Rule 311 – Insolvency of a party

1. If a party is declared insolvent under the law applicable to the insolvency proceedings the Court shall stay the proceedings up to three months. They may be stayed until the competent national authority or person dealing with the insolvency has decided whether to continue the proceedings or not. Where the competent national authority or person dealing with the insolvency decides not to continue the proceedings, the Court may decide, upon a reasoned request by the other party, that the proceedings should be continued in accordance with the applicable national insolvency law.

2. Proceedings may also be stayed at the request of a temporary administrator who has been appointed before a party is declared insolvent.

3. The claimant may withdraw the action against an insolvent defendant in accordance with Rule 265 and a defendant may withdraw a Counterclaim against an insolvent claimant. Such withdrawal shall not prejudice the action against other parties.

4. If proceedings are continued, the effect of a decision of the Court as regards the insolvent party in the action shall be determined by the law applicable to the insolvency proceedings.

Case Law:

Court of Appeal

IPPT20250723, UPC CoA, Visibly v Easee
Withdrawal of appeal by party consent (R. 265 RoP). A stay of proceedings does not prevent the possibility of withdrawal (R. 311 RoP)

IPPT20250701, UPC CoA, Easee v Visibly
Appeal from  order to provide security stayed in entirety for the time that the CFI proceedings are stayed as ordered by the Hamburg Local Division because of insolvency (R. 295m RoP, R. 311.1 RoP). During the stay of the proceedings Easee is not obliged to provide the ordered security and that during the stay of the proceedings both appeals are devoid of purpose. This justifies the stay of the appeal proceedings. 

IPPT20240226, UPC CoA, Nanostring v 10x Genomics
Stay of proceedings because of insolvency not justified (Article 41(3) UPCA, Rule 311(1) RoP). Party is declared insolvent only after the conclusion of the oral proceedings and the legal dispute is ready for decision. At this stage of the proceedings, the parties have already taken all procedural steps and all costs have already been incurred by the parties. If the decision or order affects the bankruptcy estate, it does not differ from the effect that a decision or order issued before the declaration of bankruptcy would have had. Furthermore, the interest in a timely order weighs particularly heavily in proceedings for interim relief, as is the case here. Furthermore, it leads to a fair balance between the legitimate interests of the parties if events that only occurred after the conclusion of the oral hearing are no longer to be taken into account in the decision-making process. Confirmed by comparable provisions in the national civil procedural law of several contracting member states of the Convention. 

Court of First Instance

IPPT20250801, UPC CFI, LD Paris, NJ Diffusion v Gisela Mayer
Claim against bankruptcy receiver of claimant and intervening party (R. 313 RoP) for payment of provisional costs inadmissible under French law (Article 24 UPCA, R. 8 RoP, R. 311 RoP). That the bodies responsible for the collective proceedings have chosen to continue the proceedings (paragraph 18 of GM's final statement of defence), does not in any way demonstrate the existence of fault. The French Court of Cassation has repeatedly stated that the liability of the bodies involved in collective proceedings is a special liability regime requiring proof of gross and independent negligence. Such fault is characterised, for example, if the insolvency practitioner decides to continue the proceedings when the company's situation is irretrievably compromised and does not seek the cessation of the company's activities or its liquidation

IPPT20250626, UPC CFI, LD Hamburg, Visibly v Easee
If a party is declared insolvent the parties’ representatives are still able to file the stay application under Rule 311.1 RoP. This corresponds with the concept of the RoP that the insolvency of a party does not lead to an automatic stay of proceedings, thus upholding the legal ability of the assigned representative to act before the UPC on behalf of the party. In fact, it is the acting representatives’ obligation to notify the Court of the insolvency. The proceedings are stayed in their entirety, including the proceedings against the company director. A stay according to R. 311 RoP is generally a stay of the proceedings as a whole. Due to the stay of the proceedings the three Defendants are no longer obliged to provide the ordered security (R. 335 RoP).

IPPT20250507, UPC CFI, LD Milan, Ericsson v Asustek

Withdrawal of (i) infringement action against and (ii) counterclaim for revocation by defendant Digital River’s, which is in insolvency proceedings (R. 265 RoP, R. 311 RoP). The Court finds that the principles of fairness and equity require that both Ericsson and Digital River bear their own costs in relation to these withdrawal proceedings. (Article 69(2) UPCA)

IPPT20250404, UPC CFI, LD Lisbon, Ericsson v Asustek - I
Withdrawal of action by party consent against insolvent defendant Digital River Ireland (R. 265 RoP, R. 311 RoP). Extension of time period to lodge Statement of defence with two months from the date of service of amended Statement of claim (R. 23 RoP)

IPPT20240117, UPC CFI, LD The Hague, Plant-e v Arkyne
Ex officio order judge-rapporteur to extend deadline to file Defence in the Counterclaim for revocation and to reunite the claim and counterclaim workflows (Rule 9(3 RoP, Rule 311(1) RoP, Rule 334(a) RoP). Defence to the counterclaim for revocation not filed together with Reply to defence in the claim as required by Rule 29(a) RoP. The apparent misunderstanding of the relevant deadline [for Statement of defence to counterclaim for revocation] by Plant-e Knowledge will in this situation not be held against her; the consequences would be disproportionate.