When people think of Austria, they may think of the beautiful backdrop of The Sound of Music or Before Sunrise. Or they may think of the cultural heritage of Beethoven and Mozart. Or of luminaries like Sigmund Freud and Arnold Schwarzenegger. But when I think of Austria, I wonder about what it is like to litigate commercial disputes there. And so I was very excited to speak with Roxanne de Jesus, a partner at Pitkowitz & Partners in Vienna, to learn more.

Why should you continue reading this post about litigation in Austria?

You are excited to read my first interview with a lawyer in a German-speaking jurisdiction and am glad I did not start that series with Germany, like other bloggers could have done.
You are excited to read some cool statistics on court efficiency!
You want your mind blown by the Austrian system of assigning judges to cases.

Roxanne de Jesus is a partner at Pitkowitz & Partners in Vienna.

Can you tell me about the kinds of disputes you handle in your legal practice?

We represent clients in commercial disputes. Anything that has any commercial link, my firm and I will handle. We also advise clients in commercial matters, for example, third party litigation funders about the strength of potential cases. Most recently, we have done this for proposed class action cases.

What type of clients do you generally represent in disputes?

We normally represent mid-size firms and larger companies. Every once in a while, we represent individuals if there is a high enough amount in dispute.

Besides Microsoft Office, what software do you use in your practice?

We use Zoom and Microsoft Teams. We also use Advokat, which permits us to record our time spent on matters and manages and stores our documents. It also enables us to submit documents to court and to our adversaries, and to receive filings from the court and our adversaries. It is not the only program that does this for Austrian lawyers, there are competitors.

What books and websites do you use for legal research?

If we use books, it’s going to be commentaries on laws and the most important ones are online: we use rdb Rechtsdatenbank - it has the most important commentaries and articles. We also use Lexis Nexis. We also review Supreme Court decisions, which are available online with redactions, and websites that set forth Austrian laws.

Image credit: https://en.wikipedia.org/wiki/Palace_of_Justice,_Vienna#/media/File:Wien_01_Justizpalast_a.jpg

You mentioned that you electronically file pleadings with the court? Is this mandatory in Austria?

In commercial cases, e-filing is mandatory and all Austrian lawyers are required to have the ability to make electronic submissions to the court and to opposing counsel. But the electronic filing system only allows a user to see the submissions in their own cases. Filings from other cases are not available online.

Does Austria have specialized courts that only hear commercial cases?

Yes. In Vienna, the district court and the regional court each have a separate commercial court that decides commercial matters. The district court (the Bezirksgericht) hears disputes over 15,000 euros or less, and the regional court (the Landesgericht) hears disputes over larger amounts. Outside of Vienna, there are not separate commercial courts, but the courts there have commercial divisions that only hear commercial cases.

Who decides the facts in a commercial case? Is it a judge or a jury?

A judge decides the facts. We only have juries in criminal cases.

Generally speaking, how many pages are the complaints or initial pleadings you see in your work?

Plaintiffs make initial pleadings as short as possible. You don't want to give everything away with your first pleading. I try to make them about five pages long, though subsequent pleadings will be much longer. Those are generally around 20-50 pages.

Generally speaking, how long does it take for a case to go from complaint to judgment?

I have found statistics from 2021 to answer this question. In Austrian district courts, cases tend to have a length of 9.4 months. In the regional courts, it takes roughly one and a half years. Only 2.2% of cases take longer than three years. Here are the statistics: https://www.justiz.gv.at/justiz/daten-und-fakten/verfahrensdauer.1e7.de.html.

Generally speaking, how is evidence exchanged between the parties before trial? Do you get to interview the opposing witnesses before the trial?

In Austria, we don't exchange evidence before trial. We don't have discovery or anything like that. And we are not entitled to interview opposing witnesses before trial.

If you win, does the other side reimburse your attorneys’ fees?

Yes, but the reimbursement is based on a tariff which is the Austrian statutory act on tariffs, which requires a calculation of fees based on the amount of dispute. This generally produces an amount that is lower than what an attorney actually charges based on an hourly rate.

Are the Austrian courts open to the public? Can ordinary people watch a commercial trial?

Yes, they have to be as a principle. We have had cases that took all day, from morning to night, and the court still has to enable the public to come and listen to the proceedings, even though this required the security guards to stay longer to be there.

Do you believe that Italian courts have a particular strength for resolving commercial disputes?

The specialized commercial courts are a strength. And the speed of proceedings reflects the efficiency of the Austrian system.

How about a weakness?

Court fees tend to be a problem. The filing fees are based on the amount in dispute and there is no limit. They could be tens of thousands of euros or more and there are separate fees for appeals. We had a case involving the recognition of a nine million euro foreign arbitral award and for the appeal alone, we had to pay 45,000 euros in court fees.

Is it true that Austria assigns judges to cases based on name of the party?

Yes. Each judge is assigned certain letters of the alphabet and hears all of the cases in which the plaintiff starts with that letter.

Does that make it easier for parties to select the judge they want by including another party with a desirable letter or moving around the order of the names when there are multiple letters? And does this mean that the same litigants will often see the same judges?

Including a party as claimant doesn’t really sound easy or practicable. Moving around the order of the names would not work either. It would rather require changing a person’s or a company’s name, so no, all in all it’s not easy for the parties to circumvent the established distribution of court cases (feste Geschäftsverteilung). Yes, same litigants will often see the same judges.

How often do you go to the courthouse?

Since we also do arbitration, we only go on average about once per month.

When you are there, do you need to wear a special robe or wig?

There is no special garment.

Litigation in Austria