Parallel Proceedings – Lis Pendens and Concurrent Procedures (original) (raw)

Planning the Future of Cross Border Families, 2020

Abstract

The cornerstone of EU civil justice is the free circulation of judgments. To achieve that overall aim, the EU has systematically unified private international law rules. Member States afforded the EU with internal and external competence to enact a system that assures smooth recognition and enforcement. Leaning on the principle of mutual trust they aim to accomplish the dream of the ‘ fifth market freedom ’ – free circulation of judgments. However, such a fairy tale may turn into an action movie or a soap opera if rules are applied in an abusive way. One of the most prominent examples is the misuse of alternative grounds of jurisdiction available to applicants. Despite the unification in international jurisdiction, the potential of conflicting decisions is not eliminated, particularly if the grounds are alternative instead of being in a strict hierarchical order. Thus, the potential risk of contradictory decisions is high. The system of preventing parallelism of procedures and judgments through regulations is multi-layered. The burden traditionally falls on lis pendens and related actions, which prevent contradictory judgments from arising. However, lis pendens and concurrent proceedings ’ rules may not be isolated from other provisions of the regulation. The root of the European lis pendens rules is the autonomous rule on determining the moment when the court is deemed to be seised. The provision on seising a court, addressed in combination with the lis pendens rule, occupies most of the academic attention. The aim of this chapter is twofold: to provide a framework for different aspects of parallel procedures de lege lata in the practice of the national courts ; and to offer solutions for de lege ferenda legislation. The focus is given to the pendency rule. Such elaboration triggers the rules currently contained in EU legislation on international family and succession law. The most prominent problems detected by the collected case law are from several jurisdictions and possible improvements are suggested. Proposals for future amendments of EU legislation are offered, in relation to the ongoing legislative process of the Brussels IIter Recast Proposal.

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