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28 April 2020

One step towards virtual dispute resolution: hearings via videoconference

Court hearings via videoconference were unimaginable in Austrian courts pre-COVID-19. Witnesses could testify via videoconference in Austrian court proceedings only under certain circumstances, but they still had to attend court – just not the court in which the proceedings were pending.

Instead, witnesses were summoned to the court at their place of residence, where they would testify via videoconference.

The spread of COVID-19 has led to many changes in the way courts operate. If a party must be heard or an oral hearing is absolutely necessary, the courts may conduct hearings via "technical communication media for word and image transmission", i.e. primarily videoconference, but in exceptional circumstances also by phone (read more here). 

Austria's parliament is expected to pass an amendment to the provisions on videoconference hearings, which will allow the courts to hold hearings via videoconference even if these hearings are not crucial. Until 31 December 2020, with the parties' consent the courts may schedule hearings where the parties and their legal counsels will not be in court but attend via "suitable technical communication media for word and image transmission", i.e. videoconference. The parties' consent is assumed unless they object on time (an appropriate deadline will be set by the court). In specific cases the parties' consent is not required; for example, if persons are placed in institutional care.

Witnesses, expert witnesses and translators generally must attend the hearing in court. If the parties agree, the court may order these participants to attend the hearing via videoconference, but they do not have a right to such an order and depend on the parties' and the judge's goodwill. They may only request to attend the hearing via videoconference if they certify that they or persons close to them (private or professional contact) have an increased health risk due to COVID-19.

Insolvency and enforcement proceedings may also be conducted via videoconference if the persons to be questioned or persons entitled to participate do not certify within one week from the day of the service of the summons that they lack the technical means.

The reasoning is that the backlog of hearings would be huge if the courts were to wait until autumn to resume scheduling non-urgent hearings or if they were to only conduct hearings in large courtrooms where distance can be easily maintained. The courts must ensure that judges, parties, witnesses, counsels and other participants keep a suitable distance. That could be a challenge, because large courtrooms are a rarity. This is why the Ministry of Justice decided to take the leap and introduce videoconference hearings.

To be sure there will be technical and practical start-up problems. The legislator anticipated at least a few of these problems and stipulated that parties will not be required to sign the minutes and counsel may submit the list of costs via email or the electronic delivery system. Settling in court will also be possible, but judges either have to make the text visible on the screen (e.g. via screenshare) or read it out loud and clear, with the parties clearly articulating their intention to settle. The latter should not be news.

It remains to be seen what practical obstacles judges, parties and counsels will encounter. But we have no doubt that they can and will be overcome, especially if counsels proactively prepare for videoconference hearings, for example by adapting conference rooms accordingly, as we do at Schoenherr.



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