Parrish on Duplicative Foreign Litigation
Austen L. Parrish, who teaches at Southwestern Law School, has published Duplicative Foreign Litigation in the last issue of the George Washington Law Review. The abstract reads:
What should a court do when a lawsuit involving the same parties and the same issues is already pending in the court of another country? With the growth of transnational litigation, the issue of reactive, duplicative proceedings—and the waste inherent in such duplication—becomes a more common problem. The future does not promise change. In a modern, globalized world, litigants are increasingly tempted to forum shop among countries to find courts and law more favorably inclined to them than their opponents.
The federal courts, however, do not yet have a coherent response to the problem. They apply at least three different approaches when deciding whether to stay or dismiss U.S. litigation in the face of a first-filed foreign proceeding. All three approaches, however, are undertheorized, fail to account for the costs of duplicative actions, and uncritically assume that domestic theory applies with equal force in the international context. Relying on domestic abstention principles, courts routinely refuse to stay duplicative actions believing that doing so would constitute an abdication of their “unflagging obligation” to exercise jurisdiction. The academic community in turn has yet to give the issue sustained attention, and a dearth of scholarship addresses the problem.
This Article offers a different way of thinking about the problem of duplicative foreign litigation. After describing the shortcomings of current approaches, it argues that when courts consider stay requests they must account for the breadth of their increasingly extraterritorial jurisdictional assertions. The Article concludes that courts should adopt a modified lis pendens principle and reverse the current presumption. Absent exceptional circumstances, courts should usually stay duplicative litigation so long as the party seeking the stay can establish that the first-filed foreign action has jurisdiction under U.S. jurisdictional principles. This approach—pragmatic in its orientation, yet also more theoretically coherent than current law—would help avoid the wastes inherent in duplicative litigation, and would better serve long-term U.S. interests.
The article can be downloaded here.
1. Duplicative litigations result in waste of judicial resources, whether domestic or international, and in theory it should be avoided. But in reality the concern of this waste is outweighed by other considerations, like the judicial sovereignty (or an “unflagging obligation”) and protection of national interests.
2. Only by establishing mutual trust between the relevant nations can this problem be solved satisfactorily. Duplicative litigations can be effectively avoided within a sovereign nation with a mechanism like lis pendens or the superior court having the power to make a choice between the two competent courts, since there are mutual trust between those courts. Another example is the EU with Brussels Regulation as the uniform law applicable in all EU member states. EU states share similar cultural and political background and values and their goal is to eventually set up a United States of Europe, which goal lays down a foundation for solving the duplicative litigations.
3. It is difficult but not impossible to establish mutual trust to some extent between nations in this world, which have distinctive cultural background and political systems. Reluctance to stay its own proceedings and giving way to foreign jurisdiction is predicable and understandable against this background. This is partly attributable to an illusion (or a reality to certain extent) that a court is in the best position to protect the interests of its own nationals, which tempts the court not to abdicate its own competence in a case involving its own national. Legal theories and approaches can be invented to accommodate this illusion/reality.
4. At present, duplicative or parallel litigations is an international reality and it cannot be avoided. Each country can exercise its own judicial jurisdiction over an international action at its own will, subject only to those very limited exceptions established under public international law, according to 1927 Lotus case. A country only gives up its jurisdiction over a case if it considers such is consistent with its long-term national interest.
5. The effective way to reduce duplicative litigations is conclusion of international treaties on civil and commercial jurisdiction. Though the efforts of Hague Conference on Private International Law on a comprehensive jurisdictional convention proved to be a failure so far, there is still prospect that the dream can be realized in the future, for there are common interests of the nations in having such a convention into effect. The globalization and interweaving of the economy of each nation will be the driving force.