UPC Delays Due to Difficulties in Serving Proceedings Under the Hague Service Convention
Summary
Serving proceedings out of the jurisdiction in which they have been issued can be a time-consuming exercise. Two recent decisions of the UPC’s Munich Local Division concerning service of applications for preliminary measures in related cases between Air Up Group GmbH (the German Applicant) and Guangzhou Aiyun Yanwu Technology Co., Ltd (the Chinese Defendant) illustrate the nature and extent of delays that can occur when serving under the Hague Service Convention (HSC).
In the instant cases, the applications for interim measures were filed on 27 December 2023. The Orders of the Court finding that good service had been effected were made nearly one year later on 9 December 2024.
Applicants for provisional measures against entities outside of the EU where service may be problematic may in future wish to consider requesting an order on provisional measures without hearing the defendant under RoP Rule 212.1, thereby circumventing the need for service.
Brief summary of the HSC framework and the RoP
Rule 274.1(a)(ii) of the RoP provides that service outside of UPC contracting Member States may be effected by the UPC Registry under the HSC. Both China and all Member States of the EU are signatories to the HSC. Article 5 of the HSC permits “formal service” and voluntary “informal service”.
Under the HSC, to effect formal service, the competent authority of the originating state (here, the UPC Registry) forwards the relevant documents to the designated Central Authority of the receiving state (here, the International Legal Cooperation Center, Ministry of Justice of China; ILCC). The ILCC then issues a certificate once service has been effected. Informal service can be effected (by the UPC Registry) by directly delivering documents on the party to be served if it voluntarily accepts such service, unless such service is incompatible with local law.
Article 15 of the HSC provides that a Court may give judgement even if no certificate of service is received from the relevant Central Authority (i.e., here, the ILCC) if: the relevant document was transmitted by a method provided for by the HSC; six months or more has elapsed since transmission (and the Court thinks the period adequate); and despite reasonable efforts to obtain it, no certificate of service has been received.
On the other hand, RoP Rule 275.1 provides that where service could not be effected, “the Court may permit service by an alternative method or at an alternative place”. Further, under RoP Rule 275.2 “the Court may order that steps already taken to bring the Statement of claim to the attention of the defendant by an alternative method or at an alternative place is good service.”
Attempts made by the UPC Registry
In the two cases, attempts were made by the UPC Registry under RoP Rule 274.1(a)(ii). Common facts to the two cases included:
- In February 2024, the UPC Registry twice asked the Defendant (using email contact details from pre-litigation correspondence) if voluntary informal service by email would be accepted. The emails were unanswered.
- On 24 May 2024, the UPC Registry posted the requisite documents and translations to the ILCC (the delay in posting was apparently due to difficulties in getting the required translations). However, by the time of the hearing before the Munich Court, the only information received from the ILCC in response to the UPC’s enquiries was that the documents had been submitted to the Chinese Supreme Court for further processing.
The Court’s ruling
The Court observed that consent to informal service could not be obtained, and formal service had not been effected. It went on to hold that the conditions of HSC Article 15 had been fulfilled. In particular, it considered that six months since transmission of the relevant documents was adequate in the two cases for the following reasons: -
- each proceeding concerned an application for preliminary measures and thus constituted an urgent matter;
- in other reported cases drawn to the attention of the Court, the ILCC had not forwarded requests or had objected to, and returned, them; and
- every reasonable effort had been made to obtain a certificate of service from the ILCC.
The Court ruled that, if an attempt under RoP Rule 274 fails and service by an alternative method, or at an alternative place, is neither possible nor reasonable, the Court may order that an unsuccessful attempt under Rule 274 constitutes good service. So, in the two cases before the Court, such an order was made.
Is there a solution?
It is important to note, as observed by the Court, that service can be waived if the Court orders provisional measures without the Defendant being heard. RoP Rule 212.1 provides for such a hearing particularly where any delay is likely to cause irreparable harm to the applicant or there is a demonstrable risk of evidence being destroyed.