In the aforementioned decision, the UPC LD Munich ruled that plaintiffs domiciled in the People’s Republic of China must provide the defendants with adequate security for the costs of the proceedings.
It is true that plaintiffs domiciled outside the European Union cannot in principle be required to provide security for legal costs because this would otherwise constitute discrimination. However, the question must be answered as to whether the financial situation of the plaintiff gives rise to justified and factual concerns that a possible decision on costs may not be recoverable and/or that there is a probability that a possible decision on costs by the Unified Patent Court cannot be enforced or can only be enforced with disproportionate effort.
It is not only the experience of European national courts (e.g. Higher Regional Court Munich, GRUR-RR 2020, 511), but also of the Unified Patent Court (e.g. LD Mannheim, UPC_CFI_332/2024), that requests for service from the Chinese authority in many cases are either not forwarded at all or objected to and returned. In UPC_CFI_508/2023 and UPC_CFI_509/2023, service of applications for provisional measures was unsuccessful, although the application could be served on the competent Chinese authority and the court registry was in e-mail contact with the competent Chinese authority on this matter. However, the Chinese authority did not process the service for more than six months without any apparent reason.
With regard to a country that fails to fulfil its obligations under the Hague Service Convention, 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.
It is therefore to be expected that Chinese plaintiffs will generally have to provide security for legal costs (as with the national courts) with the UPC as well.
