Key takeaways
A defendant company in China cannot, as a starting point, be served a complaint via a company within the same group in a Contracting Member State
Service within the Contracting Member States is governed by R. 270 through 272 RoP. Service outside the Contracting Member States is instead governed by R. 273 and 274 RoP. R. 271.5(a) RoP provides for alternative places of service for a defendant having its registered office in the UPC territory. Therefore, R. 271.5(a) RoP does not apply to defendants having their registered office in China. A group company cannot automatically be seen as a statutory seat, central administration or principal place of business of a defendant company in China, nor a place where such defendant has a permanent or temporary place of business.
Attempts to serve in China by any method provided for by the Hague Convention pursuant to R.274.1(a)(ii) RoP shall normally be made before service permitted by the law of the state where service is to be effected (R. 274.1(b) RoP) or by alternative methods or at an alternative place (R. 275 RoP) is permitted
This reasoning follows from Article 15(2) of the Hague Convention which provides that, as a general rule, an attempt must be made to serve the complaint by any means provided for in the Hague Service Convention before the court allows or orders service by any other means or at any other place.
The Hague Service Convention applies to companies with a registered office in China (R. 274.1(a)(ii) RoP)
Division
CoA Luxembourg
UPC number
UPC_CoA_205/2024
Type of proceedings
Appeal
Parties
Nera Innovations Ltd. (Ireland)
Xiaomi Communications Co., Ltd. (China), Xiaomi Inc. (China), Xiaomi Technology Netherlands B.V. (the Netherlands), Xiaomi Technology Germany GmbH (Germany)
Patent(s)
EP 2 642 632
Jurisdictions
Body of legislation / Rules
Rule 271.5(a) RoP, Rule 274, Rule 275
