A guide to the UPC and the UP - Flipbook - Page 481
to be intended for the proceedings, it would seem that it has to remain in the custody of the
Registrar until the Court has decided in the main proceedings whether or not it infringes.
23-28 Representatives also enjoy immunity for words spoken or written by them concerning the
actions of the parties when appearing before the Court or before any judicial authority when
executing letters rogatory. 47 Representatives are also entitled to travel in the course of duty
without hindrance. 48 It is questionable whether these rights can be effectively guaranteed by
the RoP. It would seem that effective immunity can only be awarded by an international
agreement. The Protocol on Privileges and Immunities 49 does not, however, cover the rights
of representatives.
23-29 Since these privileges and immunities are granted to representatives exclusively in the interests
of the proper conduct of proceedings, the Court can waive such immunity if the representative
is guilty of conduct which is contrary to the proper conduct of proceedings. 50
“Without Prejudice” Privilege
23-30 In common law jurisdictions “without prejudice” privilege refers to the exclusion or
inadmissibility in evidence of communications aimed at settlement of a dispute. The RoP
provides such protection for negotiations in r.11(3) RoP. Except for the purpose of enforcing
the terms of a settlement agreement “no opinion expressed, suggestion made, proposal put
forward, concession made or document drawn up for the purposes of settlement may be relied
on as evidence by the Court or the parties in proceedings before the Court or any other court”
unless expressed to be made on an open basis and freely disclosable to the Court or any other
court. For further discussion on this topic see chapter 22 (Settlement and the Patent Mediation
and Arbitration Centre).
Privilege Against Self-incrimination
23-31 Whilst art.59 UPCA makes it clear than an order to produce evidence shall not result in an
obligation of self-incrimination, the implementation of that provision in relation to orders to
produce evidence is ambiguous. It appears that the term “self-incrimination” contained in
art.59(1) UPCA is limited to criminal proceedings and only applies to criminal prosecution under
applicable national laws. It remains to be seen whether this will cover:
– Only the laws of the Contracting Member State where the division hearing the case
is located;
– The laws of any Contracting Member State; or
– The laws of any country, whether it is a Contracting Member State or not.
23-32 However, even if the privilege is limited to the first or second option, the risk of selfincrimination under foreign law may still be a factor which the Court takes into account
when deciding whether and on what terms an order should be made.
23-33 It remains to be seen whether the privilege will apply to a corporate entity as it does to
individuals. The right to a fair trial under art.6 European Convention on Human Rights
(which is often invoked as the basis for a privilege against self-incrimination) also extends
to corporate entities.
47
48
49
50
r.289(1) RoP.
r.289(3) RoP.
Available at https://www.unified-patent-court.org/sites/default/files/ppi_final_ii_en_clean.pdf [Accessed 14 April 2023].
rr.289(4) and (5) RoP.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 471
