Answer ... Already in 2006, the European Commission worked on a draft regulation to amend the Brussels IIa Regulation, but It was not until the Council Regulation 2019/1111 of 25 June 2019 that a new version of the Brussels IIa was created: The Brussels IIb Regulation. The recast mainly contains provisions on the recognition and enforcement of judgments on parental responsibility and on the procedure of international child abduction. This regulation is now applicable to all judicial proceedings in the relevant matters that were initiated from 1 August 2022.
On 1 January 2019 amendments to the Enforcement Act entered into force. These amendments now grant access to data about pending enforcement proceedings. Attorneys and notaries public may access information about the enforcement court, the case number and the amount of the debt that is subject to the enforcement proceedings. The database is available online and aims to assist potential claimants in evaluating the creditworthiness of their prospective respondents before commencing court or arbitral proceedings.
Another recent development is an Austrian Supreme Court decision handed down on 11 June 2018, confirming that the res judicata effect of a foreign judgment applies at all stages of proceedings conducted in Austria. This is particularly important as the decision clarifies that the effect of res judicata also applies to pending appellate proceedings. The Austrian Supreme Court emphasised that this is true with respect to both issues regarding res judicata – namely, the exclusiveness (ne bis in idem) and the binding effect (Bindungswirkung) of foreign judgments. Furthermore, the Austrian Supreme Court clarified that the interdiction of novation in appellate proceedings applies only to new facts and new evidence, and thus does not preclude the appellate court from considering the res judicata effect of a new foreign decision.
On 1 July 2021, the revised Enforcement Act entered into force, which brought significant changes to enforcement proceedings in Austria. In enforcement proceedings for the collection of monetary claims on movable property, jurisdiction has been consolidated at the district court of the debtor’s general place of jurisdiction or, if the debtor has no general place of jurisdiction, the district court in whose district the movable property to be seized is located (see question 1.3). There have also been revisions regarding the intersection of enforcement and insolvency law: if, during the determination of the assets, it becomes apparent during the execution proceedings that the obligated party is manifestly insolvent, the executing body or the administrator shall immediately stop the execution and the execution court may subsequently determine the insolvency by way of an order (Section 49a of the Enforcement Act). Most notable, however, is the introduction of the enforcement packages, which promise significantly facilitate enforcement on movable property for the collection of monetary claims (see question 7.1).
Regarding the enforcement of arbitral awards, the Court of Justice of the European Union (CJEU) has recently issued a number of rulings that have questioned the admissibility of intra-EU arbitration clauses, following its argumentation in Achmea v. Slovakia in March 2018. At that time, the CJEU came to the conclusion that investment arbitration proceedings based on bilateral investment treaties (BITs) contravene EU law. In its decision in Komstroy v. Republic of Moldova on 2 September 2021, the CJEU extended this case law to intra-EU arbitrations based on arbitration clauses contained in the Energy Charter Treaty. In Republic of Poland v. PL Holdings on 26 October 2021, the Court went even a step further and ruled that EU Member States are prohibited from entering into ad hoc arbitration agreements with EU investors if they would replicate the content of a BIT.
Consequently, there will be significant challenges to enforcing arbitral awards based on intra-EU arbitration agreements in the future. However, even if faced with the unfavourable stance of the European Union towards intra-EU investment treaty awards, claimants could seek to enforce their award outside of the European Union or consider selling the awards at a discount to third parties, such as investment funds, in order to avoid enforcement risks.