Answer ... 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.
Regarding the enforcement of arbitral awards, a fairly recent decision of the Court of Justice of the European Union (CJEU) could have some impact. On 6 March 2018, in Slovak Republic v Achmea BV, the ECJ decided on the compatibility of a dispute settlement provision contained in Article 8 of the Netherlands-Slovakia bilateral investment treaty (BIT) with EU law. The CJEU concluded that Articles 267 and 344 of the Treaty on the Functioning of the European Union (TFEU) should be interpreted as precluding Article 8 of the Netherlands-Slovakia BIT, which allowed for resolution of investment disputes under that intra-EU BIT by way of arbitration. The CJEU seems to have based its decision on its view that the dispute resolution provision in the BIT may require a tribunal to interpret or apply EU law; this is inconsistent with Article 267 TFEU because, unlike a member state court, a tribunal cannot refer EU law questions to the CJEU.
In the case of further decisions following on from the decision rendered in Achmea, procedural rules may affect the tribunal’s adherence to CJEU decisions. International Centre for the Settlement of Investment Disputes (ICSID) awards are not subject to review by national courts, but non-ICSID awards are. Accordingly, non-ICSID tribunals seated in EU jurisdictions might be more inclined to consider the application of EU law, including decisions of the CJEU, if the tribunal considers itself bound to render an award that is aligned with the public policy at the seat of arbitration. 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.