Key takeaways
When deciding on a request for security for costs
– failing any guarantees or other special circumstances, it is not relevant whether the claimant belongs to a – financially sound – group of companies. It is only the financial position of the claimant itself that is relevant;
– it is not relevant whether a claimant is willing to reimburse the defendant if a cost order would be issued in favour of the defendant;
– it is also irrelevant whether a cost order in favour of the defendant is to be expected. The Court should not engage in evaluating the likelihood of the outcome of the case;
– it is not required that it is proven that enforcement is impossible. It is sufficient for a defendant to establish that enforcement of a cost order is unduly burdensome. The burden of showing this is on the applicant of an order for security for costs. To this end, the applicant shall not only provide evidence as to the foreign law applicable in the territory where the order shall be enforced, but also its application.
The CoA dismissed Claimant Aarke’s appeal, in particular because Aarke failed to provide sufficient evidence in relation to the application of the applicable law by the courts in Israel. Defendant Sodastream on the other hand, with reference to case law from the Supreme Court, sufficiently substantiated that a cost order issued by the Unified Patent Court was likely to be enforceable in Israel without undue burden. Aarke did not sufficiently dispute this.
Division
Luxembourg Court of Appeal
UPC number
UPC_CoA_548/2024
APL_52969/2024
Type of proceedings
Appeal against an order dismissing Defendants request for a procedural security
Parties
APPELLANT and Defendant before the Court of First Instance:
Aarke AB (Stockholm, Sweden)
RESPONDENT and Claimant before the Court of First Instance:
SodaStream Industries Ltd. (Kfar Saba, Israel)
Patent(s)
EP 1 793 917
Body of legislation / Rules
Art. 69(4) UPCA, Rule 158 RoP
