Lis Alibi Pendens under the Council Regulation (EC) No 44/2001 on jurisdictionand the recognition and enforcement of judgments in civil and commercial matters
Lis Alibi pendens is Latin for ‘suit pending elsewhere.’ Both Articles 27 and 28 of the EU Regulation 44/2001 regulate the existence of lis alibi pendens and related judicial actions. In particular it is a doctrine that regulates the jurisdictional relationship of courts hearing concurrent proceedings involving the same or related causes of action between the same parties pending in the courts of different Member States.
In the English case of Ferrexpo AG-and-Gilson Investments Limited and ors EWHC 721, it was stated that where Article 27 of the EU Regulation is engaged, there is no scope for the operation of Article 28, and that once there are proceedings in different Member States involving the same cause of action and between the same parties, the matter is governed by Article 27 and its mandatory regime. Hence it can be argued that as per Article 27 of the EU Regulation 44/2001, the Court has the power to stay on its own motion(automatic power) an action filed before it when there is an action filed before the Court of another Member State involving the same cause of action and between the same parties.
Likewise of great significance is the fact that Article 27 covers also non Member States which was further analyzed in the case of Ferrexpo. Specifically the Ferrexpo case is important for the below reasons :
(a) It was decided that both Articles 27 and 28 are also applied with regards to proceedings pending before non Member States.
(b) That the application of Articles 27 and 28 of the EU Regulation 44/2001 is not prevented or affected by the legal principles in the decision of Owusu–v- Jackson Case C-281/02.
In relation to Article 28 where there are pending related actions before the courts between different member states, which again extends to non Member States as analyzed in Ferrexpo, then the court has the power to stay (discretionary power) the action before it under the precondition that thecourt first seised has jurisdiction over the actions in question and its law permits the consolidation thereof. Hence irrespective of the legal principles in Owusu-v-Jackson Article 28 applies.
In the case of Tatry (1994) CASE C-406/92,the European Court stated that Article 28 of the EU Regulation needs to be interpreted broadly to cover all cases where there is a risk of conflicting decisions, even if the judgments can be separately enforced and their legal consequences are not mutually exclusive. Additionally, this Article was also the subject of interpretation for Courts who were eager in various cases such as Sarrio SA v. Kuwait Investment Authority  UKHL 49, to analyze the meaning of ‘related actions’. In the case the Plaintiff issued proceedings in Spain based on contract and while these Spanish proceedings were pending, the Plaintiff also started English proceedings against the same defendant claiming damages (based on tort). The House of Lords decided that both proceedings involved ‘ related actions’ developing a broad common sense approach hence decided to decline jurisdiction under Article 28.2.
Therefore the above illustrate how the courts have discretionary powers depending on the matter at issue to use either Article 27 or Article 28 accordingly. What is of great curiosity is to see how future courts will interpret Article 27 and Article 28 and whether they will continue to adopt the broad approach as in the case of Sarrio v Kuwait.
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