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24 June 2014
According to High Court jurisprudence,(1) the objection of a violation of the public order cannot lead to the foreign judgment being evaluated based on the underlying facts or the application of the law, as a review on the merits is not permitted (contrary to the clause in Article 6 of the Agreement between Austria and Liechtenstein on the Recognition and Enforcement of Court Decisions, Arbitration Awards, Amicable Settlements and Public Documents.(2)
Many legal scholars believe that the exception should be used only sparingly in order to avoid any disproportionate negative effects on the international accord of decisions. In addition, objections 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. A violation of the public order will be determined based on all facts of each individual case.
Section 72(3) of the Rules on Civil Procedure (according to which there is no reimbursement of costs in legal aid cases) was introduced in Austria in 2004. Before then, it was customary for the party whose complaint against the grant of legal aid succeeded to be awarded reimbursement of its costs in the proceedings.
Therefore, a foreign law that permits the reimbursement of costs in legal aid cases is not a violation of the public order.
In addition, the Rules on Civil Procedure in Liechtenstein that relate to the reimbursement of costs in legal aid cases do not violate the public order.
For further information on this topic please contact Klaus Oblin at Oblin Melichar by telephone (+43 1 505 37 05), fax (+43 1 505 37 05 10) or email (firstname.lastname@example.org). The Oblin Melichar website can be accessed at www.oblin.at.
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