Rule 352 – Binding effect of decisions or orders subject to security

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1. Decisions and orders may be subject to the rendering of a security (whether by deposit or bank guarantee or otherwise) by a party to the other party for legal costs and other expenses and compensation for any damage incurred or likely to be incurred by the other party if the decisions and orders are enforced and subsequently revoked.

2. The Court may upon the application of a party release a security by order.

 

Case Law

 

Court of Appeal

 

IPPT20241029, UPC CoA, Belkin v Philips
Making a decisions or order subject to providing security (R. 352 RoP) requires that the security is ordered at the time of decision or order.
 

Court of First Instance

 

IPPT20241217, UPC CFI, CD Munich, Nanostring v Harvard
Request to release the security rejected (R. 352(2) RoP). The Court has the power to release a security for legal costs and other expenses imposed under Rule 158 RoP on the basis of Rule 352.2 RoP. Despite the absence of a specific provision as part of Rule 158, the Court has the power to release a security on the basis of Rule 352.2 RoP, either directly or, if necessary, by way of analogy. Chapter 6 of the RoP (“Security for Costs”) – in which Rule 158 RoP is placed – does not contain a provision for the release of a security for legal costs and other expenses that has been imposed by the Court on a party. A security should be released when the reasons for imposing the security have ceased to exist. This will generally be the case where a final and non-appealable judgement has removed the possibility of the event for which security was ordered. Further, if the facts and circumstances that led to imposing the security order have materially changed so that the balance of interests is in favour of releasing a security, this can also be a reason to release the security.

 

IPPT20240805, UPC CFI, LD Düsseldorf, Ortovox v Mammut
Security (deposit) to be released when the period for requesting panel review has expired (Rule 333 RoP, Rule 352(2) RoP, Rule 45 Registry Rules). Double security – a deposit and a bank guarantee – can also be the reason and cause for a release decision.