Lis alibi pendens : the rules on parallel proceedings in the reform of the Brussels I regulation

The provisions on lis pendens set in the instruments governing jurisdiction, recognition and enforcement of decisions in civil and commercial matters slightly changed over the years: the original version of Art. 21 of the Brussels Convention was modified by the San Sebastian Convention, in order to avoid the risk of “negative jurisdictional conflicts”; the Brussels I Regulation inserted a specific rule (Art. 30) to define the moment proceedings could be considered to be pending before the Member States’ courts. Even though such modifications affected some important points (e.g., the new rule in the Brussels I Regulation severed any link between the actual pendency of litigation according to the forum rules and the “pendency” for the purposes of the coordination of the jurisdiction of the Member States’ courts), (a) the underlying purpose of the rules and (b) the mechanism in which this was translated remained the same: (a) the intent to avoid irreconcilable judgments at the earliest possible stage led to (b) provisions making it compulsory for the court second seized to stay proceedings without (nearly) any exception to the priority rule. The practical application of the mechanism, however, showed some difficulties, highlighted by the ECJ jurisprudence. The proposed revision of the Brussels I Regulation deals with those issues. The proposed modifications introduce major changes in the lis pendens system – not only technical in nature – and chiefly so with respect to its application vis-à-vis proceedings pending before the courts of third States. In fact, the envisaged new system greatly departs from the principles set by the ECJ in its jurisprudence (Owusu) by allowing a sort of “discretionary” exercise of the jurisdiction granted by the Brussels I Regulations; in addition, doubts can be voiced with regard to the conditions for the stay of the proceedings, as well as on the rule concerning the statute of limitations; more in general, the effects on such mechanism of a possible deletion (as proposed in the draft report to the Committee on Legal Affairs of the European Parliament) of the rules extending erga omnes the application of the Brussels I Regulation have to be carefully considered. Finally, thoughts must be given with regard to the compatibility of the solution intended to reinforce the choice-of-forum agreements with the provisions contained in the Hague Convention of 30 June 2005.