How are commercial proceedings commenced? Is service necessary and, if so, is this done by the court (or its agent) or by the parties?
Litigation & Dispute Resolution
Commercial disputes are initiated by the lodging of a statement of claim to the district court and payment of the registration fee, SEK 2,800 for the year of 2018. Service is necessary in litigation and it is essentially the court’s responsibility to serve the defendant. Courts have efficient serving possibilities and are generally expedient at serving. However, a party is permitted to serve its counterparty where permission has been granted by the court (which it normally is upon request).
Usually, once the claim is filed, the counterparty is summoned to challenge it. The summons is served by the court by postal delivery or by an enforcement agent if postal delivery was not effective. However, in certain lawsuits (Injunctions or Enforcement Proceedings) and depending on the circumstances, the summons may only take place later in the process.
Pursuant to Article 42 of the Civil Procedures Law, a claim is brought to the court at the request of the plaintiff by submitting his statement of claim with what is known as the Case Management Office or by the electronic registration thereof.
The statement of claim must contain certain data including:
A. The plaintiff's name, title, identity card number, if any, profession, domicile, workplace and his representative's name, title, identity card number, if any, profession, domicile, workplace and postal address, fax number or email. If the plaintiff has no domicile in the state, he shall designate an address for service or notification.
B. The name of the defendant, his title, identity card number, if any, profession, domicile or address of service, workplace and telephone number and his representative's name, title, profession, domicile, workplace if he works for others. In case that the defendant or his representative have no known domicile or workplace, the last domicile, residence, workplace, postal address, fax number or email shall be mentioned.
C. Subject of the case, requests and supporting documents.
D. Date of submitting the statement of claim to the Case Management Office.
E. The court to which the case has been brought.
F. The signature of the plaintiff or his representative.
Once the case has been reviewed and the court fees paid, the court allocates a case number and schedules a date for the first hearing which is usually after 10-14 days, and then notifies the defendant/s.
This means that service or notification is necessary.
Notification is made pursuant to a party's request or the court's order through a Court Bailiff. However, the court may also authorize the plaintiff or his representative to notify, and notification may also be made by third party. Such as a courier company.
If the Court Bailiff or the party carrying out the notification fails to notify, he shall convey this to the Case Management Office or a competent judge as to order the appropriate notification method.
Notification of a party is very important and if not carried out properly and a judgment is issued in absentia, this could mean the invalidity of the judgment.
Having said that, notifying a party is not always a simple exercise and may significantly delay procedures.
If the address of the defendant as submitted by the plaintiff at the time of filing the statement of claim is not accurate, the court will order investigating the address from the relevant authorities such as the immigration, the telecommunication companies, the water and electricity authority, the Road and Transportation authority, the Economic Department and the free zones in case of a company.
If after carrying out all means of investigating a party’s address the same was not located, the court will order notification by publication in the newspapers.
Actions are commenced by filling a claim with the Commercial Court or the appropriate specialized tribunal. The Commercial Court and most of the tribunals require claims to be filed online.
The normal method of service is through the court, but the claimant’s attorney may apply to carry out service in order to speed up the process. Service by electronic means and registered mail has been approved and may be implemented in the near future.
Commercial proceedings are commenced either by a complaint to the conciliation board or a writ of summons to the district court. The complaint has to be in writing, but a writ may also be sent electronically to the party gateway that most district courts are a part of. The complaint or writ is then served by the conciliation board or the district court on the defendant along with an order to give notice of intention to defend.
In federal court, a lawsuit is commenced by the filing of a complaint with the court. The plaintiff (or its agent) must also serve a copy of the complaint, along with a summons, on the defendant. In most circumstances, the plaintiff will serve the complaint on the defendant directly, rather than through an attorney’s office.
The process for commencing commercial disputes in state courts is determined by each state’s procedural rules but is generally consistent with the federal procedure, as the majority of states have adopted all or substantially all of the FRCP.
In order to avoid dismissal, the complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief; detailed factual allegations are generally not required. However, for commercial disputes alleging fraud or mistake, a heightened pleading standard applies and a plaintiff must plead with particularity the circumstances constituting fraud or mistake.
Proceedings are initiated by submitting a statement of claim (“Klage”) directly to the court of first instance. An action is officially pending upon receipt by the competent court. Nowadays, claims (and other documents) are usually submitted to the competent court via an electronic communication system as legal professions are obliged to use such system.
A claim has to be written in the German language and needs to contain the following minimum requirements:
- name and address of the court to which the claim is submitted;
- names and addresses of the defendant(s)/the parties and their legal representatives (if known);
- the matter and amount in dispute;
- the relief sought and the facts on which the relief sought is based.
A statement of claim may, but does not have to contain legal reasoning and it is not required to present evidence at this state.
After having received a claim, the court will examine whether the procedural minimum requirements for the hearing of a claim are met, and if so, will forward the claim to the defendant. Within Austria, claims are served by the court, usually via registered mail (or, once represented by a lawyer, via the mandatory electronic communication system that connects courts and law offices). Service outside of Austria is either governed by the EU regulation on the service of documents in civil or commercial matters (within the European Union) or by bilateral or multilateral agreements (outside of the European Union).