Gathering Evidence in Aid of Foreign Litigation Guide |
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Austria |
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(Europe)
Firm
CERHA HEMPEL Rechtsanwälte GmbH
Contributors
Irene Wesler |
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| Does your jurisdiction permit gathering evidence in aid of foreign litigation? | Yes. |
| Is your jurisdiction a party to the Hague Evidence Convention? Are there other statutory requirements for obtaining evidence in aid of foreign litigation? Please indicate the relevant statutes. | Austria has not ratified the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”) (but Austria is a member of the Hague Conference on Private International Law "HCCH" and contracting party to the Hague Convention of 1 March 1954 on Civil Procedure) When it comes to obtaining evidence in aid of foreign litigation, the EU Regulation 1206/2001 (Council Regulation (EC) of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters) is relevant (note: Regulation (EC) No 1206/2001 will be almost completely repealed and replaced by (EU) 2020/1783 as of 1 July 2022). Furthermore, the provisions on requests for legal aid from foreign courts (§§ 38 et seqq JN (Austrian Judicature Act “Jurisdiktionsnorm”)) are relevant. |
| Do requests for gathering evidence require approval by a court or administrative body? Please indicate the appropriate forum for making such requests. | In Austria, it is generally the district courts (Bezirksgerichte) that deal with any kind of request regarding legal aid with respect to foreign litigation. Moreover, the direct taking of evidence by foreign courts in Austria is only permitted with the approval of the Austrian Ministry of Justice (§ 39a JN); for further information see also Introductory Decree to the Regulation EC 1206/2001. In Austria, the Ministry of Justice is also competent in case of difficulties with regard to such requests for gathering evidence. |
| What types of information can be sought? Requests for Documents? Written questions? Depositions? | Questioning of witnesses, examination of documents or objects. |
| Who bears the burden of showing whether any privileges apply? | As a general rule, the party that relies on a privilege has the burden of showing such privilege applies. |
| Does there need to be any showing that the information sought is allowable in the foreign jurisdiction in which the action is pending? | Yes, this can be the case with respect to certain procedural steps, e.g. considering Article 14 of EU Regulation 1206/2001 (Article 16 of EU Regulation 2020/1783 ) that stipulates that “A request for the hearing of a person shall not be executed when the person concerned claims the right to refuse to give evidence or to be prohibited from giving evidence under the law of the member state of the requested court or under the law of the member state of the requesting court, and such right has been specified in the request, or, if need be, at the instance of the requested court, has been confirmed by the requesting court.” Besides that, according to § 38 (2) 2. JN legal aid must be refused by the requested court if the action requested is forbidden under mandatory Austrian law. |
| If your jurisdiction allows depositions, may they be conducted remotely (by videoconference, Zoom etc.) | Depositions are in principle possible. Before the COVID-19 pandemic crisis, the remote examination of witnesses was generally very rare and in fact, only allowed in specific cases (e.g. if the examination of a witness by a requested judge was neither necessary nor appropriate - § 277 ZPO/Austrian Code of Civil Procedure ("ZPO"); or if the victim of a criminal offense related to the respective civil procedure or a minor worthy of protection was heard - §§ 289a/289b ZPO). Because of the COVID-19 pandemic crisis, it became in principle - at least temporarily – possible to conduct hearings remotely (and also hear witnesses via electronic means of communication/video conference, Zoom). A corresponding bill to introduce electronic negotiations in general (and on a permanent basis) is currently being negotiated. |
| Has your jurisdiction adopted any “blocking statutes” that limit the extent to which residents in your jurisdiction may give evidence in a foreign court’s civil or criminal proceedings? | In this regard, § 38 (2) 2. must be considered (see above), as well as the limits set by EU Regulation 1206/2001 (EU Regulation 2020/1783) and the Hague Convention of 1 March 1954 on Civil Procedure. |
| May citizens residing in your jurisdiction voluntarily give evidence in a foreign proceeding? If not, what procedure must be followed before they can give evidence? If such restrictions exist, are they enforced in practice? | Giving evidence on a completely voluntary basis is in principle possible. |
| Would your answers differ materially if the foreign proceeding is arbitration, and if so how? | The Austrian Code of Civil Procedure ("ZPO") contains a specific provision that applies as well to foreign arbitrations: “Judicial Assistance: § 602. The arbitral tribunal, arbitrators who have been authorized to this effect by the arbitral tribunal or one of the parties with the approval of the arbitral tribunal, may apply to the court for the performance of judicial acts for which the arbitral tribunal has no authority. Judicial assistance may also consist of the court requesting a foreign court or an administrative authority to perform such acts. § 37 para 2 to 5 und §§ 38, 39 and 40 of the Austrian Judicature Act (“Jurisdiktionsnorm”) shall apply accordingly, subject to the proviso that the arbitral tribunal and the parties to the arbitral proceedings shall have the right of appeal pursuant to § 40 of the Austrian Judicature Act. The arbitral tribunal or an arbitrator mandated by the arbitral tribunal and the parties are entitled to attend an evidentiary hearing of the court and may put questions. § 289 of this act shall apply accordingly.” It must be taken into account, however, that Arbitral Tribunals are not courts in the meaning of the EU regulation on cooperation between the courts of the member states in the taking of evidence in civil or commercial matters. As such, the answers given above would differ in case the foreign proceeding was an arbitration. |
Gathering Evidence in Aid of Foreign Litigation Guide
Yes.
Austria has not ratified the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”) (but Austria is a member of the Hague Conference on Private International Law "HCCH" and contracting party to the Hague Convention of 1 March 1954 on Civil Procedure)
When it comes to obtaining evidence in aid of foreign litigation, the EU Regulation 1206/2001 (Council Regulation (EC) of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters) is relevant (note: Regulation (EC) No 1206/2001 will be almost completely repealed and replaced by (EU) 2020/1783 as of 1 July 2022).
Furthermore, the provisions on requests for legal aid from foreign courts (§§ 38 et seqq JN (Austrian Judicature Act “Jurisdiktionsnorm”)) are relevant.
In Austria, it is generally the district courts (Bezirksgerichte) that deal with any kind of request regarding legal aid with respect to foreign litigation.
Moreover, the direct taking of evidence by foreign courts in Austria is only permitted with the approval of the Austrian Ministry of Justice (§ 39a JN); for further information see also Introductory Decree to the Regulation EC 1206/2001.
In Austria, the Ministry of Justice is also competent in case of difficulties with regard to such requests for gathering evidence.
Questioning of witnesses, examination of documents or objects.
As a general rule, the party that relies on a privilege has the burden of showing such privilege applies.
Yes, this can be the case with respect to certain procedural steps, e.g. considering Article 14 of EU Regulation 1206/2001 (Article 16 of EU Regulation 2020/1783 ) that stipulates that “A request for the hearing of a person shall not be executed when the person concerned claims the right to refuse to give evidence or to be prohibited from giving evidence under the law of the member state of the requested court or under the law of the member state of the requesting court, and such right has been specified in the request, or, if need be, at the instance of the requested court, has been confirmed by the requesting court.”
Besides that, according to § 38 (2) 2. JN legal aid must be refused by the requested court if the action requested is forbidden under mandatory Austrian law.
Depositions are in principle possible. Before the COVID-19 pandemic crisis, the remote examination of witnesses was generally very rare and in fact, only allowed in specific cases (e.g. if the examination of a witness by a requested judge was neither necessary nor appropriate - § 277 ZPO/Austrian Code of Civil Procedure ("ZPO"); or if the victim of a criminal offense related to the respective civil procedure or a minor worthy of protection was heard - §§ 289a/289b ZPO). Because of the COVID-19 pandemic crisis, it became in principle - at least temporarily – possible to conduct hearings remotely (and also hear witnesses via electronic means of communication/video conference, Zoom).
A corresponding bill to introduce electronic negotiations in general (and on a permanent basis) is currently being negotiated.
In this regard, § 38 (2) 2. must be considered (see above), as well as the limits set by EU Regulation 1206/2001 (EU Regulation 2020/1783) and the Hague Convention of 1 March 1954 on Civil Procedure.
Giving evidence on a completely voluntary basis is in principle possible.
The Austrian Code of Civil Procedure ("ZPO") contains a specific provision that applies as well to foreign arbitrations:
“Judicial Assistance: § 602. The arbitral tribunal, arbitrators who have been authorized to this effect by the arbitral tribunal or one of the parties with the approval of the arbitral tribunal, may apply to the court for the performance of judicial acts for which the arbitral tribunal has no authority. Judicial assistance may also consist of the court requesting a foreign court or an administrative authority to perform such acts. § 37 para 2 to 5 und §§ 38, 39 and 40 of the Austrian Judicature Act (“Jurisdiktionsnorm”) shall apply accordingly, subject to the proviso that the arbitral tribunal and the parties to the arbitral proceedings shall have the right of appeal pursuant to § 40 of the Austrian Judicature Act. The arbitral tribunal or an arbitrator mandated by the arbitral tribunal and the parties are entitled to attend an evidentiary hearing of the court and may put questions. § 289 of this act shall apply accordingly.”
It must be taken into account, however, that Arbitral Tribunals are not courts in the meaning of the EU regulation on cooperation between the courts of the member states in the taking of evidence in civil or commercial matters. As such, the answers given above would differ in case the foreign proceeding was an arbitration.