Graf & Pitkowitz Rechtsanwalte GmbH updates

Use of clandestine recordings as evidence
Graf & Pitkowitz Rechtsanwalte GmbH
  • Intellectual Property
  • Austria
  • 17 May 2021

The Supreme Court recently confirmed that both the production and disclosure of clandestine recordings violate copyright. However, clandestine recordings are admissible as evidence if the infringer cannot prove their claim in any other way and the infringer's interests outweigh those of the affected person. The Supreme Court further pointed out that a court cannot decide on the admissibility of evidence obtained under a copyright breach which is to be submitted in other court proceedings.

Supreme Court analyses conflicting forum selection clauses
Graf & Pitkowitz Rechtsanwalte GmbH
  • Arbitration & ADR
  • Austria
  • 29 April 2021

The Supreme Court recently assessed a case where the parties had agreed two conflicting forum selection clauses within the same contract: an arbitration agreement and a jurisdiction clause in favour of a state court. Conflicting forum selection clauses providing for the jurisdiction of state courts on the one hand and arbitral tribunals on the other hand are regularly contained in one contract. Austrian case law generally tends to construe contracts in a way that gives effect to the arbitration agreement.

Refill products infringe trademark
Graf & Pitkowitz Rechtsanwalte GmbH
  • Intellectual Property
  • Austria
  • 19 April 2021

The Supreme Court recently held that selling refill products for a dispenser that is manufactured by another party without indicating that the refill product is not produced by the dispenser's manufacturer constitutes trademark infringement. The decision clarifies that parties must label refill products to prevent the relevant public (ie, the users of the refill product) thinking that the manufacturer of the refill product is also the manufacturer of the dispenser.

COVID-19 and commercial leases – new court decisions
Graf & Pitkowitz Rechtsanwalte GmbH
  • Real Estate
  • Austria
  • 26 March 2021

To date, there have been three COVID-19-related lockdowns in Austria. During each of these periods, the customer area of shops had to be closed to the public, except for certain essential retail stores. Restaurants could offer takeaway and delivery services only and hotels were shut subject to certain exceptions. This situation has created significant uncertainty regarding tenants' right to claim a COVID-19-related rent reduction. The Austrian courts recently issued two new decisions on this matter.

COVID-19 and commercial leases – one year on
Graf & Pitkowitz Rechtsanwalte GmbH
  • Real Estate
  • Austria
  • 12 March 2021

Two lower court decisions have confirmed tenants' right to claim a COVID-19-related rent reduction in general. However, both decisions must be read carefully and leave many questions unanswered, particularly in cases where shops made or could have made limited use of their premises during the national lockdowns by offering online delivery or click and collect services. In addition, state aid may affect rent reductions. This uncertainty has led to many mutual agreements in the market.

New legal framework for working from home
Graf & Pitkowitz Rechtsanwalte GmbH
  • Employment & Immigration
  • Austria
  • 03 March 2021

In the wake of the COVID-19 pandemic, the government commissioned the so-called 'social partners' (ie, the Chamber of Commerce representing employers and labour unions acting on behalf of employees) to negotiate and present a bill on working from home that Parliament can pass into law as the new standard on the matter. The new framework will cover various issues – from contractual provisions and co-determination by works councils to recommendations on occupational safety.

Can eye rolling be a reason to challenge an arbitrator?
Graf & Pitkowitz Rechtsanwalte GmbH
  • Arbitration & ADR
  • Austria
  • 24 December 2020

The Supreme Court recently dealt with the challenge of an arbitrator on the grounds that he had rolled his eyes during the pleading of a party's representative. Said arbitrator did not explicitly contest the accusation of having rolled his eyes. Nonetheless, he claimed to be able to objectively give a legal assessment of the facts of the case. This decision adds to the case law on the impartiality and independence of arbitrators, particularly with respect to an allegation of bias based on non-verbal reactions.

Competitive actions by employees through intermediaries: imputation of liability and restrictive covenants
Graf & Pitkowitz Rechtsanwalte GmbH
  • Employment & Immigration
  • Austria
  • 04 November 2020

Under Section 7 of the Employment Act, employees cannot, while employed and without their employer's consent, operate a commercial business or conclude commercial transactions in their employer's line of business. In a recent case, the Supreme Court had to decide whether the statutory prohibition also covers such competitive actions by employees through intermediaries or whether only the employees themselves have the standing to be sued by their employer.

Supreme Court scrutinises admissibility of videoconference hearings
Graf & Pitkowitz Rechtsanwalte GmbH
  • Arbitration & ADR
  • Austria
  • 29 October 2020

The Supreme Court recently determined the admissibility of conducting an arbitral hearing by means of a videoconference in the context of challenge proceedings. The court held that even where one party opposes, ordering a remote hearing in arbitration is admissible and does not constitute a reason to challenge the arbitral tribunal. This decision must be regarded as a precedential landmark decision as it appears to be the first decision of any supreme court worldwide to tackle this issue.

Supreme Court specifies reasoning standards for awards
Graf & Pitkowitz Rechtsanwalte GmbH
  • Arbitration & ADR
  • Austria
  • 08 October 2020

Under longstanding Supreme Court case law, defective reasoning did not previously constitute a severe enough violation of procedural public policy to set aside an award. However, in recent years, the court has reversed this trend and repeatedly held that non-adherence to certain reasoning standards in arbitral awards can be a ground to set aside an award. In a recent decision, the Supreme Court has provided further guidance on the required reasoning standards for awards.

Supreme Court rules on compensation for illegal GPS tracking
Graf & Pitkowitz Rechtsanwalte GmbH
  • Employment & Immigration
  • Austria
  • 16 September 2020

The Supreme Court recently ruled for the first time on the issue of whether GPS tracking without an employee's consent warrants compensation for immaterial damage. Employers that use GPS tracking systems or similar control measures to monitor their staff should ensure that they agree the system's introduction with the works council or have each affected employee expressly consent to such a measure if no works council has been elected.

Supreme Court rules on formal requirements for dismissal challenge
Graf & Pitkowitz Rechtsanwalte GmbH
  • Employment & Immigration
  • Austria
  • 22 July 2020

The Supreme Court recently clarified the legal implications of one particular scenario of dismissal challenges: if a works council expressly objects to an employee's dismissal (as opposed to expressly consents or fails to make a statement), the right to challenge the dismissal rests with the works council, but only if the employee, within one week of such objection, requests the works council to act accordingly and file a lawsuit.

Supreme Court scrutinises decision awarding costs to losing party
Graf & Pitkowitz Rechtsanwalte GmbH
  • Arbitration & ADR
  • Austria
  • 16 July 2020

The Supreme Court recently considered whether a final arbitral award on the reimbursement of costs violated Austrian public policy. The claimant had ultimately succeeded in the arbitration conducted under the rules of the International Court of Arbitration of the International Chamber of Commerce. Nevertheless, the cost decision ordered it to reimburse the respondent's costs. The Supreme Court dismissed the claimant's request to set aside the cost decision.

Continued remuneration during COVID-19 pandemic
Graf & Pitkowitz Rechtsanwalte GmbH
  • Employment & Immigration
  • Austria
  • 13 May 2020

The COVID-19 pandemic has caused employers to use various methods to support employees and maintain business performance. Old and new legal remedies provide for continued payment of salaries (and in some cases also corresponding grants to employers) if performance of work is impossible. This article outlines the routes that employers and employees can take where normal working is impossible, such as sick leave and care leave to look after sick children.

COVID-19: short-time work
Graf & Pitkowitz Rechtsanwalte GmbH
  • Employment & Immigration
  • Austria
  • 06 May 2020

Austria pioneered short-time work schemes. Introduced in 1949 and overhauled in 2008 and 2009 during the financial crisis, the Austrian short-time work scheme has recently been further adapted to the particular needs of the COVID-19 crisis. This article examines who is eligible for the short-time work scheme and what subsidies are available.

COVID-19 measures may entitle tenants to rent reductions
Graf & Pitkowitz Rechtsanwalte GmbH
  • Real Estate
  • Austria
  • 03 April 2020

In an effort to reduce the spread of COVID-19, the government has ordered all shops and service providers, except those providing certain vital services, to close to customers from 17 March 2020 until 13 April 2020. The closure of shops may entitle tenants to reduced rent and ancillary costs. However, it does not entitle tenants to terminate their lease for cause. This article sets out guidance for affected tenants and landlords.

Collective agreements trump Working Time Act
Graf & Pitkowitz Rechtsanwalte GmbH
  • Employment & Immigration
  • Austria
  • 18 March 2020

Following amendments to the Working Time Act, it was unclear whether the new statutory regime regarding working time overrides collective bargaining agreements that have not been adapted to the new maximum work hours and provide for a daily maximum of 10 working hours for flexitime. In the first decision on this issue, which will have far-reaching consequences, the Supreme Court has clarified all relevant questions regarding the collective bargaining agreement for metal workers.

Supreme Court takes strict stance on conflict of interest
Graf & Pitkowitz Rechtsanwalte GmbH
  • Arbitration & ADR
  • Austria
  • 16 January 2020

The Supreme Court recently considered whether the fact that an arbitrator and a party counsel in one arbitration acted as co-counsel in another unrelated arbitration cast doubt on the arbitrator's independence and impartiality and thus disqualified him from acting as arbitrator in the arbitration under review. In its decision, the court correctly acknowledged the reality of the Austrian arbitration scene, which results in frequent contact between practitioners.

Gig economy un-gigged: collective bargaining agreement for bike couriers
Graf & Pitkowitz Rechtsanwalte GmbH
  • Employment & Immigration
  • Austria
  • 18 December 2019

From 1 January 2020, bike couriers' employment relationships will be governed by a newly enacted collective bargaining agreement. Bike couriers in Austria now enjoy rights and benefits which are similar to employees in other sectors. While this is good news for bike couriers, it remains to be seen whether customers will have to pay the bill because of increased prices for courier services.

Supreme Court redefines location surcharge in rent control leases
Graf & Pitkowitz Rechtsanwalte GmbH
  • Real Estate
  • Austria
  • 18 October 2019

In early 2019 the Supreme Court passed three decisions confirming and clarifying its 2017 decision which had limited landlords' right to request a location surcharge for rent-controlled apartments in desirable neighbourhoods. Based on the court's judgment, approximately 100,000 apartments no longer qualify for the location surcharge. However, the court's vague criteria for determining whether a neighbourhood is considered above or below average leave scope to include additional indicators.

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