Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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Chapter L.11: Lis alibi pendens

Linda Silberman

I. Concept and notion

Lis alibi pendens (meaning ‘dispute elsewhere pending’, and more commonly shortened to ‘lis pendens’) is a legal rule that allows a court to refuse to exercise jurisdiction when there is parallel litigation already pending in another forum. In some versions of the principle, notably in the EU (per the Brussels Convention (Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, [1972] OJ L 299/32, consolidated version, [1998] OJ C 27/1), the Brussels I Regulation (Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, [2001] OJ L 12/1) and the Brussels I Regulation (recast) (Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), [2012] OJ L 351/1) (→Brussels I (Convention and Regulation))), lis pendens operates as a strict ‘first in time’ rule; in that version, once a forum is seized of an action, a court that is subsequently seized of a parallel case must stay its jurisdiction until the court first seized determines it has jurisdiction over the parties and cause of action, at which point the second court must dismiss the action. In cases not covered the Convention and Regulation, most civil law countries give the judge discretion to decline jurisdiction where the priority condition of lis pendens is met. The lis pendens rule can also encompass related cases rather than just the ‘same case’, and in such situations, courts are generally given discretion to stay or dismiss the action. Common law countries generally have not adopted a formal lis pendens rule but incorporate the fact of a prior pending action into their application of the related doctrine of →forum non conveniens.

II. p. 1159Purpose and function

Lis pendens is closely allied with judgment recognition. Both concepts promote international comity by attempting to avoid or restrict parallel litigation. Indeed, lis pendens operates as a pre-emptive corollary to the res judicata effect of foreign judgments. Where a court will render a judgment that will determine an issue between the parties so as to preclude further litigation by application of the rule of res judicata, lis pendens anticipates the result by preventing the parallel proceeding. Indeed, in some jurisdictions, application of a lis pendens priority rule is expressly conditioned upon the likely enforceability of a resulting foreign judgment within the requested forum (eg art 9 Swiss Private International Law Act (Bundesgesetz über das Internationale Privatrecht of 18 December 1987, 1988 BBl. I 5, as amended)). That approach has recently been adopted in the Brussels I Regulation (recast) with respect to parallel proceedings in non-Member States (arts 33, 34 Brussels I Regulation (recast)).

Although parallel litigation is often a function of each of the respective parties’ assessment of the relative advantages of a particular forum, significant negative consequences often flow from duplicative lawsuits. Parallel litigation may lead to different and/or inconsistent judgments, wastes resources of both the parties and the courts, and creates tensions between governments. In some instances, multiple suits may be filed primarily for harassment and vexatious purposes.

Adoption of a lis pendens rule is only one alternative for dealing with parallel litigation, but is the primary approach taken in civil law jurisdictions. Common law jurisdictions are more likely to use the doctrine of →forum non conveniens to determine the most appropriate forum for the litigation. Courts invoking forum non conveniens will dismiss a case when there is a more appropriate alternative forum, whether or not a parallel lawsuit has been instituted. Thus forum non conveniens often negates parallel litigation even before it starts. Where a parallel lawsuit has in fact begun, that factor will be an additional one to be included in the assessment of the more appropriate forum. Common law jurisdictions also have authority to issue →anti-suit injunctions against a party who undertakes parallel litigation, but that remedy is usually limited to situations where an →injunction is necessary to prevent harassment, to prevent evasion of a forum’s important public policies or to avoid unnecessary delay, inconvenience and expense.

Although a lis pendens rule is intended to avoid the problems associated with parallel proceedings, its requirements present their own set of issues and create other possibilities for strategic behaviour. For many applications of lis pendens, the determination of whether proceedings are ‘parallel’ requires a court to determine whether (i) the parties are sufficiently the same and (ii) whether the proceedings are based on the same cause of action (which itself implicates both the same subject matter and relief sought). In systems that authorize a broader application of lis pendens that encompasses ‘related actions’, the inquiry is more relaxed. The question of whether the causes of action are the ‘same’ may be straightforward when the proceedings are in the same legal system, but in the transnational context a court will have to compare laws and causes of action from different contexts. The Canadian Supreme Court, in its application of the Quebec Code of Civil Procedure’s (RSQ c. C-25, art 165) lis pendens rule, offered the following analysis: determine whether the causes of action in the two proceedings are based on the same legal principle, and whether on application they would result in the same effects on the parties’ rights and obligations (see Rocois Construction Inc v Québec Ready Mix Inc and Others [1990] 2 SCR 440). The EU applies its own standard for categorizing and differentiating between proceedings based on the exact same cause of action, for which its lis pendens rule is obligatory, and proceedings based on ‘related’ actions, for which the rule is discretionary.

A more challenging problem faced by jurisdictions with a lis pendens rule is the incentive it creates for parties’ strategic pre-litigation behaviour. Under a strict lis pendens regime, parties have an incentive to be the first to file (in order to secure the forum they prefer), thereby increasing the likelihood of litigation and decreasing the likelihood of pre-litigation settlement. This ‘race to file’ often leads a party to pre-empt any possibility of negotiation and to file first in a forum with perceived procedural advantages and/or more favourable law. A strict first-to-file rule has the potential to exacerbate forum shopping (→Forum (and law) shopping) between national courts as well as international courts and tribunals. On the other hand, although a lis pendens rule may p. 1160encourage a race to file an action, the lack of such a rule increases the risk of a ‘race to judgment’, where both parties initiate proceedings and then try to obtain the first judgment so as to assert its preclusive effect in the other proceeding.

A final concern relating to parallel litigation – and the application of lis pendens – in private international law (outside the EU system) is the lack of a supranational tribunal to standardize how parallel litigation should be handled. No single legal regime has priority over any other, and thus different legal systems take a variety of approaches to parallel litigation leading to the possibility of even greater conflict.

III. Historical development

At its foundation, the doctrine of lis pendens initially developed within the internal civil procedure rule of civil law countries and was closely linked to the rules on the recognition of the preclusive effect of judgments, or res judicata. Discussion of lis pendens can be traced to 17th-century Dutch legal scholarship that developed principles that would be the foundation for the modern study of the conflict of laws and of private international law more generally (see Campbell McLachlan, ‘Lis Pendens in International Litigation’ (2009) 336 Rec. des Cours 199). The principles of lis pendens and res judicata reflected the interest in →comity in a new post-Westphalian reality of separate jurisdictions with different legal systems. The internal civil procedures of civil law European countries began to include lis pendens rules, but the extension of these internal lis pendens rules to the international level was not self-evident and did not happen quickly. In tension with the idea of an international lis pendens was a state’s interest in ensuring that its courts not be prevented from hearing cases potentially implicating its own interests. France was one such example. For a century and a half, France’s procedural lis pendens rule was not accepted by French courts as applicable to foreign proceedings, except in the case of express treaty provisions. Just prior to the time when the 1968 Brussels Convention – which included a strict first-in-time uniform lis pendens rule for Member States of the EU – entered into force in France (1973), the Cour de Cassation finally accepted the lis pendens doctrine as applicable to other international cases (see Soc Miniera de Fragne c. Cie européenne d’équipement industriel, Cass. Civ., 26 November 1974). Italy was even more resistant. Until a 1995 revision to Italian law, art 3 of the Italian Code of Civil Procedure (Codice di procedura civile of 21 April 1942, R.D., 28 October 1940, No 1443 Gazz.Uff. No 253) provided: ‘the competence of the Italian courts is not excluded by the fact that the same case or a connected claim is pending elsewhere before a foreign judge’ (see Gerhard Walter, ‘Lis Alibi Pendens and Forum Non Conveniens: From Confrontation via Co-ordination to Collaboration’ (2002) 4 E.J.L.R. 69).

The reluctance to extend lis pendens internationally has been tied to the larger question of whether one national order is prepared to recognize and give priority to judicial processes in other systems in the interests of the larger purpose of creating an international and harmonized civil procedure. Even without acceptance of that broader goal, the desire to control forum shopping, to promote judicial efficiency and to avoid multiple and inconsistent judgments has led many jurisdictions to extend their internal lis pendens rule covering the ‘same cause of action’ to international cases. One of the earliest was art 9 of the Swiss PILA which provided: ‘If a lawsuit on the same matter between the same parties is already pending abroad, the Swiss court must stay the proceedings if it is to be expected that the foreign court will, within a reasonable time, render a judgment recognizable in Switzerland.’

Lis pendens (a strict priority in time rule of the ‘same action’ and a discretionary rule for ‘related cases’) was included in the original Brussels Convention of 1968. The geographic scope was enlarged with ratification of the Lugano Convention of 1988 (Lugano Convention of 16 September 1988 on jurisdiction and the enforcement of judgments in civil and commercial matters, [1988] OJ L 319/9) and with the addition of Member States to the EU. Although the Conventions’ rules applied only to proceedings in other Member States where uniform rules for jurisdiction and the recognition of judgments were also required, a more expansive use of lis pendens was found in the national laws of many of those countries. As of 2007, 19 Member States of the EU had adopted lis pendens for international non-EU cases (Arnaud Nuyts and others, Study on Residual Jurisdiction – General Report (Brussels 2007)). In most of those states, the lis pendens rule for the ‘same cause of action’ is one of discretion and not the strict first-in-time rule of the EU regime. A lis pendens rule in cases of related proceedings was much slower p. 1161to expand internationally, and only →France of the EU Member States extended its ‘related proceedings’ lis pendens rule to cover international cases. However, since 2015, with the introduction in arts 33 and 34 of the Brussels I Regulation (recast), Member States of the EU will now apply a discretionary lis pendens rule to both the ‘same’ and ‘related’ causes of action when there is a proceeding in a third state if it is expected that the court of the third state will give a judgment capable of recognition and/or enforcement in that Member State.

The extension of lis pendens rules to private international litigation opened the door, particularly within the EU system, for strategic behaviour by litigants in various ‘race-to-file’ scenarios. Court backlogs in countries such as Italy and Greece gave rise to new forum-shopping and gamesmanship opportunities through use of lis pendens. For example, in intellectual property cases, a potential infringer, taking advantage of the delay in the Italian courts, could commence proceedings in Italy for a declaration of non-infringement, thereby preventing the patent holder from bringing its own suit elsewhere. With such delay postponing even a decision on jurisdiction for years, this ‘Italian torpedo’ became a popular strategy. In another scenario, borrowers could gain an advantage by bringing a first proceeding in slower and potentially sympathetic courts, regardless of whether a more appropriate forum for the proceeding existed elsewhere. Even if unlikely to be successful on the merits at the end of the litigation, the borrower could drag the case out for many years, during which time the lender was unable to sue in any other EU country. One possible escape from such tactics was the use of an exclusive forum-selection agreement between the parties (see Continental Bank v Aeakos SA [1994] 1 WLR 588 (CA)). However, this option was rendered ineffective when the EU Court of Justice ruled in Case C-116/02 Erich Gasser GmbH v MISAT Srl ([2003] ECR I-14693) that the absolute priority rule of the court first seized applied, irrespective of either an exclusive jurisdiction clause or the prospect of delay. However, art 31(2) in the revision of the Brussels I Regulation (recast) has reversed the result in Gasser by expressly providing that where a court of a Member State has exclusive jurisdiction by virtue of a forum-selection agreement, courts of other Member States must stay proceedings until that court declares it has no jurisdiction under the agreement.

Parallel to the development of lis pendens rules in civil law countries was the development of anti-suit injunctions and the →forum non conveniens doctrine in common law countries as the primary tools for addressing parallel litigation. Anti-suit injunctions are not used in civil law countries, and have been described as infringements of the sovereignty of other nations (see Re the Enforcement of an English Anti-suit Injunction, Higher Regional Court (OLG) of Düsseldorf, [1997] ILPr 320). Nor are anti-suit injunctions appropriate under the Brussels Convention, the Brussels I Regulation and the Brussels I Regulation (recast) even when sought in support of its own lis pendens rule. In Case C-159/02 Gregory Paul Turner v Felix Fareed Ismail Grovit, Harada Ltd and Changepoint SA [2004] ECR I-3565, the ECJ held that an English anti-suit injunction, issued to restrain Spanish proceedings ‘related to’ to an earlier filed English action, constituted an unjustifiable interference with the court of another Member State and was inconsistent with the principle of mutual trust underlying the Brussels Convention. The anti-suit injunction in England was first used primarily in cases where an English judgment had already been rendered, thereby protecting the res judicata effect of a judgment. It later developed as a remedy in the context of parallel pending proceedings with a two-step requirement: that the present forum was the most appropriate for the trial of the action and that the pursuit of the foreign action was perceived as oppressive (Societé Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871 (Privy Council)). Other common law countries, such as →Canada and →Australia have also used the remedy of an anti-suit injunction to control transnational parallel litigation. Courts in the →USA are generally reluctant to issue anti-suit injunctions to restrain parallel proceedings except when necessary to protect the court’s jurisdiction or to prevent the evasion of important public policies.

In common law countries, lis pendens has not emerged as an independent basis for controlling parallel litigation. Rather, the existence and effect of foreign proceedings has been an additional factor as part of a forum non conveniens inquiry. In England, case-law holds that ‘the existence of simultaneous proceedings is no more than a factor relevant to the determination of the appropriate forum’ (Lord Collins of Mapesbury and others (eds), Dicey, Morris & Collins on the Conflict of Laws (15th edn, Sweet & Maxwell 2012) 12–043). In other countries, p. 1162the fact of a prior pending proceeding may be given more substantial weight.

IV. Legal sources and regulation

1. Civil law regimes

Many civil law countries included a lis pendens rule in their procedural codes that applied to domestic cases and now have extended that rule to transnational litigation. For example: the French Code of Civil Procedure ((Nouveau) Code de Procédure Civile of 1 January 1976, décret No 75–1123, 5 December 1975), art 100, states:

Where the same cause of action is pending between two courts of the same level, which are equally competent to handle the matter, the last court informed shall decline jurisdiction in favour of the first one informed if one of the parties so requests. In the absence of such a request, the court may do so of its own motion.

In the international context outside of the EU context, the application of the French rule gives the judge discretion to decline jurisdiction. This discretionary application of lis pendens appears to be characteristic of EU countries’ applications of the concept to proceedings in non-Member States (Campbell McLachlan, ‘Lis Pendens in International Litigation’ (2009) 336 Rec. des Cours 199). In a number of countries, there is no explicit statutory or code provision for the application of lis pendens in international cases, but analogies are drawn to lis pendens for domestic cases (‘General Report’ in JJ Fawcett, Declining Jurisdiction in Private International Law (Clarendon 1995) 31–2). Statutory provisions in several states tie the extension of lis pendens in international cases to the larger issue of recognition of judgments. Article 9 Swiss PILA requires a stay of prior proceedings in favour of a foreign court only where that court’s judgment would be recognized in the forum. The Italian code provision (art 7 Legge di diritto internazionale privato e processuale, part of the Italian Private International Law Act (Riforma del Sistema italiano di diritto internazionale private, Act No 218 of 31 May 1995 in Gazz. Uff., Supplemento Ordinario No 128 of 3 June l995, as amended)) requires Italian courts to stay proceedings if a prior lawsuit about the same subject matter and right between the same parties is before a foreign court, provided they consider that the foreign decision can have an impact in the Italian legal order (Gerhard Walter, ‘Lis Alibi Pendens and Forum Non Conveniens: From Confrontation via Co-ordination to Collaboration’ (2002) 4 E.J.L.R. 69). Other countries, such as →Sweden, →Germany and the →Netherlands, appear to tie a discretionary application of lis pendens to a prognosis of recognition of the judgment (JJ Fawcett, Declining Jurisdiction in Private International Law (Clarendon 1995) 36–8).

2. Common law regimes

In Common law jurisdictions, lis pendens has not emerged as an independent basis for staying or dismissing an action. Rather, the doctrine of →forum non conveniens, which can apply even when no prior proceeding is pending, considers the fact of an earlier-filed action as one of the factors to be taken into account, and that factor may tip the balance in favour of staying or dismissing the action. In the USA, an additional doctrine of ‘international abstention’ has sometimes been invoked in situations of foreign parallel proceedings.

a) United States

No federal statutory or constitutional provision governs parallel proceedings in US and foreign courts. A few states in the USA have explicit statutory or rule provisions for stays or dismissals in deference to parallel actions, but such provisions often operate only domestically and do not always apply to actions in foreign courts. State courts have generally relied on principles of forum non conveniens to deal with parallel litigation in both domestic and foreign courts. The federal courts, in addition to relying on general principles of forum non conveniens, have sometimes followed approaches adopted for dealing with problems that arise domestically from a dual system of state and federal courts with concurrent jurisdiction over many matters. The issue of how to deal with prior foreign parallel litigation is often characterized as one of ‘international abstention’.

One form of domestic parallel litigation within the USA results from its dual system of state and federal courts. In Colorado River Water Conservations District v United States, 424 U.S. 800 (1976), the Supreme Court, in a case involving state-federal proceedings relating to water rights held by the US government, stated that jurisdiction can be declined by a federal court only in ‘exceptional circumstances’. p. 1163The Court emphasized the ‘unflagging obligation’ of the federal courts to exercise the jurisdiction given to them. A subsequent Supreme Court decision, Quackenbush v Allstate Ins Co, 517 U.S. 706 (1996), reaffirmed that principle, stating that federal courts had authority to abstain only where the relief being sought was ‘equitable or discretionary’. A different view was taken in an earlier Supreme Court decision, Landis v North American Co, 299 U.S. 248 (1936), a case involving parallel proceedings in two different federal courts. There, the Court permitted a stay on the grounds that it was within the district court’s discretion, without any requirement of ‘exceptional circumstances’. For parallel litigation pending in two federal courts, the preference is in favour of the first-filed case, creating something very close to a system of lis pendens. In such cases, a federal court other than the first seized may stay the parallel proceeding or the court first seized may issue an anti-suit injunction (see, eg, National Equipment Rental, Ltd v Fowler, 287 F.2d 43 (2d Cir 1961)).

Because no Supreme Court case has addressed the issue of parallel proceedings in international cases, the dual line of domestic cases continues to influence how lower courts deal with the question in transnational litigation. The Landis line of authority has led courts to find that it has ‘inherent power to dismiss or stay’ an action in light of pending litigation in a foreign court. One such case is Turner Entertainment Co v Degeto Film Gmbh, 25 F.3d 1512 (11th Cir 1994), which identified three goals in addressing concurrent international jurisdiction: a sense of comity, fairness to litigants and efficient use of judicial resources. In assessing fairness, the court considered the order of filing, the convenience of the forum and the possible prejudice to the parties. Also, in Posner v Essex Insurance Co, 178 F.3d 1209 (11th Cir 1999), the Court of Appeals concluded that a stay of federal-court proceedings was appropriate where a prior action with significantly common issues and parties had been filed in Bermuda almost a year prior to the US action and where the Bermuda court was competent to hear the claims and would use fair and just proceedings to decide the case.

Other courts, relying on Colorado River, have allowed parallel litigation to proceed, concluding that a federal court owes no greater deference to foreign courts than to its own state courts (Neuchatel Swiss General Ins Co v Lufthansa Airlines, 925 F.2d 1193 (9th Cir 1991)). Such cases reflect the view that a plaintiff has a right to choose its own forum permitting each sovereign to reach a judgment and apply the findings of one to the other.

Without a uniform lis pendens rule in the USA, the result of parallel litigation is often a race to judgment, since the case that reaches judgment will have preclusive effects. Additionally, because the USA is relatively liberal regarding the recognition and enforcement of foreign judgments, a foreign case (even if initiated later) may control and have preclusive effects in the USA if the foreign court reached judgment first. A 2005 proposal by the American Law Institute (ALI) for a US federal statute on foreign judgment recognition included a provision for ‘Declination of Jurisdiction When Prior Action is Pending’. The proposal provided for a declination of jurisdiction when an action concerning the same subject matter and including the same or related parties had previously been brought in a foreign court if the foreign court had an acceptable basis of jurisdiction and the foreign court was likely to render recognizable judgment. It also identified several situations – such as an attempt to frustrate an action in the more appropriate forum or the bringing of vexatious or frivolous proceedings – as exceptions to the rule of priority (Linda Silberman, ‘A Proposed Lis Pendens Rule for Courts in the United States: The International Judgments Project of the American Law Institute, in Intercontinental Cooperation through Private International Law’ in Talia Einhorn and Kurt Siehr (eds), Intercontinental Cooperation through Private International Law (TMC Asser Press 2004)).

b) Other common law jurisdictions

Historically, the English courts had taken the position that where two opposing parties had begun rival proceedings, the doctrine of lis pendens was ‘no part of the law of England’ (Campbell McLachlan, ‘Lis Pendens in International Litigation’ (2009) 336 Rec. des Cours 199). However, subsequent cases adopted an approach that used forum non conveniens principles, accepted by the House of Lords in England in the Spiliada Maritime Corp v Cansulex Ltd case (Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 (HL)) to consider the impact of pending foreign litigation as part of that inquiry. However, the existence of simultaneous proceedings is only one factor p. 1164relevant to the determination of the appropriate forum in the application of forum non conveniens (Lord Collins of Mapesbury and others (eds), Dicey, Morris & Collins on the Conflict of Laws (15th edn, Sweet & Maxwell 2012) 12–044). For example, foreign litigation may be of no relevance if one party has commenced proceedings for tactical purposes, as in the case of a negative declaration, or if the proceedings are only at an initial stage. On the other hand, if the foreign proceedings are far advanced and likely to determine the entire dispute, the parallel proceedings will be given substantial (but not decisive) weight (Campbell McLachlan, ‘Lis Pendens in International Litigation’ (2009) 336 Rec. des Cours 199). Canada, too, appears to have merely recalibrated its doctrine of →forum non conveniens to take into account the special factual conditions raised by the existence of an earlier-filed parallel case. Australia, among common law countries, applies a more restrictive standard in determining whether a case should be stayed or dismissed on forum non conveniens grounds, reflecting a principle that a plaintiff’s choice of forum ought not to be lightly disturbed when no other proceedings are underway. However, in cases where foreign parallel proceedings are underway, courts in Australia are also more likely to stay or dismiss the action.

3. European Union

In the EU legal regime, the lis pendens rule was first laid out in arts 21–3 of the Brussels Convention (which for purposes of lis pendens is identical to the 1988 Lugano Convention). It was amended by arts 27–30 of the Brussels I Regulation, and then again by arts 29–30 of the Brussels I Regulation (recast). The substance of the lis pendens rules for Member States in the Convention and Regulation is substantially the same, although the Brussels I Regulation (in art 30) introduced a European definition for when a court shall be deemed to be seized. Broadly speaking, the EU lis pendens regime differentiated between proceedings based on the same cause of action (art 21 Brussels Convention, art 27 Brussels I regulation, art 29 Brussels I Regulation (recast)) and those based on related actions (art 22 Brussels Convention, art 28 Brussels I Regulation, art 30 Brussels I Regulation (recast)).

If the causes of action are determined to be the same, then the lis pendens rule is obligatory and any court other than the first seized must decline jurisdiction. Further clarifying, the ECJ ruled in the 1991 Case C-351/89 Overseas Union Insurance Ltd and Others v New Hampshire Insurance Company [1991] ECR I-3317 that the ‘same cause of action’ obligation applies to all proceedings commenced in the EU regardless of where the parties come from. In Case C-144/86 Gubisch Maschinenfabrik KG v Giulio Palumbo ([1987] ECR 4861) and Case C-406/92 The owners of the cargo lately laden on board the ship ‘Tatry’ v the owners of the ship ‘Maciej Rataj’ ([1994] ECR I-5439), the ECJ determined that the ‘same cause of action’ test is whether the factual basis of the claim and the laws to be applied are the same with a view to obtaining the same basic outcome. The ‘same cause of action’ mandatory first-filed rule also requires the parties in both proceedings to be substantially the same. The Court in The Tatry determined that lis pendens would not apply if there are two completely different parties bringing the actions. If the parties are closely related, they may be considered the same for purposes of the rule if they have ‘dissociable interests’ (see Case C-351/96 Drouot Assurances SA v Consolidated Metallurgical Industries and others [1998] ECR I-3075). An example is a judgment against one party that would have the force of res judicata as against the other, as when, for example, an insurer exercises its right of subrogation to sue in the name of its insured. If the causes of action in parallel proceedings are only determined to be related, the lis pendens rule is discretionary (courts other than the first seized ‘may’ stay their proceedings). Additionally, a court other than the court first seized may decline jurisdiction upon application of a party if the court first seized has jurisdiction over both related actions and consolidation is permitted (Stephen B Burbank, ‘Jurisdictional Equilibrium, The Proposed Hague Convention and Progress in National Law’ (2001) 49 Am.J.Comp.L. 203, 217). The Brussels I Regulation (recast) (art 31(2)) introduced an important exception to the strict EU first-in-time rule for situations in which the parties have agreed to an exclusive choice-of-forum clause. Article 31(2) provides that a court of a Member State shall stay proceedings until such time as the court seized on the basis of such agreement declares that it has no jurisdiction under the agreement, and once it does so, art 31(3) mandates that the non-chosen court dismisses the action. The provision overruled the p. 1165earlier Court of Justice case (Case C-116/02 Erich Gasser GmbH v MISAT Srl [2003] ECR I-14693), which had been heavily criticized in commentary.

4. International regimes

a) Public international law

Due to the relatively limited number of international courts and tribunals, parallel proceedings on the level of public international law (ie involving two international judicial organs) are rare, and consequently the use of lis pendens rules has been rare as well. Debate continues as to whether lis pendens is recognized as a general rule or principle in international law in the relations between international courts and tribunals. As early as 1925, the PCIJ noted in Certain German Interests in Polish Upper Silesia ((Germany v Poland), 1925 PCIJ (Ser. A) No. 6), that ‘It is a much disputed question in the teachings of legal authorities and in the jurisprudence of the principal countries whether the doctrine of litispendance, the object of which is to prevent the possibility of conflicting judgments, can be invoked in international relations . . .’ However, the principle of lis pendens can be found in a number of international conventions. For example, art 35 of the ECHR (European Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 221), provides that ‘[t]‌he Court shall not deal with any application submitted under Art. 34 that is substantially the same as a matter that . . . has already been submitted to another procedure of international investigation or settlement and contains no relevant new information’. Nonetheless, the potential for conflict among public international tribunals is less likely than in private international law since international tribunals are limited to disputes arising under its constitutive treaty (Campbell McLachlan, ‘Lis Pendens in International Litigation’ (2009) 336 Rec. des Cours 199).

b) Private international law

Proposals for international lis pendens rules have been made by a number of institutions, such as the Institut de Droit International in its ‘Principles for Determining When the Use of the Doctrine of Forum Non Conveniens and Anti-Suit Injunctions is Appropriate’ ((Collins and Droz, Rapporteurs) (2002–2003) 70-II Annuaire 252), the American Law Institute and →UNIDROIT in its Principles of Transnational Civil Procedure (ALI/UNIDROIT Rules of Transnational Civil Procedure (text of the Principles and the accompanying commentary were adopted by the American Law Institute (ALI) in May 2004 and by the International Institute for the Unification of Private Law (UNIDROIT) in April 2004, (2004) 4 Unif.L.Rev. 758)), and the International Civil and Commercial Litigation Committee of the International Law Association in its Leuven/London Principles on Declining and Referring Jurisdiction in International Civil and Commercial Litigation (Res. 1/2000). In addition, the →Hague Conference on private international law proposed a Preliminary Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters (adopted by the Special Commission, Preliminary Document No 11 of August 2000)that included provisions for a lis pendens rule mitigated by forum non conveniens flexibility in the first-seized court.

In 2004, the Institut de Droit, addressing issues of →forum non conveniens and anti-suit injunctions, adopted a Report stating that parallel litigation between the same or related parties should be discouraged. The UNIDROIT/ALI Principles included both a forum non conveniens provision (for a manifestly inappropriate court) and a lis pendens provision (for a prior pending action). The latter provided: the court should decline jurisdiction or suspend the proceeding when the dispute is previously pending in another court competent to exercise jurisdiction, unless it appears that the dispute will not be fairly, effectively and expeditiously resolved in that forum (Principle 2.6). The Leuven/London Principles combined an obligation of a second-seized court to stay proceedings involving the same parties and the same subject matter of a prior proceeding with an obligation by the first-seized court to consider whether the second-seized court was a ‘manifestly more appropriate forum for the determination of the merits of the matter’ (Principles 4.1 and 4.3). The 1999 Hague Draft Convention on Jurisdiction and Judgments, which ultimately did not go forward, included provisions on lis pendens (art 21) and forum non conveniens (art 22) that reflected both civil and common law experiences with parallel litigation as well as the influence of the Leuven/London Principles. In addition to various tweaks of the lis pendens provision in the Brussels Convention and the Brussels I Regulation with respect to the scope p. 1166of the proceedings, the time reference for the court first seized, and a safeguard for delay in proceedings in the first-filed court, the Hague Draft Convention included two limitations on a strict lis pendens rule. The first was to exclude the application of lis pendens when the first-filed action was a negative declaration. The second was to introduce a limited type of forum non conveniens to avoid the first-in-time rule if the court first seized determined that the court second seized is clearly more appropriate to resolve the dispute. The criteria for that determination are found in art 22, which provided a general rule for declining jurisdiction in ‘exceptional circumstances’, reflecting a more restrictive version of the traditional common-law forum non conveniens doctrine (Linda Silberman, ‘A Proposed Lis Pendens Rule for Courts in the United States: The International Judgments Project of the American Law Institute, in Intercontinental Cooperation through Private International Law’ in Talia Einhorn and Kurt Siehr (eds), Intercontinental Cooperation through Private International Law (TMC Asser Press 2004) 354–5).

Literature

  • ALI/UNIDROIT, Principles of Transnational Civil Procedure (CUP 2004);

  • Stephen B Burbank, ‘Jurisdictional Equilibrium, The Proposed Hague Convention and Progress in National Law’ (2001) 49 Am.J.Comp.L. 203;

  • Lord Collins of Mapesbury and others (eds), Dicey, Morris & Collins on the Conflict of Laws (15th edn, Sweet & Maxwell 2012);

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