2026-02-18 - CoA - Syntorr Lp v. Arthrex - UPC-COA-0000890/2025, UPC-COA-0000890/2025
- Aktenzeichen:
- UPC-COA-0000890/2025, UPC-COA-0000890/2025
- Datum:
- Spruchkörper:
- Court of Appeal - Luxembourg (LU)
- Art:
- Final Order
- Parteien:
- Syntorr LP v. Arthrex Inc., Arthrex GmbH, Arthrex Distribution Hub EMEA B.V.
Kernaussage: ENGLISH:
2026-02-18 - CoA - Syntorr Lp
v.
Arthrex - UPC-COA-0000890/2025, UPC-COA-0000890/2025
ENGLISH:
"(1) When exercising its discretion under Art. 69(4) UPCA and R.158.1 RoP, the Court must determine, in the light of the facts and arguments brought forward by the parties, whether the financial positionof the claimant gives rise to a legitimate and real concern that a possible order for costs may not be recoverable and/or the likelihood that a possible order for costs by the UPC may not, or in an unduly burdensome way, be enforceable.
(2) A litigation insurance that covers the legal costs of the defendant must be considered when assessing whether the claimant’s financial position gives rise to a concern that a possible order for costs may not be enforceable, or in an unduly burdensome way, by the defendant."
notable
The Court of Appeal set aside the Munich LD's order requiring Syntorr to provide a €2 million bank guarantee as security for costs under R. 158.1 RoP. The CoA held that the CFI erred in exercising its discretion by disregarding Syntorr's litigation insurance with an anti-avoidance endorsement (AAE), which constituted adequate security. The CoA established that when assessing whether to order security under Art. 69(4) UPCA and R. 158.1 RoP, the court must consider the claimant's full financial position including litigation insurance. Since the insurance with AAE provided direct enforcement rights for the opponents and adequate protection through termination safeguards, there was no legitimate concern about cost recoverability.
Stichwörter
ENGLISH:
Security for costs; Financial position of the claimant; Litigation insurance (After The Event insurance) with an anti-avoidance endorsement.