Encyclopedia of Private International Law
Show Less

Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
Buy Book in Print
Show Summary Details
Limited access

Austria

Federal Statute of 15 June 1978 on Private International Law1

Official Journal no 304/1978, last amended by Official Journal no I 158/2013

Chapter 1 General Provisions

Principle of Strongest Connection

  • (1) Factual situations with foreign contacts shall be judged, in regard to private law, according to the legal order to which the strongest connection exists.

  • The special rules on the applicable legal order which are contained in this Federal Statute (conflict rules) shall be considered as expression of this principle.

Determination of Choice of Law Prerequisites

  • The factual and legal prerequisites determinative for the choice of a particular legal order shall be determined ex officio, unless procedural rules require that the assertions of the parties be accepted as true in those subject matters for which a contractual choice of law is possible (§§ 19, 35 para.1).

Application of Foreign Law

  • If foreign law is determinative, it shall be applied ex officio and as it would be in its original jurisdiction.

Ascertainment of Foreign Law

  • (1) The foreign law shall be ascertained ex officio. Permissible aids therefor are, among others, the participation of the persons involved, information from the Federal Ministry of Justice, and expert opinions.

  • If despite intensive efforts the foreign law cannot be ascertained within a reasonable time, Austrian law shall be applied.

Renvoi – Reference Back and Reference to a Third Jurisdiction

  • (1) Reference to a foreign legal order includes also its conflicts rules.

  • If the foreign legal order refers back, Austrian internal rules (rules excepting conflicts rules) shall be applied; if reference is made to a third jurisdiction, further references shall be considered, but the internal rules of the legal order which itself does not refer to any other law or to which another law refers back for the first time shall be determinative.

  • If a foreign legal order consists of several partial legal orders, that partial legal order shall be applied to which the rules existing in the foreign legal order refer. In the absence of such rules, that partial legal order shall be determinative to which the strongest connection exists.p. 2952

Public Policy Exclusion (Ordre Public)

  • A provision of foreign law shall not be applied when ist application would lead to a result irreconcilable with the basic tenets of the Austrian legal order. In its place, if necessary, the corresponding provision of Austrian law shall be applied.

Subsequent Occurrences and Applicable Law

  • A subsequent change in the prerequisites determinative for the choice of a particular legal order has no effects upon already completed facts.

Form

  • The form of a legal act shall be judged according to the same law as the legal act itself, sufficient, however, shall be the adherence to the form requirements of the state where the legal act is carried out.

Personal Status Law of a Natural Person

  • (1) The personal status law of a natural person shall be the law of the state to which the person belongs. If in addition to a foreign citizenship a person also has Austrian citizenship, the latter shall be determinative. For other persons of multiple citizenship, the citizenship of that state shall be determinative to which the strongest connection exists.

  • If a person is stateless or if his citizenship cannot be established, his personal status law shall be the law of the state in which he has his habitual residence.

  • The personal status law of a person who is a refugee within the meaning of the international agreements effective for Austria, or whose relationship to his home state is severed for comparably serious reasons, shall be the law of the state in which the person has his domicile, and in its absence, his habitual residence; reference by that law to the law of the home state (§ 5) shall be disregarded.

Personal Status Law of a Legal Person

  • The personal status law of a legal person or of any other association of persons or aggregate of assets which can be endowed with rights or subjected to duties shall be the law of the state in which the legal entity has its chief executive office.

Contractual Choice of Law

  • (1) In case of doubt, a contractual choice of law by the parties (§§ 19, 35, para. 1) does not incorporate the conflicts rules of the chosen law.

  • A contractual choice of law merely implied during a pending proceeding shall be disregarded.

  • The legal position of third parties shall not be impaired through a subsequent contractual choice of law.

Chapter 2 Law of Persons

Legal Capacity and Capacity to Act

  • A person’s legal capacity and his capacity to act shall be judged according to his personal status law.

Name

  • (1) The use of the name of a person shall be judged according to the personal status law applicable to him, whatever the ground of acquisition of the name.

  • The protection of the name shall be judged according to the law of the state where the act of violation occurs.p. 2953

Declaration of Death and Proof of Death Proceeding

  • The prerequisites, effects, and revocation of a declaration of death or a proof of death proceeding shall be judged according to the last known personal status law of the missing person.

Measures for the Protection of Adults

  • (1) The prerequisites, effects and termination of measures taken for the protection of the person and property of an adult who is not in a position to protect his interests owing to an impairment or insufficiency of his personal faculties shall be judged according to his personal status law.

  • The conditions for the implementation of a measure specified in paragraph 1 shall be judged according to the law of the state in which it will be implemented.

Chapter 3 Family law

A. Marriage Law Form of Marriage Celebration

  • (1) The form of a marriage celebration within the domestic territory shall be judged according to the domestic provisions on form.

  • The form of a marriage celebration abroad shall be judged according to the personal status law of each of the betrothed; sufficient, however, shall be compliance with the provisions on form of the place of celebration.

Prerequisites for Entry into Marriage

  • (1) The prerequisites for entry into marriage as well as for nullity and dissolution of the marriage shall be judged for each of the betrothed according to his personal status law.

  • If, through a decision effective for the jurisdiction of Austrian law, a marriage was annulled, dissolved, or declared nonexistent, a new entry into marriage may not be prohibited, nor may a new marriage be declared annulled solely because the decision is not recognized according to the personal status law of one or both of the betrothed or spouses. This applies by analogy in the case of a declaration of death or a proof of death proceeding.

Personal Legal Effects of Marriage

  • (1) The personal legal effects of a marriage shall be judged

    • according to the personal status law which the spouses have in common, and, in its absence, according to the last common personal status law of the spouses, provided one of the spouses has retained it;

    • otherwise, according to the law of the state in which both spouses have their habitual residence, and, in its absence, according to the law of the state in which both spouses had their last habitual residence, provided one of them has retained it.

  • If a marriage has not become effective according to the law designated in para. 1, but has become effective for the jurisdiction of Austrian law, the personal legal effects shall be judged according to Austrian law. However, if the spouses have a stronger connection to a third state, and according to its law the marriage also produces effects, the law of that state shall be determinative instead of Austrian law.

Marital Property Law

  • Marital property law shall be judged according to the law expressly selected by the parties, and in the absence of such a contractual choice of law, according to the law governing the personal legal effects of the marriage at the time of entry into marriage.p. 2954

Divorce

  • (1) The prerequisites and effects of a divorce shall be judged according to the law governing the personal legal effects of the marriage at the time of the divorce.

  • If according to that law a marriage cannot be dissolved on the basis of the alleged facts, or if none of the connecting factors of § 18 exist, the divorce shall be judged according to the personal status law of the plaintiff at the time of the divorce.

B. Law of Children and Parents Legitimacy

  • The prerequisites for the legitimacy of a child and for the contestation thereof shall be judged according to the personal status law which the spouses had at the time of the birth of the child, or, if the marriage was dissolved prior to birth, that which the spouses had at the time of dissolution. In the case of different personal status laws of the spouses, the personal status law of the child at the time of birth is determinative.

Legitimation

  • The prerequisites for the legitimation of an illegitimate child by a declaration of legitimation shall be judged according to the personal status law of the father; if the application for a declaration of legitimation is made after the death of the father, then, according to the personal status law of the father at the time of his death. If the personal status law of the child requires the consent of the child or of a third party with whom the child has a legal family relationship, that law shall also be determinative to that extent.

Effects of Legitimacy and Legitimation

  • The effects of legitimacy and legitimation of a child shall be judged according to his personal status law.

Illegitimacy and Its Effects

  • (1) The prerequisites for the establishment and acknowledgement of the paternity of an illegitimate child shall be judged according to his personal status law at the time of birth. However, they shall be judged according to a later personal status law of the child if establishment or acknowledgement is permissible according to that law, but not according to the personal status law at the time of birth. The law according to which paternity was established or acknowledged shall also be determinative for its contestation.

  • The effects of the illegitimacy of a child shall be judged according to his personal status law.

  • The claims arising from pregnancy and delivery which the mother has against the father of the illegitimate child shall be judged according to the personal status law of the mother.

Adoption

  • (1). The prerequisites for adoption and for the termination of an adoptive relationship shall be judged according to the personal status law of each of the adoptive parents. If the child lacks legal capacity, his personal status law is determinative only with respect to the consent of the child or that of a third party with whom the child has a legal relationship.

  • The effects of adoption shall be judged according tot he personal status law of the adoptive parent; in the case of adoption by spouses according to the law governing the personal legal effects of the marriage, but after the death of one of the spouses according to the personal status law of the other spouse.p. 2955

C. Guardianship and Curatorship

  • (1) The prerequisites for the institution and termination of a guardianship or curatorship, as well as their effects, shall be judged according to the personal status law of the ward.

  • Other issues in connection with the guardianship or curatorship, to the extent that they involve only its supervision, shall be judged according to the law of the state whose authorities supervise the guardianship or curatorship.

D. Registered Partnership Law

Prerequisites and Effectiveness of Registered Partnership

  • The prerequisites for a registered partnership, its nullity and its dissolution on account of defects in its formation shall be judged according to the law of the state in which it was established.

Personal Legal Effects of Registered Partnership

  • The personal legal effects of a registered partnership shall be judged

  • according to the law of the state in which the registered partners have their common habitual residence, and, in its absence, according to the law of the state in which they had their last habitual residence provided one of them has retained it;

  • according to the personal status law which the registered partners have in common and, in its absence, according to the last common personal statute law of the registered partners, provided one of them has retained it, if the prerequisites for the application of the law specified in point 1 are not present or where this law does not govern the legal effects of a registered partnership;

  • otherwise according to Austrian law; this law is also applicable to the extent the determinative law under point 2 does not govern the legal effects of a registered partnership.

Property Law of Registered Partnerships

  • The property law of a registered partnership shall be judged according to the law expressly selected by the parties, and in the absence of such a contractual choice of law, according to the law of the state in which the registered partnership was established.

Dissolution of Registered Partnership

  • (1) The prerequisites and effects of a dissolution of a registered partnership for reasons other than those stated in § 27a shall be judged

    • according to the law of the state in which at the time of the dissolution the registered partners have their common habitual residence, and, in its absence, according to the law of the state in which they had their last habitual residence provided one of them has retained it;

    • according to the personal status law which the registered partners have in common at the time of dissolution and, in its absence, according to the last common personal statute law of the registered partners, provided one of them has retained it, if the prerequisites for the application of the law specified in point 1 are not present or if the registered partnership cannot be dissolved under this law on the basis of the alleged facts;

    • otherwise according to Austrian law; this law is also applicable if, on the basis of the alleged facts, the registered partnership cannot be dissolved under the determinative law provided by point 2.

Chapter 4 Inheritance Law

Succession upon Death

  • (1) Succession upon death shall be judged according to the personal status law of the decedent at the time of his death.

  • p. 2956If a probate proceeding is carried out in Austria, the acquisition of the inheritance and the liability for debts of the estate shall be judged according to Austrian law

  • If according to the law designated by § 28, para. 1, the estate is without heir or would escheat to a territorial authority as its statutory heir, that law shall be replaced in each instance by the law of the state in which the assets of the decedent are located at the time of his death.

Validity of a Disposition Mortis Causa

  • (1) The testamentary capacity and the other requirements for the validity of a disposition mortis causa, an inheritance contract, or a contract renouncing the right to inherit, shall be judged according to the personal status law of the decedent at the time of the legal act. Were that law to preclude validity, but the personal status law of the decedent at the time of his death to accord it, the latter shall govern.

  • For the renunciation or cancellation of these legal acts, para. 1 applies by analogy.

Chapter 5 Law of Property

General Rule

  • (1) Acquisition and loss of property rights in corporeal things, including possession, shall be judged according to the law of the state in which the things are located at the time of completion of the factual situation underlying acquisition or loss.

  • The legal classification of things and the content of the rights referred to in para. 1 shall be judged according to the law of the state in which the things are located.

Relationship to Other Conflicts Rules

  • For property rights in immovables, § 31 shall be determinative even if these rights fall into the application sphere of another domestic conflicts rule.

Means of Transport

  • (1) Property rights in water or aircraft filed or recorded in a register shall be judged according to the law of the registering state, except as provided in para. 2; for railroad vehicles, the law of the state shall be determinative in which the railroad enterprise employing the vehicles in its business has its chief executive office.

  • § 31 shall be applicable for liens created by statute or by legal compulsion or for statutory rights of retention securing claims of compensation for damage caused by the vehicle or expenditures incurred in connection with the vehicle.

Book Entry Securities Collateral

  • (1) The legal nature and the proprietary effects of book entry securities collateral (§ 3 para. 1 point 7 of the Financial Collateral Act – FinSG, BGBl. I No 117/2003) and the acquisition of proprietary rights thereto shall be judged by the domestic law of the state in which the relevant account (§ 3 para. 1 line 8 FinSG) is maintained.

  • The law provided under para. 1 shall also judge,

    • whether a person’s title to or interest in such book entry securities collateral is overridden by or subordinated to a competing title or interest, or a good faith acquisition has occurred;

    • whether and which steps are required for the realisation of book entry securities collateral following the occurrence of an enforcement event (§ 3 para. 1 pont 12 FinSG.

Chapter 6 Rights in Intangible Property

  • (1) The creation, content, and extinction of rights in intangible property shall be judged according to the law of the state in which an act of use or violation occurs.

  • p. 2957For intangible property rights arising from the activity of an employee within the framework of his employment relationship, the conflict rule governing the employment relationship shall be determinative for the relationship between the employer and the employee.

Chapter 7 Law of Obligations

Contractual Obligations

  • (1) Contractual obligations falling outside the scope of application of Regulation (EC) No 593/2008 on the law applicable to contractual obligations (Rome I), OJ 2008 L 177/6, shall be judged according to the law expressly or impliedly selected by the parties (§ 11).

  • If a choice of law is not effectively made for such an obligation, it shall be judged according to the law of the state of habitual residence of the party required to effect the characteristic performance of the contract. If this party concludes the contract as a business entity, the particular permanent business establishment in which the contract was concluded shall be determinative rather than the habitual residence.

  • Where it is clear from all the circumstances of the case that the contractual obligation is manifestly more closely connected with a state other than that indicated in para. 2, the law of this other state shall be applicable.

Enhanced Choice of Law for Certain Insurance Contracts

  • (1) The parties to an insurance contract for which Art. 7 para. 3 of Regulation (EC) No 593/2008 creates choice-of-law options may expressly or impliedly select any other law in the cases set out in Art. 7 para. 3 points a, b and e of the Regulation.

  • If the insurer carries out his activities in the state in which the policy holder has his habitual residence, or if, by any means, he directs his activities to that state or to several states including that state, the choice of law under para. 1 shall not have the result of depriving the policy holder of the protection afforded to him by provisions that cannot be derogated from by agreement by virtue of the law which would have been applicable in the absence of choice.

Non-contractual Damage Claims

  • (1) Non-contractual damage claims falling outside the scope of application of Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations (Rome II), OJ 2007 L 199/40, shall be judged according to the law expressly or impliedly selected by the parties (§ 11).

  • If a choice of law is not effectively made for such an obligation, it shall be judged according to the law of the state in which the damage causing conduct occurred. However, if the persons involved have a stronger connection to the law of one and the same state, that law shall be determinative.

Translation by Michael Friedman, A.B. Economics (USC), J.D. (Berkeley), Max Planck Institute for Comparative and International Private Law, Hamburg (Germany) based on the translation of the Austrian Private International Law Act of 1978 by Edith Palmer printed in (1990) 28 Am.J.Comp.L. 197. The editors wish to thank the editors of the Am.J.Comp.L. for their permission to use the translation.