A guide to the UPC and the UP - Flipbook - Page 308
16-18 Such orders are available according to art.61(1) UPCA where a party “has presented reasonably
available evidence to support the claim that the patent has been infringed or is about to be
infringed” and are available prior to the commencement of the main proceedings. There is no
link between the claim to infringement and the assets that will be the subject of the freezing
order. Unlike art.62(3) UPCA, art.61(1) UPCA makes no reference to the blocking of bank
accounts, and provides only for orders directed to the parties, so it is open to question whether
the provision is broad enough to allow the Court to make such an order. Moreover, because
freezing orders are, under the RoP, considered under the chapter heading “Other Evidence”, 11
it is likely that they were intended to preserve the status quo in relation to evidence and may
well be construed that way by the Court. As noted above in relation to seizures of goods, a
freezing order is an order made against the defendant to prevent the defendant from dealing
with assets or removing property from the jurisdiction. It is not an order which appears capable
of execution by way of involvement of third parties who may be holding or who may have
access to that property or those assets. Once frozen, such assets could conceivably also be
targeted by other procedural means under local law, such as the civil seizure under Dutch law.
It is as yet unclear how such local measures will interact with the jurisdiction of the Court.
Costs
16-19 The general power to make an interim award for costs in any separate proceedings for costs 12
following a decision on the merits is located in r.150(2) RoP which states that:
“the Court may order an interim award of costs to the successful party in the decision on the
merits or in a decision for the determination of damages, subject to any conditions that the
Court may decide”.
This provision clearly provides that an order for costs can be made prior to the final
determination of what costs should be paid by the losing party to the successful party.
However, an interim award of costs is also listed in r.211(1)(d) RoP as one of the provisional
measures that the Court can order. It is therefore intended to give a wider power to the Court
than that found under r.150(2) RoP; the Court having the power to award costs as the result of
an application for provisional measures. The question remains, however, whether r.211(1)(d)
RoP also provides a power for the Court to make a (free-standing) award of costs by way of a
provisional measure. There are other rules (rr.158 and 159 RoP) addressed to security for
costs 13 so that is obviously not the intention. The conclusion could be that the Court may use
interim awards of costs to encourage the parties, in an indirect fashion, to comply with the RoP
and its orders.
Confidentiality
16-20 Unlike the section of the RoP addressing saisies, 14 the section that addresses provisional and
protective measures 15 does not expressly provide for the protection of confidential information
save in respect of protective letters. 16 This reflects the fact that in the context of saisies the RoP
are directed at protecting the confidential information of the respondent/defendant whose
products may be seized or premises may be inspected without prior notice. As regards the
applicant/claimant can protect its own confidential information by making an application under
rr.262A and/or 262 as required. 17
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r.200 RoP.
See chapter 20 (Court Fees and Recoverable Costs) paragraphs 20-91 to 20-102.
See chapter 20 (Court Fees and Recoverable Costs) paragraphs 20-103 to 20-107.
part 2, chapter 4, rr.192 to 198 RoP.
part 3, rr.205 to 213 RoP.
See paragraphs 16-73 to 16-89.
See chapter 12 (Written Procedure) paragraphs 12-47 to 12-49.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 298
