A Hague Parallel Proceedings Convention: Architecture and Features

Abstract

The Hague Conference on Private International Law has established a working group to examine a possible international instrument applicable to the same or related actions in courts in different countries. The goal of the project should be to improve the efficiency of resolving such situations and providing as complete a resolution as possible by channeling litigation to the “better forum.” Current approaches—lis alibi pendens in the civil law world and forum non conveniens in the common law world—are not working well and are likely to be increasingly inadequate in an ever more complex and fluid world. In this Article we provide suggestions on the architecture and certain critical features of a convention in this area. The general architecture of such an instrument must include (1) criteria for determining the “better forum” and (2) mechanisms that move cases to that forum. It should also include (1) a requirement that the parties notify the relevant courts when the same or related proceedings are lodged in two or more fora; (2) a mechanism for judicial communication to discuss the situation upon notification; (3) a fallback rule if the better forum declines jurisdiction; (4) necessary and appropriate procedural provisions, for example to expedite movement of evidence to the better forum; and (5) provisions addressing expedited recognition and enforcement of the judgment from the better forum. Because the ultimate users of any instrument will be judges and litigators, the instrument should be framed in terms they will understand. Accordingly, the instrument should rest upon relatively simple, empirical tests that courts around the world can apply easily, rather than on complex legal concepts drawn from one or another legal tradition. The tests, in turn, should be keyed to the fundamental objective of the instrument: the efficient resolution as completely as reasonably possible of parallel proceedings and related actions. This Article illustrates how such an approach might be fashioned by suggesting empirical tests to determine two critical decision points for the instrument, substantive scope and determining the better forum.

Keywords: parallel proceedings, forum non conveniens, lis pendens, international litigation, private international law, jurisdiction, recognition of judgments, international economic law, comparative law, Hague Conference on Private International Law, international law, treaties

JEL Classification: K13, K33, K41