A guide to the UPC and the UP - Flipbook - Page 391
19-48 In a list which is not exhaustive, 61 the UPCA and RoP specifically mention that the following
orders may be subject to the applicant lodging adequate security (or an equivalent assurance)
intended to compensate the defendant for any prejudice suffered in the event that the Court
revokes the order. The list extends beyond the provisional measures referred to in the
Enforcement Directive 62 and is as follows:
– Orders to produce evidence; 63
– Orders to preserve evidence (saisies); 64
– Orders to inspect premises; 65
– Freezing orders; 66
– Orders for provisional measures; 67 and
– Orders following a decision on the merits. 68
19-49 Where a decision on the merits is made by a local or regional division in bifurcated proceedings
and the revocation proceedings are still pending before the central division, the order can be
made subject to any term or condition, including the provision of security. 69
19-50 The issue of security for preliminary enforcement of a decision only comes into play where the
decision is not final. In general, appeals do not have suspensive effect unless ordered by the
Court of Appeal at the “motivated request” of one of the parties. 70 The Court also has the power
to stay proceedings in the specific circumstances listed in r.295 RoP, but unless the proper
administration of justice so requires, 71 it only has the ability to order a stay pending appeal
where an appeal is brought against a decision or order of the Court of First Instance: 72
– Disposing of the substantive issues in part only; or
– Disposing of an admissibility issue or a preliminary objection.
61
62
63
64
65
66
67
68
69
70
71
72
art.69(4) UPCA refers to “in particular in the cases referred to in Articles 59 to 62”. Further, there are instances where security
may be ordered unrelated to the issue of enforcement, such as where the Court refuses to stay the determination of
damages pending appeal (r.136 RoP).
art.9(6) Enforcement Directive.
art.69(4) UPCA referring to art.59 UPCA.
arts 60(7) and (9) UPCA and rr.196(3)(b) and 196(6) RoP. See chapter 18 (Orders to Produce Evidence including “Saisies”)
paragraph 18-48.
arts 60(7) and (9) UPCA and r.199(2) RoP.
art.61(2) UPCA and r.200(2) RoP.
art.62(5) UPCA and r.211(5) RoP. See chapter 16 (Provisional and Protective Measures) paragraph 16-70.
r.118(8) RoP.
r.118(2)(a) RoP.
art.74(1) UPCA. See chapter 21 (Procedure before the Court of Appeal) paragraphs 21-27 to 21-29.
r.295(l) RoP.
r.295(c) RoP.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 381
