with the application, parties seeking enforcement need to submit the duly authenticated original of the foreign arbitral award or a duly certified copy thereof (Art IV(1)(a) NYC). The required authentication can be issued by an Austrian authority (where the enforcement shall take place) or the country where the arbitration was seated. However, the Austrian Supreme Court recommends to always obtain an authentication from an Austrian authority (e.g., from an Austrian notary or an Austrian consular or diplomatic representative) in order to avoid the risk that the evidential value of the document authenticated abroad is questioned.
Alternatively, various arbitration rules (such as the Vienna Rules 2021) stipulate that arbitral awards may be authenticated by an official of the arbitration institution, e.g., by the secretary general. Austrian case law considers such an authentication to be sufficient if the applicable arbitration rules provide for such an authentication possibility.
If the foreign arbitral award is not issued in German language, the Austrian enforcement court may require a translation of the entire award (including any authentication thereof) into German language by a court sworn translator (Art IV(2) NYC). While it is not required that such a translator is certified in Austria (allgemein beeideter und gerichtlich zertifizierter Dolmetscher), it is generally recommendable to choose an Austrian court sworn translator. This is because otherwise, the party seeking enforcement would need to provide proof that the translator has been appointed by a court of his or her country of residence (and such an appointment must also be certified).
When seeking enforcement of a foreign arbitral award in Austria, it is not necessary to submit the arbitration agreement (as an original or certified copy) except if explicitly requested by the enforcement court (Section 614(2) Austrian Code of Civil Procedure). This is generally only the case if the enforcement court has doubts as to the arbitration agreement’s existence.
Art IV NYC conclusively stipulates the necessary evidence to be provided by parties seeking enforcement of foreign arbitral awards. However, other bi‑ or multilateral treaties on which enforcement applications may be based can foresee further or different requirements (e.g., provision of a certificate confirming the validity and enforceability of the arbitral award issued by the competent court at the seat of the arbitration).
3. Grounds for Refusing Recognition and Enforcement
Foreign arbitral awards are to be recognized and declared enforceable if there are no grounds for refusal. While any applicable bi‑ and multilateral treaties on recognition and enforcement of foreign arbitral awards generally prevail over the provisions of the AEA, it is worth noting that Section 408 AEA mentions the following grounds for refusal: (i) when the respondent did not have the possibility to participate in the arbitration proceedings, (ii) when the enforcement concerns an act which would be unlawful or unenforceable under Austrian law, or (iii) when Austrian public policy would be violated.
The practically most important grounds for refusal of recognition and enforcement are contained in Art V NYC. These can be divided into grounds that need to be invoked and proven by the party against which enforcement is sought on the one hand, and those that may be considered ex officio by the enforcement court on the other hand. The latter concerns cases where the subject‑matter of the dispute is not arbitrable in Austria and public policy violations. In respect to public policy, the Austrian Supreme Court generally takes a restrictive approach by considering only the fundamental principles of Austrian law.
4. Enforcement Procedure, Duration and Costs
The enforcement proceedings need to be initiated before the district court (Bezirksgericht) where the party against which enforcement is sought has its registered seat or where the respective assets are located. The district courts decide on applications for obtaining a declaration of enforceability and a grant of the actual enforcement without hearing the opposing party (Sections 54 and 410 AEA). In general, the first instance decision can be obtained rather quickly (usually within two to four weeks) provided that all relevant documents are submitted.
The first instance decision can be appealed against before the competent regional court (Landesgericht) within four weeks. In the appeal proceedings, parties against which enforcement is sought have the right to be heard and may also invoke grounds for refusal of recognition and enforcement of the foreign arbitral award (Art V NYC). In case a party has its registered seat abroad and the appeal proceedings represent the first possibility for that party to participate in the enforcement proceedings, the four‑week appeal period doubles for that party. As long as there is no final and binding decision on the appeal, actions aiming to liquidate the assets of the debtor cannot be taken (whereas protective measures, such as attachments, may still be pursued; Section 412(2) AEA).
Typically, appeal decisions are issued within six to twelve months. Under certain (extraordinary) conditions, the appeal decision may be subject to a further appeal to the Austrian Supreme Court (acting as the third and last instance). The Austrian Supreme Court usually decides within three to six months.
Enforcement courts have discretion to stay the enforcement proceedings in case the foreign arbitral award is subject to pending set aside proceedings and the debtor has appealed the decision declaring the arbitral award enforceable (Section 411(5) AEA). In this respect, enforcement courts primarily take into account the chances of the foreign arbitral award actually being set aside as this may constitute a ground for refusing recognition and enforcement (Art V(1)(e) NYC).
In case the enforcement proceedings are stayed until a final decision in set aside proceedings is rendered, enforcement courts may order the party against which enforcement is sought to provide adequate security if requested by the other party (Section 411(5) AEA and Art VI NYC).
In general, applications for obtaining a declaration of enforceability do not trigger any court fees. However, applications for a grant of the actual enforcement generally trigger court fees in the amount of 0.27% of the value of the claim to be enforced (Section 32 Austrian Court Fees Act).
Austrian law can be considered very arbitration friendly. Among other benefits, it provides for a fast and efficient enforcement mechanism with regards to foreign arbitral awards.
The enforcement of foreign arbitral awards consists of two steps: (i) an application for obtaining a declaration of enforceability (so that the foreign arbitral award represents a directly enforceable title in Austria), and (ii) an application for a grant of the actual enforcement measures. Both steps can be applied for in one and enforcement courts can rule on these jointly.
If enforcement applications are based on the NYC, parties must submit (i) a duly authenticated original or certified copy of the arbitral award and (ii) a certified translation thereof. The submission of the underlying arbitration agreement is typically only required if there are doubts as to its existence.
Austrian enforcement proceedings are comparably fast and effective, with the first instance decision being issued typically within two to four weeks without hearing the opposing party. If an appeal is raised, the appeal decision is usually issued within six to twelve months. In appeal proceedings, parties against which enforcement is sought may raise grounds for refusal of recognition and enforcement of arbitral awards (e.g., pursuant to Art V NYC). Under specific (limited) circumstances, the Austrian Supreme Court may be available as the third and last instance.
Applications for obtaining a declaration of enforceability do not trigger any court fees. However, applications for a grant of the actual enforcement generally trigger court fees in the amount of 0.27% of the value of the claim to be enforced.
[This article is intended for general information purposes only. It does not constitute any legal advice. Pitkowitz & Partners does not assume any liability for the information contained herein.]
Authors: Mag. Maximilian Albert Müller, LL.M. (Attorney at Pitkowitz & Partners) and Mag. Peter Machherndl (Attorney at Pitkowitz & Partners)