Mutual Recognition, Choice of Forum and Lis Pendens: A Civil Law Threesome Transposed

Abstract

The area of freedom, security and justice, built on the notion of mutual recognition, operates a hard and fast rule of ne bis in idem in the field of criminal law. This rule is supported by a system of voluntary consultation in case of parallel proceedings, but this system is incomplete. There is no common binding procedure for dealing with lis pendens and related actions. This is all the more problematic as the recognition rule is not supported by a preliminary agreement on the distribution of jurisdiction between the Member States in intra EU cases. The policy options described in the ELI proposal address the latter two shortcomings. In this contribution I use insights from the field of private international law to comment on the current state of the law in criminal law and to discuss the solutions embedded in the proposals. The Brussels I regulation 1215/2012 (Brussels I recast or Brussels Ibis) will function as the main comparator, though at some point references will be made to the wider body of private international law instruments.

Keywords: criminal law, lis pendens, european contract law, Brussels I regulation, private international law, freedom, security, justice

JEL Classification: K12