Court assistance in arbitration: securing evidence under section 602 ZPO
17 August 2026 | Mag. Bernhard Brandauer, Rechtsanwalt
Section 602 ZPO: when an Austrian court may assist with evidence in arbitration and why a party needs the tribunal’s consent.
Court assistance in arbitration matters when decisive evidence requires a judicial act that the arbitral tribunal is not empowered to perform itself. Section 602 of the Austrian Code of Civil Procedure provides a focused route to a state court. This article explains who may apply and which records should be organised before that step.
The narrow question is how state court support can be used without bypassing the arbitration. The provision links assistance to the pending proceedings and requires the tribunal’s consent where a party makes the application.
This is distinct from a later attempt to set aside an award because an evidence request was rejected. The present issue is how to prepare a required judicial step in time while the arbitration is still pending.
Does your evidence route require court assistance?
The short check structures the next preparation step. The result is transmitted only if you actively submit the form.
Has the judicial act that the tribunal cannot perform itself already been identified?
Prepare a focused assistance request
The required judicial step is defined. Consent, evidentiary purpose, procedural orders and complete exhibits should now be reviewed together.
- Secure the tribunal’s consent
- Describe the judicial act precisely
- Document purpose and procedural relevance
Complete the missing basis first
Without clear consent or complete procedural records, a party application may not meet the statutory route. The open point should be resolved before approaching the court.
- Collect all procedural orders
- Clarify outstanding consent in writing
- Match witnesses and documents to the issue
Classify the evidence route
First determine what the tribunal may arrange itself and which step requires judicial authority. Only then can an application under section 602 ZPO be prepared effectively.
- Review the clause and procedural rules
- Rank evidence by relevance
- Secure the arbitration timetable
When state court support is needed
An arbitral tribunal decides the dispute but does not possess every sovereign power of a state court. Section 602 ZPO covers judicial acts that the tribunal is not empowered to perform. This becomes relevant where evidence cannot be obtained through voluntary cooperation alone.
Court assistance is not a second proceeding on the merits. The state court supports a defined procedural step. The evidentiary purpose, requested act and connection to the pending arbitration should therefore be clear.
Who may make the application under section 602 ZPO
The application may be made by the arbitral tribunal, an arbitrator authorised by the tribunal or a party with the tribunal’s consent. A party cannot use the court route independently to bypass the tribunal’s management of the proceedings.
Consent should be documented so that the subject and scope of the intended court step remain traceable. The relevant procedural order and current timetable are equally important.
Attendance and questions during the taking of evidence
Section 602 ZPO permits the arbitral tribunal, an authorised arbitrator and the parties to attend the court’s taking of evidence and ask questions. The judicial act therefore remains connected to the arbitration.
Before the hearing, the participants should define the facts to be proved, the questions genuinely relevant to those facts and how the result will be incorporated into the procedural timetable. Unstructured questions add effort without sharpening the evidentiary purpose.
Classifying cross border court assistance
The provision also allows the Austrian court to request a foreign court or authority to perform the required act. This does not make foreign evidence automatic. The state, evidence, jurisdictional route and timing must be identified early.
Cross border matters require translations, accurate contact details and a realistic procedural schedule. A foreign element discovered too late can place substantial pressure on the planned course of the arbitration.
Distinction from rejected evidence and setting aside
The topic page on preparing arbitration proceedings provides the wider framework for evidence and procedural strategy. The article on a rejected evidence request addresses the later question whether a refusal may support setting aside an award.
Court assistance under section 602 ZPO starts earlier. It enables a judicial act needed for evidence in the pending proceedings. Where urgent preservation is the issue, the separate guidance on interim measures may also be relevant.
Documents needed for legal review
Prepare the arbitration agreement, applicable procedural rules, procedural orders, the evidence request or specific evidentiary purpose, the tribunal’s consent and all available details concerning witnesses, documents or foreign authorities.
Add a short chronology with upcoming deadlines. This allows a review of whether the intended court step fits the legal route, can be obtained in time and remains consistent with the procedural strategy.
Common questions about court assistance
May a party apply for court assistance directly? Yes, but under section 602 ZPO only with the tribunal’s consent. The tribunal or an arbitrator authorised for this purpose may also apply.
May the parties ask questions during the court’s taking of evidence? Yes. The provision allows the parties, the tribunal and an authorised arbitrator to attend and ask questions.
Can assistance also concern evidence abroad? The Austrian court may request a foreign court or authority to perform the act. Whether that route is suitable depends on the evidence and the state concerned.
Next step
Contract, arbitration clause, correspondence and deadlines should be collected. It can then be assessed whether negotiation, preservation or arbitration is central.