Litispendence in the private international law of the European union

Abstract

Expansion of recognition of the force of international litispendence in civil and corporate matters to previously instituted proceedings before national courts outside of the European Union, which is based on the new rules of European private international law of the Brussels I bis Regulation, significantly contributes to opening of the European judicial space towards third countries. However, this raises several issues concerning delineation of the domain of application of common rules on European litispendence and cases covered by rules on internalisation of litispendence. Based on the analysis of facultative, exclusive and agreed jurisdiction, the author points at the need to differentiate between direct and indirect international jurisdiction and concludes that the rules on recognition of foreign litispendence should be extensively interpreted, so that the litispendence objection could be accepted based on common rules and outside of explicitly regulated cases of facultative jurisdiction. This is particularly applicable to recognition of exclusive jurisdiction of a foreign court, including the case when their jurisdiction is determined by a prorogation agreement between the parties, based on analogue rules applicable to European litispendence. However, due to absence of explicit rules an ex officio recognition cannot be expected from a court in a Member State, but the court shall determine discretionally whether it would, especially for reasons of good administration of justice, be justifiable to recognize a previously instituted proceeding outside of the European Union. Basis for such an extensive interpretation comes from the systemic and teleological interpretation of the rules of the Brussels I bis Regulation, including its Preamble, as well as analysis of the case law of national jurisdictions and the Court of Justice of the European Union. Strict application of the prior tempore rule can in certain cases prove to be unjustified, as demonstrated by some decisions of the Court of Justice of the European Union. Explicit exception recognizes the priority of the later instituted proceeding before the court of another EU Member State, whose competence is determined by a prorogation agreement. This exception should be extended to agreed competence of a court of a third country. Deviation from the temporal priority should also be considered in cases of dilatory initiation of proceedings and similar abuses in determination of jurisdiction, with an exclusive aim to acquire the right to lodge a litispendence objection in a later instituted concurrent proceeding before a foreign court. Such situations demand a novel approach in determination of the notion of abuse of power in private international law of the European union, so the conflict between proceedings would be solved in a satisfactory manner.