SodaStream Industries v Aarke (CFI, 6 September 2024)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 6 September 2024 (UPC_CFI_373/2023, ACT_580849/2023, App_47922/2024), the panel of the Düsseldorf Local Division (Judge Thomas, presiding, B. Thom, judge-rapporteur, A. Kupecz) dismissed Aarke AB’s application under Rule 333 RoP for review of the judge-rapporteur’s order of 5 August 2024, which had refused to require SodaStream Industries Ltd., an Israeli company, to provide EUR 400,000 as security for costs in the infringement action on EP 1 793 917. Leave to appeal was granted.

Question

Does an alleged difficulty in enforcing a costs order in Israel justify security for costs against a solvent claimant?

Decision

The application for review is admissible under Rules 333.2 and 333.3 RoP. The judge-rapporteur applied the correct test: the other party’s financial position and the likelihood that a costs order may not be enforceable, or only in an unduly burdensome way. SodaStream, part of the PepsiCo group, can comply with a costs order, and Aarke itself accepts there is no insolvency risk, the fact that PepsiCo is not a party being irrelevant. Doubts about voluntary compliance are mere allegations, the alleged abuse is unsubstantiated and failing to contact the defendant before suing does not establish it. The length of enforcement proceedings in Israel is not sufficient, as recourse to court enforcement is by no means certain. Leave to appeal is granted given the nature of the request and the significant costs still to come.

Key points for practice

• Practical point: a claimant’s seat in a non-EU State does not in itself justify security for costs where its solvency is not in issue and the enforcement difficulties relied on remain hypothetical.

Provisions applied

Agreement on a Unified Patent Court

Arts. 69(4) and 73(2)(b)(ii)

Rules of Procedure

Rules 158, 220.2 and 333

Case law cited

Ballinno v Kinexon Sports & Media, Court of Appeal, 26 August 2024 (UPC_CoA_328/2024), Edwards Lifesciences v Meril, Munich Local Division, 29 September 2023 (UPC_CFI_15/2023), President and Fellows of Harvard College v NanoString, Munich Local Division, 30 October 2023 (UPC_CFI_252/2023), ICPillar v ARM, Paris Local Division, 21 May 2024 (UPC_CFI_495/2023)

Prepared by Dhenne Avocats from the official decision, consulted on 10 October 2026. The database is updated every week, on Friday. Only the official text is authoritative.