Introduction
The growth of international commerce and travel has inevitably led to a rise in cross-border disputes. A significant procedural challenge in this context is the issue of parallel proceedings, where the same or similar legal action between the same parties is pursued simultaneously in the courts of different countries. This creates risks of inconsistent judgments, wasted costs, and tactical litigation. The appropriate way to manage this situation is a subject of considerable controversy. This essay will argue that the statement in the question is correct. While the fundamental philosophical and doctrinal split between the common law and civil law traditions is the primary source of this controversy, it is not the sole factor. The debate is also shaped by the influence of supranational legal instruments, tensions within the common law world itself, and differing views on judicial policy and international comity. This essay will first outline the core divide between the common law and civil law approaches, before discussing these other factors to demonstrate that the controversy is more multifaceted than a simple binary opposition.
The Foundational Common Law/Civil Law Divide
The most prominent fault line in the debate over parallel proceedings lies in the different approaches adopted by common law and civil law systems. The English common law response is the doctrine of forum non conveniens (FNC), a discretionary power allowing a court to stay proceedings over which it has jurisdiction. The leading authority is Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460, which established a two-stage test. First, the defendant must show that there is another available forum which is "clearly or distinctly more appropriate" for the trial of the action (the "natural forum"). In determining this, the court will consider connecting factors such as the residence of the parties, the location of witnesses and evidence, and the law governing the dispute (Clarkson and Hill, 2011). If such a forum is identified, the second stage requires the claimant to demonstrate that they would be deprived of a "legitimate personal or juridical advantage" if the case were to be tried in the foreign forum, and that justice requires the English court to retain the case. This approach is flexible, case-specific, and focuses on achieving practical justice by ensuring the dispute is heard in the most suitable location.
By contrast, the traditional civil law approach is far more rigid, embodied in the principle of lis alibi pendens. This doctrine is not discretionary but operates as a mandatory rule based on chronology. Generally, the court "first seised" (the court in which proceedings were first commenced) is given priority, and any court in another jurisdiction "second seised" with the same dispute must stay its proceedings or decline jurisdiction. This approach prioritises legal certainty, predictability, and the avoidance of irreconcilable judgments. As Fentiman (2010, p. 281) notes, this reflects a civil law preference for "rules of attribution over discretionary allocation". A key example of this approach was codified within the European Union's Brussels I Regulation (recast) (Regulation (EU) No 1215/2012), which governed jurisdiction within the EU. Article 29 of the Regulation stipulated that, where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised must of its own motion stay its proceedings. This creates a clear 'first come, first served' rule. The controversy arising from this divide is clear: common lawyers often view the lis pendens rule as inflexible and a tool for tactical litigation (the so-called ‘Italian torpedo’, where a party initiates proceedings in a notoriously slow jurisdiction to frustrate the main action), while civil lawyers can see FNC as uncertain, unpredictable, and a source of costly preliminary litigation (Briggs, 2013).
The Impact of Supranational Legal Instruments
The controversy, however, extends beyond this traditional doctrinal disagreement. A significant factor is the tension created by the imposition of civil law-style rules upon common law systems through international instruments. For the United Kingdom, its membership in the European Union created a dual system for managing parallel proceedings. The European Court of Justice (ECJ) in Owusu v Jackson (Case C-281/02) [2005] ECR I-1383 delivered a landmark ruling that an English court could not use its FNC doctrine to stay proceedings in favour of the courts of a non-Member State (in this case, Jamaica) when the English court's jurisdiction was established under the Brussels Convention. The ECJ held that the jurisdictional rules of the Convention (the predecessor to the Brussels I Regulation) were mandatory and did not permit a national court to decline jurisdiction based on a discretionary test.
This decision effectively disabled FNC in a significant category of cases, forcing English courts to adopt the rigid civil law approach when EU law was engaged. The decision was highly controversial in the UK, as it was seen to undermine the well-established and flexible Spiliada test in the name of a European legal uniformity that did not necessarily serve the interests of justice in the individual case (Briggs, 2005). This shows that the controversy is not just about abstract preferences but about the very real conflict between national legal traditions and the demands of regional legal integration. The UK's departure from the EU and its uncertain future relationship with the Lugano Convention (which largely mirrors the Brussels regime) has only added further layers to this complexity, demonstrating that the political and legal framework of international relations is a source of controversy in its own right.
Internal Common Law Nuances and Policy Disagreements
Furthermore, to suggest the controversy is purely a common law versus civil law issue ignores the fact that there is no single, monolithic common law position. While the Spiliada test is influential, different common law jurisdictions apply the FNC doctrine with different nuances. The United States, for instance, has its own version of the doctrine which, in some respects, can be seen as giving greater weight to the claimant’s choice of forum than the English approach, though the practical application varies between federal and state courts. These internal variations show that the debate about the correct balance between flexibility and certainty exists within the common law world, not just between it and the civil law tradition.
Moreover, the controversy is fuelled by deeper disagreements about judicial policy, particularly concerning the use of anti-suit injunctions. An anti-suit injunction is a court order restraining a party from commencing or continuing with proceedings in a foreign jurisdiction. From an English perspective, it is the proactive counterpart to FNC, used to prevent vexatious or oppressive foreign litigation. However, from a civil law perspective, such an injunction is often viewed as an exorbitant and unacceptable interference with the sovereignty of a foreign court (Hartley, 2009). The ECJ effectively banned their use in the EU context in Turner v Grovit (Case C-159/02) [2004] ECR I-3565. This aspect of the controversy is not merely about which court should hear a case (forum conveniens), but whether one court has the right to stop another from hearing it at all. This raises fundamental questions of international comity and judicial power that go beyond the specific mechanisms for staying proceedings and highlight a more profound clash of legal cultures.
Conclusion
In conclusion, the statement that the controversy over parallel proceedings is not simply a matter of the common law/civil law divide is undoubtedly correct. That divide, which pits the discretionary, justice-focused FNC doctrine against the certain, rule-based lis pendens principle, is the historical and doctrinal foundation of the debate. However, to stop there would be to oversimplify a complex, multi-layered issue. The controversy has been significantly shaped and intensified by the impact of supranational legal regimes, most notably the former EU Brussels regime, which in cases like Owusu v Jackson forced a common law system to disapply its own doctrine. The debate is also informed by different policy considerations and judicial philosophies, starkly illustrated by the conflicting views on the legitimacy of anti-suit injunctions. Finally, variations within the common law world itself show that the search for the right approach is an ongoing process. Therefore, the controversy is a product of a complex interaction between doctrinal tradition, international treaty obligations, and fundamental disagreements about the proper role of a national court in a globalised legal environment.
References
Briggs, A. (2005) The Brussels Convention. Law Quarterly Review, 121, pp. 182-186.
Briggs, A. (2013) The Conflict of Laws. 3rd edn. Oxford: Oxford University Press.
Clarkson, C.M.V. and Hill, J. (2011) The Conflict of Laws. 4th edn. Oxford: Oxford University Press.
Fentiman, R. (2010) Parallel Proceedings in Europe. In: J. Fawcett, J. Harris and M. Bridge (eds.) International Sale of Goods in the Conflict of Laws. Oxford: Oxford University Press, pp. 279-320.
Hartley, T.C. (2009) International Commercial Litigation: Text, Cases and Materials on Private International Law. 2nd edn. Cambridge: Cambridge University Press.
Case Law
Owusu v Jackson (Case C-281/02) [2005] ECR I-1383.
Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460.
Turner v Grovit (Case C-159/02) [2004] ECR I-3565.
Legislation
Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast).
