Introduction
The issue of international parallel proceedings, where the same or similar legal disputes are initiated in the courts of different countries, presents a significant challenge for private international law. A core aspect of this challenge is deciding which court should ultimately hear the case. The statement in the question suggests that the controversy over how to resolve these jurisdictional conflicts is not merely a product of the differing philosophies of the Common Law and Civil Law traditions. This essay will argue that this statement is correct. While the traditional divide between the discretionary Common Law doctrine of forum non conveniens and the more rigid, rule-based Civil Law approach of lis alibi pendens is a crucial starting point, the modern application of forum non conveniens in England and Wales reveals significant internal complexities and debates. These complexities, particularly concerning access to justice and the doctrine's application in a post-Brexit landscape, demonstrate that the controversy is multifaceted and extends beyond a simple jurisprudential clash.
The Common Law and Civil Law Divide
The fundamental difference in approach to parallel proceedings is often framed as a contrast between Common Law flexibility and Civil Law certainty. The Civil Law tradition, exemplified by the rules in the former Brussels I Recast Regulation, typically favours a rule-based approach known as lis alibi pendens. Under this principle, jurisdiction is generally awarded to the court ‘first seised’ of the action, meaning the court in which proceedings were first initiated. This creates a clear and predictable ‘race to the courthouse’ but can be criticised for its rigidity, as it may lead to a case being heard in a forum that has little connection to the dispute, simply because it was the first to be approached.
In contrast, the English Common Law has developed the discretionary doctrine of forum non conveniens, meaning the ‘forum is not convenient’. This allows a court with jurisdiction to stay (or halt) proceedings if it determines that another available forum is clearly more appropriate for the trial. The foundational principles for the modern doctrine were established by the House of Lords in Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460. Lord Goff outlined a two-stage test. Firstly, the defendant seeking the stay must demonstrate that another available forum is ‘clearly or distinctly more appropriate’ for the case to be tried. The court considers various ‘connecting factors’, such as the residence of the parties, the location of witnesses and evidence, and the law governing the dispute (Briggs, 2018). Secondly, if the court is satisfied that another forum is prima facie more appropriate, the burden shifts to the claimant to show that they will be denied ‘substantial justice’ in that foreign forum. This test allows for a detailed, case-specific analysis but has been criticised for creating uncertainty and expense at the preliminary stage of litigation.
Internal Controversies within Forum Non Conveniens
The statement that the controversy is not simply a matter of a Common Law/Civil Law divide is best supported by examining the internal tensions within the forum non conveniens doctrine itself. The application of the Spiliada test is far from a simple mechanical exercise and has generated considerable debate within the English judiciary.
The Meaning of ‘Substantial Justice’
The second stage of the Spiliada test, concerning ‘substantial justice’, is a significant source of controversy. It requires the court to evaluate the justice system of another sovereign state, which is a sensitive exercise. A key issue is how to treat ‘juridical advantages’ that a claimant may have in England but would lose in the foreign forum. These might include higher damages awards, more extensive disclosure procedures, or the availability of public funding or ‘no win, no fee’ arrangements.
The courts have held that the loss of a mere tactical advantage is not enough to constitute a denial of substantial justice. However, where the advantage is so significant that its absence would effectively deny the claimant a fair trial, a stay may be refused. In Connelly v RTZ Corp plc [1998] AC 854, the House of Lords considered that the unavailability of legal aid or conditional fee arrangements in South Africa for a complex personal injury claim could mean that the claimant would be unable to pursue his case at all, thus denying him substantial justice. Similarly, in Lubbe v Cape plc [2000] 1 WLR 1545, the unavailability of a mechanism for group litigation in South Africa to handle thousands of asbestos-related claims was a decisive factor in the English court retaining jurisdiction. These cases show that the doctrine is not blind to the practical realities of litigation and that the concept of justice extends beyond the formal availability of a court to the practical ability of a party to bring their case (Fentiman, 2015). This balancing act between respecting foreign legal systems and ensuring practical access to justice is an inherent source of controversy within the common law world itself.
Application in Transnational Torts
Further complexity is evident in recent ‘parent company liability’ cases. In Vedanta Resources plc v Lungowe [2019] UKSC 20 and Okpabi v Royal Dutch Shell plc [2021] UKSC 3, the Supreme Court heard claims brought by foreign claimants against UK-domiciled parent companies for environmental damage and human rights abuses allegedly caused by their foreign subsidiaries. The defendants argued that England was forum non conveniens and the cases should be heard in Zambia and Nigeria, respectively.
In both cases, the Supreme Court held that the claims could proceed in England. A crucial factor was the risk that the claimants would be unable to obtain substantial justice in their home jurisdictions due to a lack of resources, legal expertise for such complex claims, and the practical difficulties of bringing a group action against a well-resourced multinational. The judgments demonstrate a willingness by the English courts to act as a forum for claims against UK-based multinationals, even where the harmful acts occurred abroad. This illustrates a major internal policy debate within the common law: the extent to which English courts should facilitate access to justice for foreign claimants against English-domiciled companies, which goes far beyond a simple comparison with civil law rules.
The Impact of Brexit
For several decades, the scope of forum non conveniens was significantly curtailed in cases involving parties domiciled in the European Union. The Brussels I Regulation (and its successor, the Recast Regulation) established a mandatory jurisdictional regime based on the defendant’s domicile. In the landmark case of Owusu v Jackson (Case C-281/02) [2005] QB 801, the Court of Justice of the European Union ruled that an English court could not use forum non conveniens to stay proceedings in favour of a non-Member State court (Jamaica) when the defendant was domiciled in England. This effectively imposed a civil-law-style mandatory jurisdiction model, overriding the traditional common law discretion.
Following the UK’s exit from the EU, the Brussels regime no longer applies to new proceedings. Consequently, the common law doctrine of forum non conveniens has been fully revived in English law and now applies to cases involving EU-domiciled defendants in the same way it applies to defendants from the rest of the world (subject to the limited application of the 2005 Hague Convention on Choice of Court Agreements). This revival does not resolve the controversies; instead, it re-ignites them. The English courts are now once again fully responsible for exercising this discretion in a European context, bringing the inherent tensions of the Spiliada test back to the forefront in a significant number of cases. The post-Brexit landscape thus highlights that the debate is not static but is continually reshaped by political and legal frameworks.
Conclusion
In conclusion, the statement that the controversy surrounding international parallel proceedings is not simply a matter of a Common Law/Civil Law divide is well-founded. While the distinction between the discretionary forum non conveniens doctrine and the rule-based lis alibi pendens approach provides an essential framework, it is an oversimplification of the modern legal reality. The application of the Spiliada test in England and Wales is itself fraught with controversy and complexity. The difficult judicial balancing act required to determine the ‘appropriate forum’ and to define ‘substantial justice’, particularly in the context of transnational corporate liability and access to justice for vulnerable claimants, reveals deep-seated debates within the Common Law. The post-Brexit revival of the doctrine’s full scope has only served to sharpen these internal controversies. Therefore, the appropriate way to deal with international parallel proceedings remains a contested and evolving issue, with the most significant debates often occurring not between legal traditions, but within them.
References
Briggs, A. (2018) Private International Law in English Courts. Oxford: Oxford University Press.
Connelly v RTZ Corp plc [1998] AC 854.
Fentiman, R. (2015) International Commercial Litigation. 2nd edn. Oxford: Oxford University Press.
Lubbe v Cape plc [2000] 1 WLR 1545.
Okpabi v Royal Dutch Shell plc [2021] UKSC 3.
Owusu v Jackson (Case C-281/02) [2005] QB 801.
Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460.
Vedanta Resources plc v Lungowe [2019] UKSC 20.
