1. 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.
2. Division
Luxembourg Court of Appeal
3. UPC number
UPC_CoA_548/2024
APL_52969/2024
4. Type of proceedings
Appeal against an order dismissing Defendants request for a procedural security
5. 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)
6. Patent(s)
EP 1 793 917
7. Body of legislation / Rules
Art. 69(4) UPCA, Rule 158 RoP
2024-11-29 UPC_CoA_548_2024 APL_52969_2024 Download
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
