Article 42

Proportionality and fairness

1.   The Court shall deal with litigation in ways which are proportionate to the importance and complexity thereof.

2.   The Court shall ensure that the rules, procedures and remedies provided for in this Agreement and in the Statute are used in a fair and equitable manner and do not distort competition.

Case Law

IPPT20260414, UPC CFI, LD Brussels, GC Aesthethics v Establishment Labs

Order to produce evidence within 21 days – application not premature merely because all parties' arguments have not been finalised. (Article 59 UPCA, Rule 190.1 RoP)The Court must consider the cumulative conditions following from LD The Hague Order of 14 October 2024 (Winnow v Orbisk) when assessing an application to produce evidence.  Condition 4 is assessed on a double level regarding proportionality, equity, and fairness (Article 41(3) , 42 UPCA). Condition 4(a) - the “timing” of the application and considering the stage of the proceedings.[…] And Condition 4(b)- regarding each individual request as a final assessment. Application not premature - as a general principle, once an applicant deems that the conditions are met, it can submit a Rule 190 application at any stage of the proceedings.The grant is based on the position which the defendant will take when complying with the order.

IPPT20250108, UPC CFI, CD Paris, Meril v SWAT
Incorrect citation of the legal grounds does not relieve the Court of its obligation to consider the motion where it is possible to identify the correct legal grounds based on the legal arguments and factual grounds put forward by the applicant in support of the application [Article 42(2) UPCA, Article 76 UPCA].

IPPT20241227, UPC CFI, CD Paris, Microsoft v Suinno - I
The incorrect citation of the legal provisions upon which the application is grounded does not relieve the Court of its obligation to consider the motion where it is possible to identify the correct legal grounds based on the legal arguments and factual grounds put forward by the applicant in support of the application. This is what occurs in the situation at hand.[Article 42(2) UPCA, Article 76 UPCA]

IPPT20240806, UPC CFI, LD Munich, Qufora v Sauer
No waiver translation requirements, given that the panel as a whole lacks the necessary language skills with regard to the original German-language documents (Article 51(1) UPCA, Article 42 UPCA, Rule 7(1) RoP). Art. 51 (1) UPCA is based on the idea of a flexible and efficient procedural organisation, whereby an appropriate balance must be struck between the interests of the parties, taking into account the principle of proportionality (recital 5 of the preamble to the UPCA; Art. 42 UPCA). Whether such a waiver is appropriate is determined by the specific circumstances of the individual case. A comprehensive balancing of interests must take place. In particular, the language skills of the parties and their representatives and the language skills of the panel must be taken into account. The volume, the length or the quantity and the nature of the documents in question and their relevance to the proceedings is also of relevance. Other aspects may also be relevant in individual cases.