Oblin Melichar updates

Disclosure of accounts pursuant to Article XLII of Code of Civil Procedure
Oblin Melichar
  • Litigation
  • Austria
  • July 18 2017

Under Article XLII of the Code of Civil Procedure, any party that has a substantive claim for information against another party (which it is suing for performance) has a claim for the disclosure of accounts to mitigate serious problems with quantifying the substantive claim if the accounts could help the claimant and if the respondent can be reasonably expected to provide them.

Supreme Court rules on international jurisdiction in copyright infringement cases
Oblin Melichar
  • Litigation
  • Austria
  • May 30 2017

The Supreme Court recently held that jurisdiction for tort cases under Article 7(2) of the Brussels I Regulation must be interpreted only under the regulation. According to the regulation, torts are illegal acts that ultimately require the defendant to pay damages and are not connected to a contract within the meaning of Article 7(1) of the regulation. According to the court, this jurisdiction includes both the place of the original act and the place where the loss occurred or is about to occur.

Court rules on validity of service of process in alternative location
Oblin Melichar
  • Litigation
  • Austria
  • January 31 2017

The Supreme Court recently ruled on whether and under which circumstances a service of process is valid in a location different from that originally listed. The court ultimately held that a request for service of process can be lawfully interpreted only according to the respective state law. If that law states that the service of process can also take place in a different location, there is no reason to view this as unlawful.

Supreme Court rules on liability of arbitrators to pay damages
Oblin Melichar
  • Litigation
  • Austria
  • August 02 2016

The Supreme Court recently ruled on the liability of arbitrators to pay damages. The court ultimately upheld the terms of the arbitrators' contract, finding that civil claims for damages can be pursued, among other things, only after the arbitration award has been annulled. This case demonstrates that arbitrators' contracts should be interpreted in a way that ties the arbitrators' liability for damages to the annulment of the arbitration award.

Limits of res judicata
Oblin Melichar
  • Litigation
  • Austria
  • March 08 2016

The Supreme Court recently dealt with the limits of preclusion or res judicata. According to the subjective limits of preclusion, the effects of res judicata encompass the litigants, their legal successors and certain other persons to which the legal effects of the respective court's decision are extended in accordance with the law. Therefore, res judicata takes effect − apart from cases of extended and absolute legal force – only between the same parties.

Courts can order payment of security when seeking enforceability
Oblin Melichar
  • Litigation
  • Austria
  • December 01 2015

The Supreme Court recently ruled that if the judgment for which a declaration of enforceability is sought is not final, the court deciding on a second or third appeal may order the party seeking the declaration to pay security in accordance with the Brussels I Regulation. This is intended to prevent unjustified losses to the debtor if the court order is later rescinded or amended and the claims for damages or unjust enrichment cannot be enforced.

Supreme Court rules on enforcement of foreign monetary claims
Oblin Melichar
  • Litigation
  • Austria
  • August 25 2015

The Supreme Court recently ruled that, for transactions between Single Euro Payments Area countries, the enforcement of an obligation to pay a monetary claim in a foreign currency must be executed in accordance with the rules on the enforcement of monetary claims. The court thus ordered the debtor to post a US dollar amount with a Slovakian court based on a Slovakian court order.

'In writing' requirement can be met by terms and conditions with prorogation clause
Oblin Melichar
  • Litigation
  • Austria
  • December 02 2014

The Supreme Court has ruled in a case in which the plaintiff argued for international jurisdiction based on the rules for disputes regarding individual employment contracts, as outlined in the Lugano Convention 2007. While the convention's 'in writing' requirement can be met by referencing terms and conditions which include a prorogation clause, standing case law requires a contract's text to refer explicitly to the terms and conditions.

Supreme Court rules that CMR hold priority over Rome I Regulation
Oblin Melichar
  • Litigation
  • Austria
  • September 02 2014

In a recent decision the Supreme Court considered matters of judicial conflict arising in connection with the Convention on the Contract for the International Carriage of Goods by Road (CMR). The court ruled that the CMR enjoys priority over the Rome I Regulation, insofar as it addresses an issue itself or provides a conflict rule.

Rules on reimbursement of costs and public order
Oblin Melichar
  • Litigation
  • Austria
  • June 24 2014

The objection of a violation of the public order can be used only if the foreign title is based on a legal argument that is completely incompatible with the domestic legal order. However, not all deviations from Austrian procedural law will make enforcement of a foreign title incompatible with the legal order.

Where does harm first arise?
Oblin Melichar
  • Litigation
  • Austria
  • June 17 2014

The European Court of Justice recently ruled on where harm first arises with regard to product liability claims. It held that in cases where a producer is being sued based on liability for a faulty product, the location of the harmful event is where the product in question was produced.

Courts consider exclusive jurisdiction in cases of lease and tenancy
Oblin Melichar
  • Litigation
  • Austria
  • March 11 2014

The Supreme Court recently ruled that, in accordance with the Brussels I Regulation, the courts of the member state where immovable property is situated have exclusive jurisdiction for cases dealing with rights in rem for the lease or tenancy of immovable objects. This international exclusive jurisdiction issue supersedes the general jurisdiction of the courts in the domicile state of the defendant.

Who has jurisdiction? Austrian court considers provision of services under EU law
Oblin Melichar
  • Litigation
  • Austria
  • December 17 2013

The High Court recently ruled that in decisions with international jurisdiction, the term 'services' must be interpreted through the use of EU law as a whole. Further, such interpretation must encompass all contracts that cover the achievement of a certain factual result in exchange for payment, as opposed to the mere performance of an activity, as in an employment contract.

Can judgment be enforced even without service of court order?
Oblin Melichar
  • Litigation
  • Austria
  • October 15 2013

The High Court recently ruled that Article 34(2) of the Brussels I Regulation, which prevents a judgment from being recognised if the defendant was not granted sufficient opportunity to defend himself or herself against the claim, is applicable only if the document initiating the proceedings was served on the defendant in a way such that he or she could raise a defence against the lawsuit.

Austrian court denies enforcement of Italian payment order
Oblin Melichar
  • Litigation
  • Austria
  • July 09 2013

An Italian court recently granted a payment order against a company registered in Austria to an Italian plaintiff, in which the Austrian company was ordered to pay around €2.7 million. However, the Austrian High Court has ruled that as the Austrian defendant was not granted due process and had no opportunity to voice its objections against the claim, the payment order cannot be enforced in Austria.

Court considers preventive injunctions for nuclear power plants
Oblin Melichar
  • Litigation
  • Austria
  • March 05 2013

The Supreme Court recently updated existing case law, stating that an action for a preventive injunction regularly requires that the infringement of rights have already begun. The more valuable the potentially threatened right, the more likely it is that the potential tortfeasor must refrain from activities that would lead to the possibility of damage. However, the applicant must provide proof of a serious and imminent threat.

Suspension of enforcement: the necessary content of a request
Oblin Melichar
  • Litigation
  • Austria
  • October 30 2012

The Supreme Court recently dealt with the requirements for the suspension of enforcement proceedings under Austrian and European law. Under the Enforcement Act, enforcement can be postponed only if its beginning or continuation is related to the risk of an irreplaceable property loss, or one that would be difficult for the applicant to replace.

Supreme Court issues opinion on declaratory judgments
Oblin Melichar
  • Litigation
  • Austria
  • June 26 2012

The Supreme Court has recently had to deal with questions regarding declaratory judgments. In a recent decision, the court issued an interim judgment on the (negated) statute of limitations. Such interim judgment does not exclude the claim being later rejected due to a lack of evidence. The court also examined the requirements of legal interest in a declaratory judgment, in connection with conditional rights.

Supreme Court confirms suspension of proceedings for similar cases
Oblin Melichar
  • Litigation
  • Austria
  • November 01 2011

The Supreme Court recently confirmed that the universal successor of a party to proceedings is regarded as 'the same party'. Where proceedings involving the same cause of action and between the same parties are brought before the courts of different member states, any court other than the court first seized shall, of its own motion, stay its proceedings until such time as the jurisdiction of the court first seized is established.

Court rules on timeliness of submissions by fax or email
Oblin Melichar
  • Litigation
  • Austria
  • August 16 2011

The Supreme Court recently handed down two decisions dealing with the timeliness of submissions made by fax or email. The court ruled that the sender of a brief will always bear the risk if a fax or email does not arrive, even if the reason for late receipt lies with the court. Emergency submissions (eg, where a fax does not go through) should be filed by email in the assumption that there will be no server problems.

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