Chint New Energy Technology & Ors v JingAo Solar (UPC_CoA_431/2025)
Decision date:
09 July 2025
Osborne Clarke summary
- In a second set of proceedings concerning JingAo and Chint, this time in the Hamburg LD, JingAo commenced infringement proceedings relating to its patent for a solar cell (EP 759) against Chint and the other defendants.
- Chint lodged an application for security for costs, but this was dismissed by the judge-rapporteur of the Hamburg LD. Chint requested a review of this order, but this was dismissed by the panel of the Hamburg LD. The panel was of the opinion that Chint had failed to present concrete evidence that could support its allegation that enforcing a cost order in China would be impossible or unreasonably burdensome. The panel noted that the Hamburg LD has no experience in enforcing costs decisions in China and the experience of the national courts was not sufficient to prove Chint's allegation.
- Chint lodged an appeal against the panel's order, requesting that the Court of Appeal revoke the order and order JingAo to provide security for costs.
- The Court of Appeal granted the appeal, holding that the Hamburg LD had "exceeded the boundaries of its discretion" under Article 69(4) UPCA and Rule 158 RoP in finding that Chint had not presented sufficient evidence to support its allegation that enforcing the cost decision against JingAo would be unduly burdensome.
- In particular, the finding that (due to the recent establishment of the UPC) there is currently no experience with enforcing costs decisions in a particular country does not rule out the possibility that enforcing a cost decision in that country may prove to be impossible or unduly burdensome. The Court of Appeal held that JingAo having its registered office in a country outside of the EU or EEA was a relevant factor as there may not be the same guarantee of recognition and enforcement of judgments.
- The Court of Appeal also found it persuasive that Chint had presented evidence that enforcement might be burdensome in practice because there have been a number of UPC cases where the competent Chinese authority has failed to serve documents despite the UPC having fulfilled the formal requirements under the Hague Service Convention. JingAo was unable to present any cases where the UPC had been able to successfully serve documents in China. Taking into account the difficulties faced by member states party to the UPCA in serving documents in China, the Court of Appeal held that Chint had sufficiently substantiated its allegations.
- As such, the Court of Appeal revoked the Hamburg LD's order and ordered JingAo to pay €200,000 as security.
Issue
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