Key takeaways
The mere allegation that enforcement of foreign judgments at Claimant’s seat in China has proven to be enormously difficult is not sufficient reason to order a procedural security pursuant to R. 158 RoP.
The fact that the Claimant has its registered office in a non-EU/non-EEA country, especially in the People’s Republic of China, cannot be relevant for the decision on an order for security. This would be a form of a priori discrimination, based precisely on the nationality of Claimant’s registered office/domicile, which is not provided for in any source of law (LD Munich CFI_514/2023). Art. 69(4) UPCA and R. 158(1) RoP do not differentiate between parties domiciled within or outside the EU. Therefore, the seat of a party cannot be considered to be the sole basis for an order to provide security for costs (different view, LD Vienna, UPC_CFI_33/2024, ORD_37208/2024).
The LD Hamburg does not share the opinion of the LD Munich (CFI_425/2024, ACT_42211/2024) in a parallel action, that if a country is involved, like the People’s Republic of China, that fails to fulfil its obligations under the Hague Service Convention, nevertheless it has ratified it, it has to be assumed that an order for reimbursement of costs by the UPC may not be enforceable in this country or just in an unduly burdensome way.
Division
LD Hamburg
UPC number
UPC_CFI_429/2024
ORD_55997/2024
Type of proceedings
Reuquest for procedural security pursuant to R. 158 RoP
Parties
CLAIMANT and respondent
JingAo Solar Co., Ltd.
DEFENDANTS and applicants
1) Chint New Energy Technology Co., Ltd.
2) Astroenergy Europe GmbH
3) Astroenergy GmbH
4) Astroenergy Solarmodule GmbH
5) Astroenergy Solar Netherlands B.V.
6) Chint Solar Netherlands B.V.
Patent(s)
EP 4 092 759
Body of legislation / Rules
Rule 158 RoP, Art. 69(4) UPCA
