Development of the Аustrian competitive process in the 18-19th centuries

Abstract

By the 18th century, the first codified acts of general territorial effect a aimed at regulating the competition process appeared in Austria, in particular, the Allgemeine Konkursordnung (Competition Statute of 1781) and the Allgemeine Gerichts-und Konkursordnung (Judicial Statute of 1781).
 It is argued that in the 18th century, the Austrian legislator considered it necessary to observe the principle of the unitary nature of the competition process, which was reflected in § 6 of the Competition Statute of 1781 and § 74 of the Judicial Statute of 1781, according to those norms all cases in which the debtor acted as a party, after the opening of the competition in relation to the debtor were referred to the court, which is considering the case of competition.
 It has been established that the Judicial Statute of 1796, which was adopted for Western Galicia, introduced the necessity of non-payment of the debtor in order to open proceedings at the initiative of creditors, in particular, the opening of the competition was allowed only in case of a critical situation.
 It was revealed that the procedure of amicable liquidation, which was provided by the Austrian competitive legislation of the 19th century, is a prototype of the modern institution of a pre-trial sanitation, namely: both institutions take place before the beginning of the competitive process; there is a common goal - to restore the debtor's solvency and repay the existing debt before the start of the competitive process; certain classical means and measures of the competitive process are used; in both cases, the legislator requires the presence of such a circumstance as the profitability of the pre-trial procedure for creditors; the final result is a special type of agreement approved by the court; in order to achieve the set goal, the legislator assumes the limitation of the creditors' will.
 It is substantiated that in the 19th century in the Austrian Empire, the modern institution of the cross-border bankruptcy was born, in particular, the provisions of the Competition Statute of 1868 introduced the classical foundations of the international cooperation in the bankruptcy (insolvency) procedure based on the principle of reciprocity between national judicial institutions and foreign institutions by providing the latter with judicial assistance in the debtor’s property disposal and vice versa.