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The principle of lis alibi pendens applies both in municipal, 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 that they might 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, i.e. although there can be an appeal on the merits, neither party can recommence proceedings on the same set of facts in another court. If this 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 i.e. action, is already pendens, i.e. pending, in another court. Lis alibi pendens arises from international comity and it permits a court to refuse to exercise jurisdiction when there is parallel litigation pending in another state. 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 Organisation (WTO). Kwak and Marceau (2002) consider the jurisdiction between the dispute settlement mechanisms of regional trade agreements (RTAs) and that of the WTO. Image File history File links Scale_of_justice. ...
Private international law comprises provisions of national law regarding contracts and lawsuits involving foreign laws or jurisdictions. ...
In Conflict of Laws, characterisation is the second stage in the procedure to resolve a lawsuit involving a foreign law element. ...
In the Conflict of Laws, an incidental question is a legal issue that arises in connection with the major cause of action in a lawsuit. ...
In Conflict of Laws, renvoi (from the French, meaning send back) is a subset of the choice of law rules and it is potentially to be applied whenever a forum court is directed to consider the law of another state. ...
Choice of law is a concept within the field of the conflict of laws, relating to relationships between different nations, and in the United States between individual states. ...
The choice of law rules in the Conflict of Laws in the United States have diverged from the traditional rules applied internationally. ...
Public policy or ordre public is the body of fundamental principles that underpin the operation of legal systems in each state. ...
The Hague Conference on Private International Law is the preeminent organisation in the area of private international law. ...
For the purposes of Public International Law and Private International Law, a state is a defined group of people, living within defined territorial boundaries and subject, more or less, to an autonomous legal system exercising jurisdiction through properly constituted courts. ...
In law, jurisdiction from the Latin jus, juris meaning law and dicere meaning to speak, is the practical authority granted to a formally constituted body or to a person to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility. ...
In all lawsuits involving Conflict of Laws, questions of procedure as opposed to substance are always determined by the lex fori, i. ...
Forum non conveniens is Latin for inconvenient forum or inappropriate forum. ...
The lex causae is the Latin term for law of the case in the Conflict of Laws. ...
Lex fori is a private international law doctrine meaning the law of the court in which proceedings are being conducted. ...
Forum shopping is the informal name given to the practice adopted by some plaintiffs to get their legal case heard in the court thought most likely to provide a favourable judgment, or by some defendants who seek to have the case moved to a different court. ...
In Conflict of Laws, domicile (termed domicil in the U.S.) is the basis of the choice of law rule operating in the characterisation framework to define a persons status, capacity and rights. ...
The lex domicilii is the Latin term for law of the domicile in the Conflict of Laws. ...
In the Conflict of Laws, habitual residence is the standard civil law connecting factor used to select the lex causae in cases characterised as status, capacity and family law. ...
In English usage, nationality is the legal relationship between a person and a country. ...
The term lex patriae is Latin for the law of nationality in the Conflict of Laws which is the system of public law applied to any lawsuit where there is a choice to be made between several possibly relevant laws and a different result will be achieved depending on which...
The lex loci arbitri is the Latin term for law of the place where arbitration is to take place in the Conflict of Laws. ...
The term lex situs (Latin) refers to the law of the place in which property is situated for the purposes of the Conflict of laws. ...
The lex loci contractus is the Latin term for law of the place where the contract is made in the Conflict of Laws. ...
The lex loci delicti commissi is the Latin term for law of the place where the tort was committed in the Conflict of Laws. ...
The lex loci solutionis is the Latin term for law of the place where relevant performance occurs in the Conflict of Laws. ...
The Doctrine of the Proper Law is applied in the choice of law stage of a lawsuit involving the Conflict of Laws. ...
The lex loci celebrationis is the Latin term for law of the place where the marriage is celebrated in the Conflict of Laws. ...
A choice of law clause in a contract is one whereby the parties to that contract specify which law (i. ...
A forum selection clause is a clause in a contract in which the parties agree that any litigation resulting from that contract will be brought in a specific forum. ...
The capacity of both natural and artificial persons determines whether they may make binding amendments to their rights, duties and obligations, such as getting married or merging, entering into contracts, making gifts, or writing a valid will. ...
In the Conflict of Laws, the validity of a contract with one or more foreign law elements will be decided by reference to the so-called proper law of the contract. ...
In Conflict of Laws, the choice of law rule for tort is the proper law. ...
In Conflict of Laws, the issue of marriage has assumed increasing public policy significance in a world of increasing multi-ethnic, multi-cultural community existence. ...
In Conflict of Laws, the issue of nullity (known as annulment in the United States) in Family Law inspires a wide response among the laws of different states as to the circumstances in which a marriage will be valid, invalid or null. ...
In modern society, the role of marriage and its termination through divorce have become political issues. ...
For the religious process, see Get (divorce document) A get or gett (גט) is the Jewish form of divorce which, when one is available in the state of residence, is supervised by a Beth Din (בית דין), a rabbinical court. ...
In Islamic Law, there are two forms of divorce known as the talaq and its less well-regulated version of triple talaq. ...
In Conflict of Laws, the subject of Property Law follows the terminology of the civil law systems out of Comity. ...
In the Conflict of Laws, the subject of succession deals with all procedural matters relevant to estates containing a foreign element whether that element consists of the identity of the deceased, those who may inherit or the location of property. ...
In the Conflict of Laws, issues relevant to the enforcement of foreign judgments are frequently regulated by bilateral treaty or multilateral international convention to facilitate the reciprocal recognition and enforcement of judgments between states. ...
International law deals with the relationships between states, or between persons or entities in different states. ...
Private International Law, International Private Law, or Conflict of Laws is that branch of public law regulating all lawsuits involving a foreign law element where a difference in result will occur depending on which laws are applied. ...
A judgment or judgement (see spelling note below), in a legal context, is synonymous with the formal decision made by a court following a lawsuit. ...
Res judicata (from res iudicata, Latin for a thing decided), more commonly res judicata in legal usage, is a common law doctrine meant to bar relitigation of cases between the same parties in court. ...
Legal proceedings to which all parties have been notified and given the opportunity to attend are referred to as inter partes (between parties in Latin) proceedings. ...
Sometimes a court may exercise jurisdiction over property located within the perimeter of its powers without regard to personal jurisdiction over the litigants; this is called jurisdiction in rem. ...
An appeal is the act or fact of challenging a judicially cognizable and binding judgment to a higher judicial authority. ...
A party is a person or group of persons that compose a single entity which can be identified as one for the purposes of the law. ...
A court is an official, public forum which a sovereign establishes by lawful authority to adjudicate disputes, and to dispense civil, labour, administrative and criminal justice under the law. ...
Comity is a term used in international law (and in the law governing relations between U.S. states) to describe an informal principle that nations will extend certain courtesies to other nations, particularly by recognizing the validity and effect of their executive, legislative, and judicial acts. ...
In law, jurisdiction from the Latin jus, juris meaning law and dicere meaning to speak, is the practical authority granted to a formally constituted body or to a person to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility. ...
For the purposes of Public International Law and Private International Law, a state is a defined group of people, living within defined territorial boundaries and subject, more or less, to an autonomous legal system exercising jurisdiction through properly constituted courts. ...
International law deals with the relationships between states, or between persons or entities in different states. ...
Peace Palace, seat of the ICJ. The International Court of Justice (known colloquially as the World Court or ICJ) is the principal judicial organ of the United Nations. ...
The United Nations (UN) is an international organization that describes itself as a global association of governments facilitating cooperation in international law, international security, economic development, and social equity. ...
The International Tribunal for the Law of the Sea is an intergovernmental organization created by the mandate of the United Nations. ...
For other uses of the initials WTO, see WTO (disambiguation). ...
European rules
Articles 27-30 of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (September 1968, O.J. 1998) as amended by the "Brussels Regulation", i.e. Council Regulation (EC) No 44/2001 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, lay down a framework of regulation to avoid conflicting judgments (see Brussels Regime). For an analysis of the relationship between EU law and the New York Convention, see Balkanyi-Nordmann (2002) The Brussels Regime is a set of rules regulating the allocation of jurisdiction in international legal disputes of a civil or commercial nature involving persons resident in a member state of the European Union (EU). ...
The European Union is unique among international organizations in having a complex and highly developed system of internal law which has direct effect within the legal systems of its member states. ...
The European Court of Justice ruled in Overseas Union Insurance Ltd. v New Hampshire Insurance Co. (1991) ECR I-3317 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 Case C-159/02 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 European Court of Justice (ECJ) is formally known as the Court of Justice of the European Communities, i. ...
In the Conflict of Laws, habitual residence is the standard civil law connecting factor used to select the lex causae in cases characterised as status, capacity and family law. ...
In Conflict of Laws, domicile (termed domicil in the U.S.) is the basis of the choice of law rule operating in the characterisation framework to define a persons status, capacity and rights. ...
In the law, a cause of action is a recognized kind of legal claim that a plaintiff pleads or alleges in a complaint to start a lawsuit. ...
In law, jurisdiction from the Latin jus, juris meaning law and dicere meaning to speak, is the practical authority granted to a formally constituted body or to a person to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility. ...
An injunction is an equitable remedy in the form of a court order that either prohibits or compels (restrains or enjoins) a party from continuing a particular activity. ...
The question is what constitutes the "same cause". In Gubisch Maschinenfabrik v Palumbo (1987) ECR 4861 (Hartley: 1988) and The Tatry v The Maciej Ratja (1994) ECR I-5439, 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. Drouot Assurances SA v Consolidated Metallurgical Industries (CMI Industrial Sites), Protea Assurance and Groupement d'Intérêt Économique (GIE) Réunion Européenne 1998/3 [1] Similarly, a wholly-owned subsidiary company is the same party as its parent. A plaintiff, also known as a claimant or complainant, is the party who initiates a lawsuit (also known as an action) before a court. ...
Subrogation is best known as a concept of insurance law, although it can be applied outside the law of insurance, although the general laws against maintenance and champerty would otherwise prevent such an arrangement. ...
A company is, in general, any group of persons, which are known as its members, united to pursue a common interest. ...
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 operated a rule 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 (see Eisengraeber: 2004 at pp19-21 for an explanation of difficulties in the English procedural system). In the law, a pleading is one of the papers filed with a court in a civil action, such as a complaint, a demurrer, or an answer. ...
Torpedo proceedings 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. The strategy is now termed the "torpedo". 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 the 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 pace 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 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. Forum shopping is the informal name given to the practice adopted by some plaintiffs to get their legal case heard in the court thought most likely to provide a favourable judgment, or by some defendants who seek to have the case moved to a different court. ...
The Convention for the Protection of Human Rights and Fundamental Freedoms, also known as the European Convention on Human Rights, was adopted under the auspices of the Council of Europe in 1950 to protect human rights and fundamental freedoms. ...
European Court of Human Rights building in Strasbourg The European Court of Human Rights, often referred to informally as the Strasbourg Court, was created to systematise the hearing of human rights complaints from Council of Europe member states. ...
United States In the United States, Seguros Del Estado SA v. Scientific Games Inc. U.S. 11th Circuit Court of Appeals (2001) [2] there was alleged parallel litigation in Georgia and 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.
External links - International Lis Pendens under the Brussels 1 Regulation Case Law [3]
- Text of the Brussels Convention [4]
References - Balkanyi-Nordmann, Nadine. (2002). The Perils of Parallel Proceedings". Nov 2001-Jan 2002. Dispute Resolution Journal.
- Blanke, G. (2004) "The Turning Tides of Turner". October BLR pp. 261-270.
- Eisengraeber, Julia. (2004). "Lis alibi pendens under the Brussels I Regulation - How to minimise "Torpedo Litigation" and other unwanted effects of the "first-come, first-served" rule." Centre for European Legal Studies. Exeter Papers in European Law No. 16. [5]
- Franzosi, Mario. (1997). "Worldwide Patent Litigation and the Italian Torpedo". 19 (7) European Intellectual Property Review p. 382 at 384
- Franzosi, Mario. (2002). "Torpedoes Are Here to Stay". 2 International Review of Industrial Property and Copyright Law p. 154.
- Hartley, Trevor. (1988). "Article 21: Lis Alibi Pendens" 13 European Law Review p. 217.
- Kwak, Kyung & Marceau, Gabrielle. (2002). "Overlaps and Conflicts of Jurisdiction Between the WTO and RTAs". Conference on Regional Trade Agreements World Trade Organisation. [6]
- Reinisch, August. (2004). "The Use and Limits of Res Judicata and Lis Pendens as Procedural Tools to Avoid Conflicting Dispute Settlement Outcomes", 3 The Law and Practice of International Courts and Tribunals pp. 37-77.
- Schutze, Rolf A. (2002) "Lis Pendens and Related Actions". 4(1) European Journal of Law Reform p. 57.
- Seatzu. F. (1999). "The Meaning of 'Same Parties' in Article 21 of the Brussels Jurisdiction and Judgments Convention", Vol 24(5) European Law Review pp. 540-544.
- Shany, Yuval. (2003) The Competing Jurisdictions of International Courts and Tribunals. Oxford: Oxford University Press. ISBN 0199258570.
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