26.09.2024
Die Compliance-Richtschnur: Vergaberechtliche Grundsätze im Überblick
Herbst/Mayer, Die Compliance-Richtschnur: Vergaberechtliche Grundsätze im Überblick, in Hofbauer/Heid/Beham, Handbuch Vergabe-Compliance (2024)
Practice Areas
Specialists with foresight.
Banking and Capital Market Law, Financing
We offer legal advice to national and international financial institutions, public and private pension funds, other funds and all kinds of external, institutional providers of equity and investors. We advise on a wide range of external financing packages including securitisation operations, acquisition, project and asset financing and debt rescheduling as well as on detailed issues with regard to banking and securities supervision.
We are proven experts in Austrian capital market law and represent both issuers and issuing banks in national and international issues of shares and bonds. In addition to drawing up tender and bid documentation we are particularly specialised in negotiating mandate and takeover agreements, comfort letters as well as advice in the fields of corporate governance and compliance.
Commercial.
Contracts and general terms and conditions – the experience of our experts in the field of litigation teaches us that their careful drafting is essential for the smoothest possible economic activity. What is the best contract worth if it contains a jurisdiction clause or a court judgment that can not be enforced? Unfortunately, it is too late then to wish for an arbitration clause.
We are happy to advise on all commercial contracts – from sales contracts, to licence agreements, to all manner of service contracts and the underlying bespoke terms and conditions tailored to their business model. We understand your commercial needs and the legal framework.
Corporate, M&A and Private Equity.
Our clients in the field of company law include listed stock companies, small and medium-sized enterprises and start-ups. For this reason our fully comprehensive range of consultancy services extends from matters arising from stock company and corporation legislation to all measures in regard to company structure right down to start-up businesses. We also assist our clients in their preparation and implementation of general meetings, in executive and supervisory board matters and in all matters related to executive liability. We represent them in the event of actions for annulment, squeeze-outs and all kinds of restructuring. Our lawyers are on the boards of private trusts and make full use of this valuable experience when responding to any questions in regard to foundation law.
We advise national and international companies, financial institutes as well as funds in the case of national and cross-border M&A, private equity and venture capital transactions. Our firm also supports clients in the event of public or private takeovers, the acquisition of stakes in companies, privatisations, leveraged buyouts, the setting up of funds as well as the constitution of consortia, joint ventures and strategic partnerships.
Data Protection Law.
We comprehensively advise our clients in data protection matters, including the representation before the Data Protection Authority and the courts. We support our clients regarding the implementation of data protection projects, the establishment of legal opinions on questions regarding data protection law, the establishment and review of the documentation as required by the GDPR, the drafting of agreements with processors, the outsourcing of services in third countries, as well as in the context of drafting data privacy information and consent documents, the preparation and implementation of compliance rules regarding data protection within a company and the use of employee data within the company and within a group of companies including the preparation and negotiation of plant agreements.
Fintech/Crypto Assets/NFT.
Applicationsof blockchain technology, such as crypto assets, offer a wide range of applications and activities, from tokenisation through to the metaverse.
In line with our credo “Always curious”, we advise companies and private individuals in connection with all legal issues in this area and have many years of experience in this field.
Our law firm has an interdisciplinary team of experts from various legal fields who not only have extensive legal knowledge, but also technical expertise in the field of blockchain technology. We understand the underlying technical aspects of blockchain and can therefore provide our clients with comprehensive legal and regulatory advice and solutions that are specifically tailored to the requirements and challenges of this technology and the products based on it.
In addition, we offer expertise in data security and data protection issues in connection with blockchain applications. Our aim is to open up opportunities for our clients and help them to maximise the benefits of blockchain technology.
Employment and Social Security Law.
We provide advice, guidance and support to employees and employers. Our clients include national and multinational corporations as well as small and medium-sized enterprises together with their employees and managers. Our expertise covers all aspects of individual and collective employment and social legislation.We offer advice on the drawing up of contracts and agreements, on the structuring of working conditions, on the establishment of collective bargaining agreements and on the implementation of management and employee profit-sharing schemes. A further focus of our work is the advice we give on employment law in the case of mergers and acquisitions. If necessary, we support and represent our clients in disputes before the courts.
MMag. Anna Diensthuber
Mag. Julia Hubmayer
Dr. Christoph Ludvik
Insurance Law.
We advise domestic and foreign insurance companies on all matters relating to insurance operations in Austria. This includes the examination and support in meeting the necessary requirements for operating in Austria, the preparation of sales documentation (templates for policies, IPID, general conditions, etc.) in all lines of business, legal support in the settlement of insurance contracts as well as support in regulatory issues.
In close cooperation with other experts in our law firm, we are regularly commissioned by insurance companies to handle claims (especially in complex liability cases and claims where D&O insurance exists) and advise globally active insurers on all aspects of the conclusion of W&I insurance policies.
Intellectual Property & Unfair Competition.
We represent our clients in all intellectual property matters: We advise on industrial property rights (such as trademarks, designs, patents), on copyright, on issues related to the protection of trade secrets and on unfair competition. We advise and support our clients in obtaining intellectual property rights (for example, in trademark and design applications), in contractual matters and in the enforcement of their intellectual property rights and/or claims under the Unfair Competition Act in and out of court.
A particular focus of our practice is advice regarding the drafting and negotiation of licence agreements. Another focus of our work is advising on the design of our clients’ market presence, their advertising campaigns and PR activities as well as providing support in disputes with competitors or interest groups on unfair competition (UWG) matters and in cases of alleged infringements of advertising restrictions.
We also advise clients on many related legal areas, such as in data protection and IT law.
IT & Technology.
We advise our clients in a wide range of IT law matters, in particular in the handling of large IT projects or in the drafting and negotiation of IT contracts, such as software licence agreements, maintenance and outsourcing or source code escrow agreements. We provide support on all legal issues relating to e-commerce and website presence as well as related consumer protection or data protection issues. Another focus of our advice concerns legal questions regarding artificial intelligence applications. We are also regularly entrusted with telecommunication and media law mandates. In cases of disputes, we represent our clients both in and out of court.
Furthermore, we have extensive experience in advising technology start ups (inter alia in the areas of AI, metaverse, SaaS solutions, blockchain, quantum technology, aerospace) and support them in their foundation, in the course of financing rounds, in the drafting and negotiation of their essential contracts, in regulatory matters as well as in all other issues concerning their market presence.
Life Sciences.
We have a long-standing and outstanding expertise in advising biotech companies and support them in every phase of their existence, for example, in their formation, financing rounds, drafting and negotiating their essential agreements, such as collaboration and licensing agreements, material transfer and non-disclosure agreements, regulatory issues, as well as all other aspects of their market presence. In addition, we advise strategic and financial investors on all matters relating to the financing or acquisition or exit of shares in a biotech company.
We assist national and international companies in all areas of medicinal products and medical device law as well as food law and advise in particular in connection with the design of their market presence, their advertising campaigns and other PR activities. Furthermore, we support our clients in disputes with competitors or interest groups, e.g. due to alleged infringements of advertising restrictions, in particular of the law on medicinal products, medical devices and food law.
In the field of medicinal products law, we advise our clients not only on regulatory issues but also on all questions of reimbursement rights, in particular in negotiations with social insurance institutions and before the relevant authorities and (administrative) courts.
Furthermore, we support our clients in the drafting and negotiation of R&D agreements, cooperation and licensing agreements as well as regarding all agreements for the conduct of clinical trials.
Litigation & Arbitration.
Our experts for adversarial proceedings and conflict resolution are responsible for court and arbitration proceedings, for mediation and negotiations – both in Austria and at an international level. We always strive to achieve a successful resolution of the conflict on the part of the plaintiff and on the part of the defendant.
Whether or not a dispute is settled in court or out of court, we devote all our attention to the challenge in question with the utmost care, precision and a systematic breakdown of the facts. We recommend out-of-court settlements whenever this is in the interest of our client. In all cases our overriding priority is to protect the interests of our clients and to provide an accurate, continuous assessment of the costs, chance of winning and risks of a law suit.
Merger control, anti-trust and investment control.
Our expertise includes merger and investment control as well as antitrust law. We assist our clients in the planning, coordination and execution of national and international M&A transactions including the completion of regulatory approvals. In this context, we have many years of experience in representing clients before the Austrian Federal Competition Authority and the European Commission in the course of merger notifications, sometimes in cooperation with our foreign partner law firms.
Regarding foreign direct investments in Austria, we also advise and represent our clients in investment control law approval proceedings before the Federal Minister for Digitalisation and Economic Location and the European Commission. Furthermore, we offer individual legal and strategic advice on a wide range of state aid and antitrust matters.
Public commercial law.
Our lawyers are experts in selected fields of Austrian public law and European Community law. In particular, these include questions related to energy and environmental legislation as well as hospital law, state liability and state aid legislation. Furthermore, we offer advice to contracting authorities and bidders in complex matters pertaining to awarding law and are regularly entrusted with major public-private partnership projects such as the building of hospitals and health spas.
Our lawyers advise and defend accused parties and companies in complex commercial criminal matters. In particular, these include accusations of fraud, embezzlement, infringements of antitrust and securities legislation, corruption, offences against the environment as well as internal and investigations into violations of supervisory provisions.
Real estate.
We advise and support our clients in regard to real estate transactions, project developments and the utilisation of properties. In addition to structuring and providing support for real estate transactions on behalf of buyers and sellers we also help our clients to make optimum arrangements in regard to financing as well as taxation and company law. Our lawyers’ competencies range from the advice they give on obtaining authorisations under public law to the drawing up of service contracts with planners, architects and building contractors.In particular, the excellence of our services in this field is due to the combination of our project management experience and expertise in real estate law.
Restructuring and Insolvency.
Crises require a clear and structured response strategy. We always pursue a solution-oriented approach in order to provide debtors and creditors alike with the best possible advice on reorganizations, restructurings, refinancing and insolvencies.
Our advisory service covers all forms of complex financial and operational restructuring and insolvency, including the representation of debtors, investors and creditors in restructuring and reorganisation. Furthermore, we support managing directors, management boards and supervisory boards in fulfilling their duties and avoiding liability risks.
Our clients benefit from the involvement of our experts from relevant related practice areas, who have extensive expertise and experience in distressed M&A, debt financing, tax law, real estate, litigation and intellectual property.
Sports.
Our firm combines a deep passion for athletics with unrivaled legal prowess, providing comprehensive representation for athletes, teams, and sports organizations. From contract negotiations and endorsement deals to intellectual property protection and disciplinary matters, our experienced attorneys leverage their extensive knowledge to ensure our clients achieve their goals. Whether you are a professional athlete, sports franchise, or sports-related business, trust Herbst Kinsky to navigate the legal playing field and secure your victory.
Sustainability.
We see ourselves as our expert in all areas of sustainability law and the associated ESG requirements for financial market participants such as insurance companies, investment firms, managers of alternative investment funds etc. and financial advisors.
In this context, we also have extensive experience in advising on the promotion of environmental and social features at the level of financial products as well as sustainable investments.
We also support our clients in structuring and conducting legal reviews in the field of ESG (due diligence).
Tax.
Our tax law experts help Austrian and international clients to structure their business segments – obviously, always in compliance with Austrian and international tax provisions. They offer advice in all matters related to taxation and contributions law including corporation tax, value added tax and the law on fees and charges. We support our clients in all the fields of Austrian and international taxation law for the issue of financial instruments, tax-optimised transactions, complex restructurings and employee-oriented systems. Furthermore, we also offer guidance and advice on tax optimisation for charitable foundations and other not-for-profit organisations.
Venture Capital & Start-up.
We constantly advise both national and international investors (VC funds, family offices, business angels) and start-ups from all industries in connection with venture capital financings. Our expertise also covers the foundation of VC funds and the conception and implementation of innovative financial instruments under consideration of the regulatory framework.
We advise start-ups in the pre-seed, seed and growth stage until the successful exit. We assist our start-ups in all business law related matters of their day-to-day operations. Moreover, we have established the first legal incubator in Austria: HK Incube. Besides start-ups and investors we also advise a number of incubators, funding agencies and start-up associations.