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Austria: Proving Foreign Law

(Nov. 2, 2007) In a recent decision, the Austrian Administrative Courts reiterated that the parties in administrative proceedings may have an obligation to prove foreign law, if finding the foreign law would be burdensome for the deciding Austrian agency. The latest of these decisions was issued by the Austrian Administrative Court on May 23, 2007 (Verwaltungsgerichtshof [VwGH] docket No. 2006/13/20074), and it was followed by the deciding agency, an independent "finance senate" (Unabhängiger Finanzsenat), on September 28, 2007 (VwGH, Sept. 28, 2007, JUSGUIDE 2007/42/385, available at RDB legal data subscription database). In its 2007 decision, the Administrative Court relied on a preceding case of 2006 (VwGH, Sept. 12, 2006, docket No. 2003/03/0035).

Requiring the parties to prove the foreign law is somewhat unusual in Austria, where the principle of jura novit curia (the authorities know the law) generally prevails for the finding of foreign law. According to section 4 of the Austrian Conflicts Code (Internationales Privatrechtsgesetz, BUNDESGESETZBLATT No. 304/1978, §4), foreign law is to be ascertained ex officio, while the assistance of the parties or of expert witnesses is permitted.