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UPC – ICPillar v. ARM and others / suspensive effect / expedition of appeal

03 Jul 2024

Graham​​​​ Burnett-Hall


ICPillar LLC v. ARM Limited and others, UPC Court of Appeal, 19 June 2024, Reference numbers: UPC_CoA_301/2024; APL_33746/2024; App_35055/2024

Order pursuant to R. 223 RoP (suspensive effect) and R.9.3(b) RoP (expedition of appeal)

ICPillar had commenced infringement proceedings against ARM. ARM filed an application under R.158.1 RoP requesting that ICPillar provide security for ARM’s legal costs and other expenses. The CFI granted ARM’s application. ICPillar appealed and further requested that the appeal should have suspensive effect, alternatively that the appeal be expedited.

Art. 74 UCPA stipulates that an appeal shall not have suspensive effect, unless the CoA decides otherwise following the motivated request of one of the parties. The CoA noted that R.223.5 RoP (no suspensive effect for an appeal of an order pursuant to R.220.2, R.220.3 or 221.3) was inconsistent with this. R.1.1 provided that in the event of a conflict between the UPCA and the RoP, the UPCA provisions shall prevail. Accordingly the CoA held that it was possible to grant suspensive effect to an order pursuant to R.220.2 RoP, notwithstanding R.223.5 RoP.

However, given the clear principle underlying Art. 74(1) UPCA and R.223.5 RoP, that CFI proceedings should as much as possible continue unhindered by any procedural appeals, the CoA should only give suspensive effect to appealed orders under “exceptional circumstances”. For example, suspensive effect could be appropriate if otherwise the appeal would become devoid of purpose or ineffective.

In the circumstances of this case, the CoA decided that giving suspensive effect to the CFI order was not appropriate. That order required ICPillar to deposit an amount of €400,000 at the UPC bank account or to provide a bank guarantee for that amount. ICPillar had argued that having to provide security would represent an undue economic burden but had neither stated that it could not comply with the order, not that complying with it would in fact lead to extreme detriment.

As for expedition, the CoA did not consider that the circumstances of the case were of such an urgent nature that the interests of ICPillar outweigh the interest of ARM and the principles of due process. The request for expedition was therefore rejected.

The order can be read here in full