air up group GmbH v Guangzhou Aiyun Yanwu Technology Co., Ltd., UPC Court of First Instance, Munich Local Division, 9 December 2024, Reference numbers: UPC_CFI_508/2023, UPC_CFI_509/2023
Summary
In two related decisions, the Munich Local Division has held that a delay of over 6 months in the service of proceedings for the application for provisional measures by the Chinese authorities under the Hague Convention, and where an alternative method of service had been attempted unsuccessfully, justified the granting of an Order pursuant to Rule 275.2 RoP that the steps already taken by the Claimant to bring the applications to the attention of the Defendant constituted good service.
Case Report
Rule 275.2 provides that, “On a reasoned request by the claimant, 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.”
In these proceedings the Claimant had attempted to effect service under the Hague Convention. However, although six months had elapsed, service of the proceedings on the defendant by the competent Chinese authority had not been effected. The competent Chinese authority had only confirmed that the service documents had been submitted to the Chinese Supreme Court for further process. The Claimant had also attempted to effect service by an alternative method by asking a representative of the Defendant whether service of the applications by email would be accepted on a voluntary basis. This request was not answered. Chinese law only allows service of proceedings by email where the recipient consents. The UPC therefore could not permit alternative service by email without the consent of the recipient pursuant to Rule 275 RoP because Rule 275(4) prohibits service in a manner that is contrary to the law of the state where service is to be effected.
However, the Rule 275(2) RoP does permit the UPC to order that the 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. The Court held that the steps already taken by the Claimant in this case were sufficient. Service was to be deemed effective from the date of the Court’s Order.
Finally, the Court noted that there appears to be a gap in the rules of procedure: Rule 275(2) RoP allows the Court to order that steps taken to effect service by an alternative method of service should constitute good service. However, the express wording of the rule does not permit the Court to order that steps taken to effect service by an official method permitted under Rule 274, if unsuccessful, should nevertheless constitute good service. (Rule 274 permits service by any method provided by EU law, the Hague Service Convention or other applicable convention, or through diplomatic or consular channels.)
It is not clear from the wording of the decisions whether the Court considers that it can itself close this gap by also ordering that an unsuccessful attempt of service under Rule 274 RoP shall constitute good service, or whether it merely intended to draw attention to this gap. Consequently, it will be sensible for claimants, who anticipate that they may have difficulties effecting service of proceedings on defendants through official channels, always to also attempt service by a permitted alternative method.
The Orders can be read here and here.
