Rushing to Court or Rushing to Judgment?
Should lis pendens also result in denying recognition to judgments issued by foreign courts seized second?
No, ruled the French Supreme court for civil and criminal matters (Cour de cassation) in a case involving a French court and an American court. A Franco-American couple was breaking up. The French husband initiated divorce proceedings in Toulouse, France, on October 28, 2005. A month later, on November 21, 2005, the American wife also sought divorce before a Massachusetts Court. The American court was seized second, but it caught up and delivered a divorce judgment much before the French court, on August 16, 2006. The woman sought recognition of the American judgment in France. In May 2008, the Toulouse court held that the foreign jugdment was entitled to be recognized in France, and thus terminated the French proceedings.
Under the French common law of jurisdiction, the rule of lis pendens applies to proceedings initiated first in a foreign country. When this happens, French courts may decline jurisdiction if an eventual jugdment of the foreign court would be recognized in France.
Here of course, the situation is different, as the French court was seized first. The question is therefore whether lis pendens could produce an indirect effect. One of the requirements for the recognition of foreign judgments is that the foreign court have jurisdiction from the perspective of the French legal order. Could a foreign court seized second lack such jurisdiction because it ignored French proceedings initiated first? Until 2006, there was no real need to answer this question, since the mere fact that the party who would resist recognition was French was enough. However, article 15 of the Civil Code is no bar anymore to the recognition of foreign judgments in France.
In a judgment of 30 September 2009, the Cour de cassation confirmed the judgment of the Toulouse court. It merely applied the traditional requirements of the French common law of judgments and found that the American judgment deserved recognition. With respect to the lis pendens situation, it held that it was irrelevant.
Conclusion: what really matters when you might be, or even have been, sued before a French court is not to rush to court, but to rush to judgment.
Without having read the judgment, the French court’s focus on the date of judgment rather than date of commencement/institution seems problematic for the reason that the former (unlike the latter) is, to a large extent, out of the parties’ control. It is also inconsistent with the principle of discouraging parallel proceedings (recognised in Australian courts), to avoid the risks of inconsistent outcomes and to judicial comity, and reduce unnecessary legal costs.
I see your point, but what is the alternative? If the French court had denied recognition to the American judgment for being the court seized first, the result would have been that the French proceedings would have continued and eventually led to a French judgment. But the American jugdment would remain, and you would have a French judgment on the top of it. So the French rule might not discourage parallel litigation, but at least it avoids conflicts of decisions.
Agreed Gilles. The decision seems sound when one considers the French husband’s failure to seek a stay of the American proceeding on the basis of the lis alibi pendens principle: Seguros Del Estado SA v Scientific Games Inc  USCA11 319; 262 F3d 1164. By the time it got to the stage of recognising the foreign judgment, the French court’s hands were tied.
This type of forum shopping and divorce tourism should not have been upheld by the French Court. If the wife had already received service of papers for the French action, either the American courts should have declined jurisdiction on her suit (assuming the husband was savvy enough to bring this to the American or even French court’s attention) or the French courts should have declined to enforce the American judgment. This is a very bad precedent. This sends the message to forum shoppers – particularly those with deep pockets – that if they don’t like their odds in the French jurisdiction they can just run off and commence a parellel action someplace else, like America, and have the French courts be bound by what happens in the second jurisdiction (even if the French action was commenced first). This creates confusion, inconsistency and inequity not only between the parties, but between the laws of both countries.