| Conflict of laws and private international law |
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| Preliminaries |
| Definitional elements |
| Connecting factors |
| Substantive legal areas |
| Enforcement |
The principle of lis alibi pendens (Latin for 'dispute elsewhere pending') applies in municipal law, public international law, and private international law to address the problem of potentially contradictory judgments. If two courts were to hear the same dispute, it is possible they would reach inconsistent decisions. To avoid the problem, there are two rules.
Res judicata provides that once a case has been determined, it produces a judgment either inter partes or in rem depending on the subject matter of the dispute: although there can be an appeal on the merits, neither party can recommence proceedings on the same set of facts in another court. If that rule were not in place, litigation might never come to an end.
The second rule is that proceedings on the same facts cannot be commenced in a second court if the lis (action), is already pendens (pending), in another court. Lis alibi pendens arises from international comity and permits a court to refuse to exercise jurisdiction if there is parallel litigation pending in another jurisdiction. Shany (2003) considers the problem within the public international law field where, for example, the Southern Bluefin Tuna dispute could have been determined either by the International Court of Justice (ICJ), or by tribunals established under the United Nations Convention on the Law of the Sea (UNCLOS), and the Swordfish dispute, which was submitted simultaneously to both the International Tribunal for the Law of the Sea (ITLOS) and a dispute settlement panel of the World Trade Organization (WTO). Kwak and Marceau (2002) consider the jurisdiction between the dispute settlement mechanisms of regional trade agreements (RTAs) and that of the WTO.
Articles 27–30 of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters [1] as amended by the "Brussels Regulation" [2] lay down a framework of regulation to avoid conflicting judgments (see Brussels Regime). [3]
The European Court of Justice ruled in Overseas Union Insurance Ltd. v New Hampshire Insurance Co. (1991) [4] that Article 27 applies to all proceedings commenced in the courts of the European Union regardless of the habitual residence or domicile of the parties. The Article provides for the court first seised to have priority in the same cause of action between the same parties without giving a second court the right to examine the first court's grounds for accepting jurisdiction with Article 27(2) imposing a mandatory duty on the second court to decline any jurisdiction unless the first court determines not to accept jurisdiction. This places a duty on the first court to make the decision expeditiously. In Turner v Grovit [5] judgment on April 27, 2004, an English court, being the first court seised, issued an injunction to restrain one of the parties from pursuing the proceedings they had commenced in Spain. Even where the defendant is acting in bad faith with the intention of frustrating the existing proceedings, the issue of an injunction was inconsistent with the Convention. The English court should trust the Spanish court to apply Article 27(2) (Blanke: 2004).
The question is what constitutes the "same cause". In Gubisch Maschinenfabrik v Palumbo (1987) [6] (Hartley: 1988) and The Tatry v The Maciej Rataj (1994), [7] the 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 test cannot be formal. It must look to the substance of each claim so that technical or procedural differences cannot be used to justify invoking separate jurisdictions in different Member States. One difficulty has been in rem jurisdiction, e.g. as in shipping law, but the substance test looks behind the res and identifies who the parties are and identifies what their purpose or objects are in the litigation. The parties must also be the same although the roles may be reversed between plaintiff/claimant and defendant (Seatzu: 1999). However, in multi-party actions, the subsequent court is only obliged to decline jurisdiction between the same parties, i.e. new parties may intervene and be heard in subsequent proceedings. But the courts are careful to look at the substance of the relationship between each set of parties. Thus, because an insurer has the right to use subrogation, the insurer and the insured would be considered the same person since they are both interested in achieving the same outcome. [8] Similarly, a wholly owned subsidiary company can be regarded as the same party as its parent.
Article 28 deals with cases that are related, i.e. actions which are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings. But Article 28(3) allows the second court a discretion to consider whether it should stay the second action. Article 29 provides for conflicts of exclusive jurisdiction, but its application is still uncertain. Under Article 16 some courts are granted exclusive jurisdiction over a cause, e.g. under Article 16(4) the courts of the place of registration of a patent have exclusive jurisdiction on issues of validity and infringement, but if a party has already commenced proceedings in another state, Article 27(2) obliges the second court to dismiss the second suit.
The new Article 30 seeks to introduce an autonomous interpretation of the concept of seisin. The original rule identified the time of commencement by reference to the local rules in each Member State. This could lead to difficulties when a second state had different rules as to when an action commenced because it might allow a second action to overtake the first on a technicality (e.g. in some states the rule was that an action had not commenced until it was served, whereas others held that an action commenced on the day the pleadings were lodged or registered in the court office. The new Article 30 now provides that an action commences when the plaintiff/claimant takes the necessary steps to continue the proceedings which will usually be service and the system will, for the most part, avoid unfairness. [9]
Arising out of comity which requires each Member State to respect the courts and judgments of other Members, the theory underpinning Article 27 is a blunt and inflexible instrument because its effect is to stimulate each party to initiate proceedings before the court most likely to produce a favourable outcome. Thus, instead of avoiding forum shopping, it actually turns it into a race (Hartley: 1988). Where one party in a legal relationship foresees that action may be brought against them, they can pre-empt this and bring their own action to the court of their choice. This will result in the delaying of proceedings while jurisdiction is established. It may also mean that the case is decided in the court they wish, if it is established that the court has jurisdiction. This strategy has become known as a "torpedo" proceeding. The abuse of Article 27 was first described by Franzosi (1997 and 2002) in intellectual property disputes where a party infringing a patent commenced proceedings for a declaration before a court with long delays because of the number of cases waiting to be heard. Thus, no other European court could accept jurisdiction in cases alleging infringement by the patent holder. One possible response to this abuse of process might arise from the relationship between exclusive jurisdiction granted under Article 16 and the Article 27(2) mandatory duty. Article 29 reserves the priority for the first court when both courts have exclusive jurisdiction under Article 16. But the ECJ has not ruled on the situation where only the second court has exclusive jurisdiction. Article 35 provides that a judgment that conflicts with the provisions on exclusive jurisdiction cannot be recognised and enforced. Since Article 16(4) allows exclusive jurisdiction to the forum in the place of registration, this might provide an arguable case that the second court could review the ground upon which the first court had accepted the action. A further interesting development lies in the application of Article 6 which provides for multi-party proceedings and allows a person domiciled in a Member State to be sued in the state of any one of the defendants so long as there is a real connection between the cause of action and that state. The justification of this provision is one of efficiency. If an action involving many defendants and states can be consolidated, a single judgment enforced in all the relevant states saves costs and time and some Member States are now issuing cross-border injunctions in intellectual property (IP) disputes (see Eisengraeber (2004) for a detailed evaluation of this option). A final option to consider is that the IP licensor should include exclusive jurisdiction clauses in the grant of all licences. Although such clauses almost certainly do not prevail over lis alibi pendens, some courts have been persuaded to prefer the parties' choice over torpedo actions. However, this approach will potentially create conflicting judgments and Article 35 will deny recognition to the subsequent forum's decisions. This situation may represent a breach of Article 6 European Convention for the Protection of Human Rights which stipulates that everyone is entitled to a fair and public hearing within a reasonable time. As it stands, one party's selection of a forum suffering from inordinate delays, effectively denies all the other parties a hearing. But it is uncertain whether the European Court of Human Rights would find this prejudice to be a breach of Article 6.
In the United States, Seguros Del Estado SA v. Scientific Games Inc., 262 F.3d 1164 (11th Cir. 2001) [10] there was alleged parallel litigation in the U.S. state of Georgia and the country of Colombia. It was held that the threshold question was whether the two cases were genuinely parallel. Applying Finova Capital Corp. v. Ryan Helicopters U.S.A., Inc., 180 F.3d 896, 898 (7th Cir. 1999), the court concluded that the two cases were not parallel since they involved materially different issues, documents, and parties. Thus, lis alibi pendens did not apply to terminate the proceedings.
The International Court of Justice, also called the World Court, is one of the six principal organs of the United Nations (UN). It settles disputes between states in accordance with international law and gives advisory opinions on international legal issues. The ICJ is the only international court that adjudicates general disputes between countries, with its rulings and opinions serving as primary sources of international law.
Jurisdiction is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels.
Conflict of laws is the set of rules or laws a jurisdiction applies to a case, transaction, or other occurrence that has connections to more than one jurisdiction. This body of law deals with three broad topics: jurisdiction, rules regarding when it is appropriate for a court to hear such a case; foreign judgments, dealing with the rules by which a court in one jurisdiction mandates compliance with a ruling of a court in another jurisdiction; and choice of law, which addresses the question of which substantive laws will be applied in such a case. These issues can arise in any private-law context, but they are especially prevalent in contract law and tort law.
Res judicata (RJ) or res iudicata, also known as claim preclusion, is the Latin term for matter decided and refers to either of two concepts in both civil law and common law legal systems: a case in which there has been a final judgment and that is no longer subject to appeal; and the legal doctrine meant to bar relitigation of a claim between the same parties.
In United States law, a lis pendens is a written notice that a lawsuit has been filed concerning real estate, involving either the title to the property or a claimed ownership interest in it. The notice is usually filed in the county land records office. Recording a lis pendens against a piece of property alerts a potential purchaser or lender that the property’s title is in question, which makes the property less attractive to a buyer or lender. Once the notice is filed, the legal title of anyone who purchases the land or property described in the notice is subject to the outcome of the lawsuit.
The draft European Patent Litigation Agreement (EPLA), or formally the Draft Agreement on the establishment of a European patent litigation system, was a proposed patent law agreement aimed at creating an "optional protocol to the European Patent Convention (EPC) which would commit its signatory states to an integrated judicial system, including uniform rules of procedure and a common appeal court". It differed from the Unified Patent Court Agreement in that the EPLA negotiations were coordinated from the side of the European Patent Office, rather than from the European Council and Commission and therefore also offered the possibility for non-EU states to participate.
Forum non conveniens (FNC) is a mostly common law legal doctrine through which a court acknowledges that another forum or court where the case might have been brought is a more appropriate venue for a legal case, and transfers the case to such a forum. A change of venue might be ordered, for example, to transfer a case to a jurisdiction within which an accident or incident underlying the litigation occurred and where all the witnesses reside.
A forum selection clause in a contract with a conflict of laws element allows the parties to agree that any disputes relating to that contract will be resolved in a specific forum. They usually operate in conjunction with a choice of law clause which determines the proper law of the relevant contract.
In law, the enforcement of foreign judgments is the recognition and enforcement in one jurisdiction of judgments rendered in another ("foreign") jurisdiction. Foreign judgments may be recognized based on bilateral or multilateral treaties or understandings, or unilaterally without an express international agreement.
The Brussels Regime is a set of rules regulating which courts have jurisdiction in legal disputes of a civil or commercial nature between individuals resident in different member states of the European Union (EU) and the European Free Trade Association (EFTA). It has detailed rules assigning jurisdiction for the dispute to be heard and governs the recognition and enforcement of foreign judgments.
Arbitration is a form of alternative dispute resolution (ADR) that resolves disputes outside the judiciary courts. The dispute will be decided by one or more persons, which renders the 'arbitration award'. An arbitration decision or award is legally binding on both sides and enforceable in the courts, unless all parties stipulate that the arbitration process and decision are non-binding.
In European Union law, and especially in European intellectual property law, a cross-border injunction is an injunction by a court in one European country, such as for example a court in the Netherlands forbidding infringement in several other European countries.
International litigation, sometimes called transnational litigation, is the practice of litigation in connection with disputes among businesses or individuals residing or based in different countries.
Justice Jean-Paul Beraudo is a lawyer, academic and author of legal works. He was Justice at the French Supreme Court and vice-chairman of the International Court of Arbitration. He lectures on International Private Law and International Trade Law at Panthéon-Sorbonne University and on Company law at Sciences-Po, Paris. The International Institute for the Unification of Private Law (UNIDROIT) appointed him correspondent for France and a member of the scientific committee.
Brussels II Regulation (EC) No 1347/2000, which came into force on 1 March 2001, sets out a system for the allocation of jurisdiction and the reciprocal enforcement of judgments between European Union Member States and was modelled on the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. It was intended to regulate domains that were excluded from the Brussels Convention and Brussels I. The Brussels II Regulation deals with conflict of law issues in family law between member states; in particular those related to divorce and child custody. The Regulation seeks to facilitate free movement of divorce and related judgments between Member States.
The Maintenance Regulation (EC) No 4/2009, formally the Council Regulation (EC) on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, is a European Union Regulation on conflict of law issues regarding maintenance obligations. The regulation governs which courts have jurisdiction and which law it should apply. It further governs the recognition and enforcement of decisions. The regulation amends the Brussels Regulation, which covers jurisdiction in legal disputes of a civil or commercial nature between individuals more broadly.
The Brussels I Regulation contains a jurisdictional regime: the rules which courts of European Union Member States use to determine if they have jurisdiction in cases with links to more than one country in the European Union. The basic principle is that the court in the member state of the party that gets sued has jurisdiction, while other grounds exist, which are diverse in content and scope, and are often classified in descending order of exclusivity and specificity. The original Brussels Regulation (44/2001) is, with regard to jurisdiction rules, very similar to the 2007 Lugano Convention, containing the same provisions with the same numbering. Numbering and certain substantial issues are different in the 2012 recast version of the Regulation, which has applied since 1 January 2015 (1215/2012).
Gasser v MISAT (C–116/02) was a decision of the European Court of Justice regarding the interpretation of the Brussels convention of 1968 ruling that a court chosen in a choice of court agreement should stay its proceedings - as any other court chosen second within the Brussels regime - until the court first seized had declared it did not have jurisdiction. The court's decision was considered problematic as it favoured the uniformity of application of the Brussels regime jurisdictional rules temporarily over party autonomy. Due to similar provisions in the 2001 Brussels Regulation and Lugano Conventions, the interpretation also affects choice of court agreements under those later instruments. However, in the 2012 Recast version of the Brussels I Regulation chosen courts can take jurisdiction, even if a court not chosen has been addressed first.
In law, an anchor defendant is a person who is made a defendant to a claim for the primary purpose of vesting jurisdiction to hear the claim in a certain court. Usually the purpose of the anchor defendant is to allow claims to be brought in a certain court against another defendant over whom the relevant court would not otherwise have jurisdiction. Accordingly, use of anchor defendants is often a variation of forum shopping.
The Italian Torpedo is a term used in private international law to describe the act of bringing a case before a court in a state which suffers from major delays in judicial proceedings, such as Italy or Belgium, as to delay the judicial resolution of the dispute or the proceedings.
