Coordination and Coordination in the Era of Globalization

1. This chapter explores the significance of coordination and cooperation among courts dealing with civil matters in the context of globalization. It addresses key themes such as provisional measures, parallel proceedings, and communication between judges. The first subchapter on provisional measures examines the jurisdiction to grant such measures in a cross-border context, discussing various approaches to jurisdiction and the possibility of granting extraterritorial provisional measures. The text also delves into the management of parallel interim proceedings and concurrent provisional measures, outlining paradigms and doctrines aimed at effectively handling such situations. The second subchapter provides an overview of regulatory approaches to dealing with the phenomenon of parallel proceedings. It explores various doctrines and tools employed for this purpose and examines specific points of differentiation and convergence among them. Finally, the third subchapter explores coordination through communication between judges, focusing on the overarching trends in this area, ie, the tendency to institutionalize the judicial communication and the pursuit of its legitimacy.

1        Provisional Measures

1.1        Introduction

2. The administration of justice can at times turn into a lengthy process and despite the enormous efforts put around the globe to remedy this regrettable state of affairs, the litigants are still quite accustomed to the sour flavour of delayed justice.^[3] ‘Provisional measures’ can be viewed as an imperfect remedy to this less than ideal judicial world.^[4] 
3. The practical importance of ‘provisional measures’ in cross-border contexts has increased considerably over the last few decades. Unsurprisingly, the processes of globalization have also driven changes in practice of granting provisional measures that appear to impact persons and assets situated in the territory of other states.^[5] As the intensity of transnational litigation in the globalized world increases both in number and complexity, so does the need for related provisional relief. The increased mobility of people, goods, business and capital has made it far easier to frustrate the effective enforcement of private and public claims. Internet has created a space that knows no border or at least attempts to pretend that there are none. This not only gave rise to further enforcement-related concerns resulting from, among others, the emergence of delocalized assets (eg, cryptocurrencies),^[6] but has also erected a borderless arena where all sorts of human activity are made possible by non-State actors. In a world so configured, the absence of adequate and enforceable provisional protection can give rise to the proliferation of legal proceedings. A litigant may be tempted to initiate proceedings and/or seek provisional relief in any jurisdiction where they see some prospects for future enforcement of their claims.
4. Not unlike most precious medicines, effective provisional measures are not always universally available. Due to the diversity and varying availability of provisional measures, some jurisdictions are requested more frequently than others to grant specific measures, although their courts would not normally be called upon to resolve the dispute between the parties. Such a practice not only disconnects the procedure on provisional measures from the proceedings on the substance of the matter but also relocates the dispute on provisional measures far from the proceedings on the substance. In the most basic configuration, a court of one jurisdiction is requested to provide provisional relief, while a court in another jurisdiction is called upon to decide on the substance of the matter. The conceivable constellations go far beyond that. Each and every of them may raise a series of questions relating to the interconnectedness of those proceedings and their outcomes.
5. International courts and tribunals generally have the competence to issue provisional measures, usually bestowed upon them by the respective statutory document^[7] or at least affirmed in the relevant sets of procedural rules.^[8] 
6. By contrast, the legal framework for provisional measures granted by national courts has been mainly provided for the purposes of domestic litigation. In the face of the challenges brought by globalization, there seems to be an unprecedented need to address also the cross-border dimension of this matter.^[9] And, indeed, efforts are being made on international and regional levels to develop uniform frameworks for seamless operation of provisional measures.^[10] In their attempt to secure cooperation or at least coordination between the courts involved in trans-border cases, a number of soft law sources address the phenomenon of provisional measures.^[11] Taking these efforts one step further, a framework establishing a uniform provisional measure for debt recovery has even been implemented among the EU Member States.^[12]

1.2        Notion of ‘Provisional Measures’ and Scope of Inquiry

7. There is no uniform nomenclature to describe the tools that can be deployed to temporarily secure a particular outcome of proceedings pending or contemplated domestically or abroad, either by maintaining status quo or by preserving the likelihood of future fruitful enforcement. Despite functional similarities, a variety of terms are used around the world to describe the measures that serve this purpose. The non-definitive nature of the result that those measures aim at is described by terms such as ‘preliminary,’ ‘interlocutory,’ ‘interim’ or ‘provisional’.^[13] There is also no notion consistently employed in order to designate the vehicle by which that aim is supposed to be achieved. The terms ‘injunction’, ‘order’, ‘relief’ or ‘attachment’ have their proper place in the legal vocabulary of the jurisdictions employing them,^[14] but with no additional detail and context, their particularities are at risk of being lost in a comparative discourse. Furthermore, as the choice of local terminology is shaped by the local legal culture and the historical development of the legal system, the same term may have different meanings or connotations in different jurisdictions.
8. As a consequence, the present subchapter departs from local terminology used in the jurisdictions surveyed. The notion of ‘provisional measures’ has been chosen as a collective label for all the tools that share a common denominator: the purpose of the measures surveyed is to temporarily safeguard effective judicial protection of some rights without definitively adjudicating the substance of the matter.^[15] Such a functional understating of the notion of ‘provisional measures’ encompasses a plethora of remedies available in various jurisdictions: asset freezing injunctions, injunctions to restrain fraudulent conveyances, quia timet injunctions and many others.
9. Detailed definitions of similar notions (ie, ‘provisional and protective measures’), coined with the assistance of comparative studies, are said to cover measures aimed at (1) securing the enforcement of an expected decision on the merits of the case; (2) maintaining or regulating temporarily a certain state of affairs; (3) preserving or obtaining evidence or other information as well as (4) anticipatory measures equivalent to those available in proceedings on the merits.^[16] EU private international law employs a similar notion (‘provisional, including protective, measures’)^[17], which encompasses measures that are ‘intended to preserve a factual or legal situation so as to safeguard rights the recognition of which is otherwise sought from the court having jurisdiction as to the substance of the case’.^[18] It covers ‘protective orders aimed at obtaining information or preserving evidence’, however, ‘measures which are not of a protective nature, such as measures ordering the hearing of a witness’ do not fall within the scope of that notion.^[19] 
10. Employed in the cross-border context, the notion of ‘provisional measure’ serves specific purposes. If a court not having jurisdiction over the substance of the matter nonetheless has jurisdiction to grant provisional measures, the accepted understanding of the concept of ‘provisional measure’ delineates the range of powers enjoyed by that court. The notion of ‘provisional measures’ can also be relied upon to shape the concept of foreign judgment susceptible of enforcement under the relevant legal framework, either by narrowing its scope or by defining it contours.^[20] 
11. Whatever the precise understanding of the notion of ‘provisional measures’ in various contexts might be, the ambition of the present subchapter is not to examine the entire array of such measures through a comparative lens.^[21] Instead, its aim is to focus on the cross-border operation of these measures and to provide a comparative analysis of their capability to act as instruments furthering international coordination and cooperation.^[22] Nonetheless, the present subchapter is not intended to provide a detailed account of all the issues that arise in international litigation in connection with various provisional measures.^[23] Given that coordination and cooperation in the globalized world are central to this study, it first examines the paradigms that govern the jurisdictional framework authorizing courts in different jurisdictions to grant provisional measures (1.3). Following this, it addresses the tools employed to manage parallel proceedings and concurrent provisional measures (1.4).
12. In light of this objective, since the English courts’ case law on the so-called ‘freezing orders’ can be considered a main driver of the intensified debate on provisional measures in cross-border cases, the present subchapter builds its comparative narrative around the measures aimed at preventing the disposal of assets. In the common law world, the freezing injunction, previously known as ‘Mareva injunction’, achieved its modern form in the decision of 1975 in Nippon Yusen Kaisha v. Karageorgis.^[24] It received its name after Mareva Compania Naviera S.A., the company that sought an injunction restraining disposition of defendant’s assets within the jurisdiction of the court in a subsequent case dealt with shortly after the decision of 1975.^[25] The freezing injunction does not operate as in rem injunction. It does not target the assets themselves but rather the conduct of the person against whom the injunction is issued. By contrast, a number of asset freezing measures available in common law (pre-judgment attachment) and civil law world (saisie conservatoire known under French law^[26] or sequestri conservati under Italian law^[27]) can be likened to an in rem injunction – they do not merely compel the debtor to refrain from removing or dissipating assets; instead, they constitute an attachment or arrest of the said assets. Nonetheless, from the functional viewpoint, all these measures share a similar objective of enhancing the likelihood of future successful enforcement against assets and, as such, constitute interesting comparative material.

1.3        Jurisdiction to Grant Provisional Measures in Cross-Border Context

13. Due to the limited limited significance of the imperatives of public international law with regard to the issue of granting provisional measures, the question as to whether a court has jurisdiction to issue such a measure is in principle answered according to the provisions of relevant uniform legal framework (eg, international agreement or EU secondary law) or according to a unilateral choice made by a country of the court from which the provisional measure is sought. To paint a full picture of the jurisdictional matrix under which the courts of different jurisdictions can grant such measures, it is necessary to distinguish two axes along which these courts operate. The first axis pertains to the requisite jurisdiction to grant a provisional measure and its underlying rationale. The second axis concerns the permissible extent of the exercise of that jurisdiction.

1.3.1        Inherent and Stand-Alone Jurisdiction to Grant Provisional Measures

14. There are two main concepts that underpin the jurisdiction to grant provisional measures.
15. Pursuant to the concept of ‘ancillary jurisdiction’,^[28] also referred to as ‘accessory’^[29] or ‘inherent’^[30] jurisdiction, a court with jurisdiction over the substance of the matter has jurisdiction to adopt measures necessary to safeguard the effective exercise of its jurisdiction on the merits. The ordinarily competent court should be viewed as the natural forum for granting measures that seek to protect the outcome of the case that can be or already has been brought before that court.
16. Pursuant to the concept that can be referred to as ‘stand-alone’ or ‘provisional-measures-specific’ jurisdiction, under certain conditions, a court that has no jurisdiction over the substance of the matter can grant provisional measures. Under this concept, a court has the authority to issue a provisional measure even if there is no sufficient basis for establishing jurisdiction on the merits, provided there is a sufficient link between the requested measure and the state where provisional protection is sought. By definition, such a court is acting in support of foreign proceedings (ie, future foreign proceedings, proceedings already pending abroad, or potentially even the proceedings that have resulted in a decision). Art 24 of the 1968 Brussels Convention, Art 31 of the Brussels I Regulation and now Art 35 of the Brussels Ibis Regulation are often considered to be the illustrations of the second concept. Art 35 of the Brussels Ibis Regulation reads:

Application may be made to the courts of a Member State for such provisional, including protective, measures as may be available under the law of that Member State, even if the courts of another Member State have jurisdiction as to the substance of the matter.

17. While in some contexts only the concept of ‘inherent jurisdiction’ is accepted,^[31] the stand-alone jurisdiction for granting provisional measures is strongly endorsed by various sources of soft law^[32] and reflected with increasing frequency in regional instruments,^[33] as well as in domestic legislation and judicial practice.^[34] That trend can be also observed in the evolution of the common law approach to jurisdiction for granting freezing injunctions.
18. Under traditional authorities of English common law,^[35] a court would only grant a freezing injunction if it was auxiliary to a claim on the substance over which the English courts had jurisdiction. The traditional approach has changed only in recent years.
19. In 2015, the High Court of Australia clarified that the power to issue a freezing order in relation to an anticipated judgment of a foreign court, which would then be registrable by order of the Supreme Court of Western Australia, is within the inherent power of that Supreme Court since the freezing order seeks to protect the future local registration and enforcement of the foreign judgment.^[36] 
20. In 2019, more in line with traditional authorities of English common law mentioned above, the Singapore Court of Appeal held that a Mareva injunction in aid of foreign proceedings can be granted if (1) the court in Singapore has personal jurisdiction over the defendant and (2) the plaintiff has a ‘reasonable accrued cause of action’ against the defendant in Singapore.^[37]
21. In the UK, the first significant deviation from the strict approach to the auxiliary nature of provisional measures resulted from the application of the abovementioned articles of 1968 Brussels Convention and of the Brussels I/Ibis Regulations. These instruments provide for a stand-alone jurisdiction for granting provisional measures. It is true that the relevance of the solutions emanating from EU law has been called into question in the UK legal order in the post-Brexit reality. Nonetheless, in 2021,^[38] the Privy Council overruled the traditional authorities of English common law and liberated the freezing order from being merely an auxiliary to a claim pending in the forum state. It clarified that a freezing order can be granted in order to secure the enforcement of (future) foreign judgments, as long as the domestic court has personal jurisdiction over the defendant.
22. For the sake of completeness, it is worth mentioning that freezing orders have had less success in the United States. In 1999, in Grupo Mexicano,^[39] the US Supreme Court departed from the approach taken by the English common law courts and refused to render the Mareva injunction available in the US. Echoing the dissenting opinion drafted by Justice Ginsburg, the decision has been lamented for insufficient consideration of the development of Mareva-jurisdiction in the common law world.^[40] 

1.3.2        Jurisdiction to Grant Extraterritorial Provisional Measures

23. The question of whether a court has jurisdiction to grant provisional measures in aid of foreign proceedings is one issue, but the question of the scope of the measures that can be granted within the limits of that jurisdiction is a separate matter. Regardless of the basis underpinning in concreto the jurisdiction of the court before which the provisional protection is sought, concerns related to sovereignty, national policies, oppressiveness to the defendant and enforcement difficulties were commonly seen as obstacles to issuing provisional measures intended to have effects in other jurisdictions.^[41]
24. Against this background, although civil law courts are still reluctant to issue provisional measures that affect assets situated in foreign jurisdictions, there exist legal precedents that contradict this tendency.^[42] Already in 1985, the Italian Court of Cassation considered lawful an order of sequestration (sequestro giudizario)^[43] affecting property located in other countries.^[44] Commentators point out that ‘it was irrelevant that it might [have been] difficult to enforce the measures abroad’.^[45]
25. Around the same time, similar trends emerged in the common law world and marked in particular the case law records of England^[46]. In personam nature of the freezing order enabled its transformation into a provisional measure impacting the defendant's actions abroad, potentially resulting in a worldwide freezing effect (worldwide freezing injunction).^[47] Although the proportionality of such a measure and its conformity with international comity still raised concerns, a court could compel the defendant not to dispose assets situated abroad. The approach spread in the common law world. In 2007, the Supreme Court of Cyprus confirmed that a Cypriot court can issue a worldwide freezing order with no explicit reference to the relevance of perspectives for its enforcement.^[48] In 2021, the High Court of Australia further clarified that the Federal Court’s power to grant a freezing order over assets outside of Australia is not conditioned by a realistic possibility of enforcement of a judgment on the substance in each jurisdiction to which the requested order relates.^[49] 
26. Thus, there is no impassable barrier derived from considerations of sovereignty or comity that prevents the issuance of provisional measures intended to produce effects in other states. Ultimately, if direct enforcement abroad is necessary, it is for the states where enforcement is sought to decide whether they will render the foreign provisional measure effective. However, it does not mean that the risk of excessive international jurisdiction can be neglected. A worldwide freezing order can potentially affect non-parties, ie, a person not being directly concerned by the main proceedings. The issue was addressed in early decisions that restrained defendants from disposing of assets held anywhere in the world. Specific wording of the injunction (‘Babanaft proviso’) was supposed to mitigate the effects of freezing order on third parties.^[50]
27. Lastly, from the standpoint of potential extraterritorial effects, it is important to distinguish between courts having jurisdiction over the substance and the courts enjoying the stand-alone jurisdiction to grant provisional measures. Measures issued by the latter courts tend to be strictly local and are typically not intended to have effects abroad.^[51] Taking EU private international law as an example, there are reasons to believe that a measure can be granted by a court without jurisdiction over the substance only if the effects of that measure are limited to the territory of the Member State of the forum. It can be argued that this interpretation results from the dictum of the CJEU in Van Uden,^[52] reiterated in Mietz^[53] and TOTO^[54] (‘the granting of provisional or protective measures on the basis of [Art 35 of the Brussels Ibis Regulation] is conditional on, inter alia, the existence of a real connecting link between the subject-matter of the measures sought and the territorial jurisdiction of the Contracting State of the court before which those measures are sought’). There are also some other findings presented in the case law suggesting that a measure qualifies as a ‘provisional measure’ only if it is territorially limited. In fact, such a territorial limitation of provisional measures is echoed in Van Uden^[55] and Mietz,^[56] where the CJEU explained that a provisional measure issued by a court with no jurisdiction over the substance of the matter has to relate ‘only to specific assets of the defendant located or to be located within the confines of the territorial jurisdiction of the court to which application is made’. It is not clear, however, whether this dictum applies to all provisional measures in general or only to highly specific measures in question in the cases that led to the requests for a preliminary ruling.

1.4        Managing Parallel Interim Proceedings and Concurrent Provisional Measures

28. In the absence of relevant international or supranational instruments, a court requested to grant a provisional measure determines whether is has jurisdiction in the light of relevant domestic legal framework. The court does not need to have jurisdiction over the substance of the matter and the main proceedings may be already pending elsewhere. Nor does this court have to be the only authority to which a request for a provisional measure can be made. Such a court can also be requested to issue a provisional measure although a court in another jurisdiction has already pronounced on that matter. Even when an international or supranational uniform framework addressing the issue of provisional measures has been put in place, as in the EU Member States, the simultaneous reliance on the two approaches to jurisdiction for granting provisional measures (ie, concept of ‘inherent jurisdiction’ and the concept of provisional-measures-specific jurisdiction) raises questions about the ramifications of concurrent jurisdiction.
29. By its very nature, a provisional measure is not final as it seeks only to temporarily safeguard the effective judicial protection of certain rights. Two important consequences follow from this: first, the interim measure does not possess the character of a final judgment and, therefore, second, it may be possible to revoke or modify it where necessary or appropriate.
30. The enforcement of foreign decisions has been traditionally limited to the decisions that are final and as such definitely settle the matters between the parties. Provisional measures lack those attributes. Accordingly, a number of states refuse to recognize and enforce foreign provisional measures due to their non-definitive nature.^[57] Other states consider that the effects of provisional measures are confined within the territory of the issuing state and resort to the technique of parallel provisional measures in order to give practical effect to those measures.^[58] In a similar vein, multilateral international agreements that provide for an obligation to enforce foreign judgments often exclude provisional measures from the scope of that obligation.^[59]
31. The trend is changing. Some jurisdictions declare increasing readiness to enforce foreign provisional measures at least in the context of specific areas of law and under some circumstances either on the basis of international or supranational legal frameworks (eg, EU secondary law) or on the basis of domestic rules on enforcement.^[60] Nonetheless, despite the growing openness toward foreign provisional measures, the approach favourable to their enforcement still cannot be regarded as the widespread standard of international civil procedure.
32. Furthermore, even under the frameworks that are providing some forms of enforcement of foreign provision measures, there is a general tendency to refuse enforcement of the measures that are granted by the courts not having jurisdiction over the substance. Taking EU law as an example, the measures granted in civil and commercial matters by an EU Member State court having provisional-measures-specific jurisdiction are not only local but also do not benefit from the uniform EU rules on the recognition and enforcement of judgments.^[61] 
33. In light of these observations, a question may arise as to whether there is indeed a need to address the issue of concurrent jurisdiction for issuing provisional measures.
34. It is true that since provisional measures do not definitively determine the merits they are typically refused res judicata effect, in spite of the prospects of their enforcement in other jurisdictions.^[62] However, a provisional measure cannot be denied some specific authority with regard to the protection it seeks to ensure.^[63] Unless the circumstances change, the court and the parties remain bound by the measure. In fact, the finding that a provisional measures does not have res judicata effect implies solely that a measure does not enjoy such an effect with regard to the underlying substance of the matter.^[64] In order to grant a provisional measure the court is not required to adjudicate the substance but confines itself to a preliminary assessment of the case, to the extent necessary to grant or refuse such a measure. Such a summary assessment is nonetheless conducted with regard to specific circumstances underlying the substance of the matter. It is widely accepted that the applicant seeking provisional protection has to show that they have a prima facie case on the merits.^[65] Hence, there is an element of pre-assessment of the substance involved in granting of provisional measures and therefore a risk that one court will not recognize a claim that other courts will protect by provisional measures. The outcome can be particularly paradoxical if a court having jurisdiction over the substance refuses to grant interim protection since it finds that the applicant does not have a prima facie case on the merits but another court issues a provisional measure.
35. Second, if one accepts that provisional measures have some specific authority with regard to the protection they seek to ensure and multiple courts might have concurrent jurisdiction to issue measures susceptible of enforcement, there is a non-negligible risk of existence of conflicting measures also with regard to the other conditions for granting provisional measures, eg, the urgency and proportionality of the measures.  
36. Lastly, third, even if provisional measures emanating from courts having concurrent jurisdiction cannot collide since they are territorially limited and refused enforcement, the coexistence of contradictory measures might be viewed as undesirable because it weakens the credibility of provisional relief.^[66] 
37. In order to reduce the likelihood of contradictory decisions and to discourage the pursuit of repetitive proceedings concerning provisional measures it is crucial to properly manage the concurrent jurisdiction of the courts involved in providing provisional relief. Several answers for reaching that ambitious goal have been given in the legal literature and practice. Among the most heavily discussed are, first, the hierarchy between the grounds of jurisdiction, second, the operation of classic private international law mechanisms dealing with parallel proceedings and res judicata, third, the exclusive choice of court agreements and, fourth, coordination and cooperation achieved through communication between the courts. It must be stressed that these tools for managing parallel interim proceedings and concurrent provisional measures are not mutually exclusive and may complement each other.

1.4.1        Hierarchy of the Grounds of Jurisdiction to Grant Provisional Measures

38. The necessity of addressing the power dynamics between the courts potentially involved is granting provisional relief is apparent in situations where multiple fora have jurisdiction to issue provisional measures. Although the specific solutions tend to vary across the jurisdictions surveyed for the purpose of the present subchapter, there are two main paradigms that those answers tend to reflect.
39. In the first paradigm, greater authority is given to the court potentially or effectively exercising the jurisdiction over the substance of the matter since it is the natural forum for granting provisional measures relating to the merits of the case that it will or already is adjudicating. The provisional measures issued by a court not having such a jurisdiction are aimed exclusively at supporting the main proceedings pending or anticipated elsewhere. Accordingly, the jurisdiction of that court is subsidiary to the jurisdiction of the ordinarily competent court and it can be extinguished once the main proceedings are initiated,^[67] the provisional measures adopted by that court can cease to apply once the court having jurisdiction over the substance awards provisional protection^[68] and the latter court can be empowered to modify or revoke provisional measures granted by other courts.^[69] 
40. In the second paradigm, equal authority is given to the courts having – or already exercising – jurisdiction over the substance of an action, on the one hand, and to the courts enjoying stand-alone jurisdiction to grant provisional measures, on the other hand.^[70] This paradigm seems to be founded on the view that the urgent nature of interim protection and the practical need of immediate judicial intervention – albeit often territorially limited – justifies no preference in favour of the courts with jurisdiction over the substance of the matter. The second paradigm does not resolve the issue of concurrent jurisdiction for granting provisional measures; it merely defers the question of whether and how to address it to a later stage.

1.4.2        Provisional Measures as a Subject of Lis Pendens and Res Judicata

41. The classic response of international civil procedural law to the problem of concurrent jurisdiction is lis pendens and res judicata. The concept of lis pendens will be discussed in more detail the context of proceedings on the merits in the second subchapter. The concept of res judicata is elaborated upon in the chapter on recognition and enforcement. At this point, the focus should be on whether provisional measures are at all subject to these concepts.
42. As already discussed, provisional measures do not to produce res judicata effect with regard to the substance of the matter but do enjoy some authority with regard to the protection they ensure. Nonetheless, there is little comparative evidence showing that a foreign decision on provisional measure is generally capable of preventing the local forum from hearing another application for provisional relief. However, EU private international law provides one of the rare examples of contemplation of such an effect of provisional measures, although it is questionable whether they are based on the doctrine of res judicata. The CJEU confirmed that in the presence of multiple irreconcilable decisions on provisional measures, the recognition of a decision on provisional measure adopted in another Member State contradicting the decision handed down in the forum state has to be refused.^[71] It has to be underscored that under EU private international law the irreconcilability of decisions constitutes a specific ground for refusal of recognition that cannot be automatically approximated to the res judicata situation.^[72] There is little guidance in the CJEU case law supporting the view that a provisional measure could generally have res judicata effects and prevent the local forum from hearing an application for provisional measures. However, some EU Member States drew inspiration from the case law of the CJEU and felt compelled to recognize the res judicata effect of foreign provisional measures.^[73] 
43. Generally speaking, pendency of foreign proceedings for provisional measures does not seem to trigger the application of the rules on lis pendens before the local forum and prevent it from issuing a provisional measure corresponding to the measure sought abroad. According to CJEU case law, the existence of proceedings for a provisional measure cannot activate the lis pendens rule unless the claim for the provisional measure and the subsequent claim regarding substantive matters form a procedural unit.^[74]

1.4.3        Exclusive Choice of Court Agreement and Jurisdiction to Grant Provisional Measures

44. The multiplication of fora capable of granting provisional protecting raises the question of whether the parties can prevent the courts of a particular state from issuing such measures through an exclusive choice of court agreement.^[75] 
45. Overall, there seems to be sufficient support in national case law for the view that exclusive choice of court agreements do not necessarily prevent actions for provisional measures in jurisdictions that are not covered by the parties’ agreement and should not have jurisdiction to adjudicate their dispute.^[76] Even the jurisdictions that appear to be reluctant to allow bypassing of exclusive choice of court agreements for the purpose of granting provisional protection, do recognise that the considerations of urgency or efficiency can, in some situations, justify exceptions to the general principle of strict observance of such agreements.^[77] Therefore, it follows from all these findings that an exclusive choice of court agreement is not entirely effective in dealing with concurrent jurisdiction for granting provisional measures.

1.4.4        Coordination and Cooperation through Communication

46. If the classic mechanisms of private international law fail or are not applicable with regard to provisional measures, the question whether a court should grant such a measure is left, as a matter of self-restraint and of proportionality, to the assessment carried out by the judge in complete isolation. Under such circumstances, one the one hand, provisional measures issued abroad can be fully ignored, leading to excessive securitization at the defendant's expense. There is also a non-negligible risk of issuing provisional measures that are contradictory. On the other hand, it can also happen that the measure provided by a specific forum will turn out to be insufficient to provide adequate and continued protection of the rights of the applicant. From the perspective of the rights of individuals and in the interest of global harmony of decisions, there is a persisting need to ensure that the unilateral monologue of judges providing interim protection is transformed into a true dialogue. This can be achieved with the support of international judicial communication. As the third subchapter discusses the communication seeking to ensure coordination and cooperation in cross-border litigation in general, the present subchapter outlines the mechanics of the communication concerning specifically the provisional measures.
47. In some jurisdictions there is no general framework allowing for formal direct or indirect judicial communication. Increasing awareness of the importance of communication among courts, coupled with the experience gained over the past few decades through the application of certain international instruments (eg, 1980 HCCH Child Abduction Convention), has led to a shift in approach. Nonetheless, if any form of institutionalised communication related to provisional measures is provided for in the relevant legal framework, it still tends to occur most frequently in the context of family and insolvency matters. Some illustrations of the varying trends are provided below.
48. A number of the HCCH Conventions in the field of international family law – and, consistent with these frameworks, several pieces of EU legislation – establish communication mechanisms. Under the HCCH instruments there are two main methods of ensuring coordination and cooperation through the dialogue between the courts involved in granting provisional measures: direct judicial communication^[78] and indirect communication with the assistance of the so-called Central Authorities.^[79] Those approaches are not mutually exclusive and some instruments endorse both of them.^[80]
49. In the field of civil and commercial matters, the plea for a cooperative approach to provisional protection receives much support in soft law sources.^[81] In a similar vein, in the EU, the initial Commission Proposal on the Brussels Ibis Regulation contained a provision to that effect. Art 31 of the Proposal read:

If proceedings as to the substance are pending before a court of a Member State and the courts of another Member State are seised with an application for provisional, including protective measures, the courts concerned shall cooperate in order to ensure proper coordination between the proceedings as to the substance and the provisional relief. In particular, the court seised with an application for provisional, including protective measures shall seek information from the other court on all relevant circumstances of the case, such as the urgency of the measure sought or any refusal of a similar measure by the court seised as to the substance.

50. However, the EU lawmaker did not implement that solution in the Brussels Ibis Regulation. In the EU, in line with general trends, institutionalised cooperation is far more prominent in matters of family^[82] and – in general, with no specific emphasis on provisional measures – in matters of insolvency.^[83]
51. As an alternative solution to the problem of deficient or inadequate communication between courts, the applicant requesting provisional measures may be required to provide information allowing the national courts to grant proportionate and harmonious provisional protection.^[84] Of course, it is also possible to combine the obligations incumbent on the individuals with the mechanisms allowing for direct or indirect communication between the courts.^[85]

2        Parallel Proceedings

2.1        Introductory Remarks and Scope of Inquiry

52. Due to its transnational nature and attachment to more than one jurisdiction, a subject matter of a cross-border litigation is prone to multiple interventions before different judicial actors. The more globalised and therefore interconnected the world becomes, the more vast is the reach of human activity, potentially leading – in the absence of a common framework for the allocation of jurisdiction (or even where it does exist but tolerates the multiplication of actions or is not able to thwart them) – to the proliferation of proceedings concerning identical or related claims.
53. The notion of ‘international parallel proceedings’ encompasses this phenomenon and refers to the concurrence of lawsuits over the same or closely related matter in courts belonging to different legal systems.^[86] Within the present subchapter, the term ‘international’ implies that those proceedings are pending before courts of different states. Domestic and – in federal states – interstate parallel proceedings are addressed only to the extent necessary to elaborate on the multiplication of proceedings that is ‘international’ in the sense defined above.
54. The legal panorama becomes even more perplexing if one factors in the ‘concurrence’ between proceedings before national courts, on the one hand, and arbitral tribunals or international courts, on the other hand. The multiplication of proceedings resulting from the operation of such bodies of adjudication does not constitute the focal point of the chapter, which concentrates on the national courts’ perspective on the challenges brought by the globalisation. As a consequence, arbitration-related dimension of the phenomenon of international parallel proceedings is addressed in the present subchapter only to a limited extent.
55. Regardless of the context, a whole range of reasons may prompt parties to pursue parallel proceedings. Proceedings for a negative declaration, known as 'reactive actions,' may be brought as a means of defence against litigation pending elsewhere. A party may initiate concurrent proceedings, referred to as 'repetitive' or 'duplicative' actions, to explore the prospects of outcome more favourable to its interest in various jurisdictions. The multiplication of proceedings may result simply from the desire to harass the defendant. Additionally, the increasing importance of class actions adds complexity to these procedural configurations.
56. Apart from that, the interest in obtaining satisfaction of the claim through enforcement of a judgment is among the main reasons compelling the parties to engage in multiple proceedings. On the one hand, the inability to enforce a foreign judgment in a specific jurisdiction encourages parallel proceedings. On the other hand, the easier it is to recognize or enforce foreign judgments, the more desirable it becomes to comprehensively acknowledge and address the problem of international parallel litigation.^[87] Hence, a connection between the issue of international parallel proceedings and the recognition and enforcement of foreign judgments certainly exists.^[88] 
57. Similar to domestic parallel proceedings, international parallel proceedings between the same parties concerning the same or related issues can lead to injustice, delays, increased expenses and inconsistent decisions. Therefore, generally, both domestic and international parallel proceedings are considered undesirable.
58. Most countries have developed a proper framework for dealing with domestic parallel litigation. Similar developments do occur with regard to the international sphere, although the process is accompanied by additional hardships that render it more burdensome for at least two reasons. First, while domestic parallel litigation does not necessarily raise questions of comity and sovereignty (though the latter might be of some relevance in federal states), its international counterpart clearly does. International parallel proceedings can also provoke tensions between the countries involved, as a matter of their diplomatic and political relations.^[89] Second, domestic parallel litigation is handled by a framework operating within the confines of a single legal order. In contrast, tools used to manage international parallel proceedings must address the same phenomenon from the perspective of different jurisdictions and the solutions adopted around the globe tend to vary to a greater or lesser extent.
59. In a simplified overview, in the common law world, the doctrine of forum non conveniens allows the courts to decide whether to exercise their jurisdiction based on an assessment of which court is the most convenient or adequate to resolve the dispute. In the civil law world, the doctrine of lis alibi pendens dictates that it is the court seized first that shall decide the dispute and the court seized second shall refrain from exercising its jurisdiction. The difference between forum non conveniens and lis alibi pendens is that the former prompts the court to decline jurisdiction because another forum is more appropriate, while the latter implies that a court should not hear the case because an action is already pending before foreign court. Accordingly, one the one hand, while the doctrine of forum non conveniens may be favoured for avoiding a race to a court, it lacks predictability. On the other hand, the doctrine of lis pendens is more predictable but encourages a race to file an action.^[90] However, this simplified overview offers only a snapshot of the varying approaches to dealing with the phenomenon of international parallel litigation. Not only are forum non conveniens and lis pendens understood and applied differently in various jurisdictions, but there are also numerous other doctrines and tools that do not fit within this dichotomous worldview.
60. In an ideal world, these approaches would be replaced by a uniform framework with global reach. A slightly less ambitious goal is to focus on creating international or at least regional frameworks that address selected aspects of the phenomenon of international parallel proceedings.^[91] Although such solutions are already emerging,^[92] they are still relatively rare. Therefore, the domestic legal frameworks should demonstrate awareness of the differing approaches and aspire to operate in a manner that promotes coordination between legal systems. This increased awareness could pave the way to some form of convergence at global or at least regional level. This ambition underpins the present subchapter, which – through a comparative lens – attempts to identify points of differentiation and unexplored prospects for convergence among the doctrines and tools used to address international parallel proceedings. To achieve this, the subchapter surveys regulatory approaches to designing a framework for handling international parallel proceedings (see below pt 2.2) and the main doctrines and tools available to national courts (pt 2.3). It then elaborates on specific points of differentiation and convergence identified in the process (pt 2.4). Finally, based on these considerations, it offers concluding remarks and systematizes the doctrines and tools discussed in this subchapter (pt 2.5).

2.2        Regulatory Approaches to the Framework for Dealing with International Parallel Proceedings

61. International agreements and supranational sources of international civil procedural law (eg, EU secondary law) tend to contain rules dealing specifically with the phenomenon of international parallel proceedings. Such rules are given priority over the solutions set forth in domestic laws of the jurisdictions concerned. However, international and supranational frameworks tend to be limited in their scope of application and typically concern only selected subject matters. Hence, the domestic legal frameworks are still often relied upon in scenarios of international parallel proceedings. On the domestic level, there seem to be three main model approaches to the design of a legal framework for dealing with international parallel proceedings, resulting from legislative action or judicial activity or a combination of both.^[93]

2.2.1        Absence of Framework

62. In some jurisdictions, there is no proper framework for dealing with international parallel litigation. As a consequence, parallel proceedings are tolerated and allowed to continue. This often prompts national courts to mitigate the adverse effects of multiple proceedings on a case-by-case basis. Such ad hoc responses are often inconsistent and cannot be considered a systemic solution to the phenomenon of international parallel proceedings (eg, doctrine of abuse of process and similar concepts – see below pt 2.3.6).
63. However, while some countries intentionally refrain from establishing a specialised framework for dealing with parallel litigation and ignore the proceedings pending abroad, their legislation might explicitly clarify that exceptions can result from international treaties and bilateral agreements.^[94] Such a regulatory choice may reflect the readiness and willingness of those jurisdictions to conclude international agreements. It can be also argued that such a choice seeks to prevent the application of the solutions developed for domestic parallel litigation in the international sphere.

2.2.2        Mutatis Mutandis Application of the Framework for Dealing with Domestic Parallel Proceedings

64. In a number of countries, there is no statutory or judge-made general legal framework designed specifically for dealing with international parallel proceedings. Instead, solutions used for domestic cases are 'lifted' to the international sphere and adapted to its particularities (eg, Germany,^[95] Austria,^[96] the United States^[97]). A priori, due to the nature of international parallel proceedings, this adaptation process might seem less problematic in federal states. However, there appears to be no correlation between the federal or unitary organization of a state and its adherence to the adaptation (‘mutatis mutandis’) approach. In fact, numerous unitary states also follow this approach (eg, France^[98]).

2.2.3        Dedicated Framework for Dealing with International Parallel Proceedings

65. Some countries establish a dedicated framework addressing the phenomenon of international parallel proceedings (eg, Poland^[99]). Such a framework may result from authoritative case law, which can eventually be transformed into a statutory solution (eg, Japan, although there is some debate as to whether the current legislative solution is a mere codification of jurisprudence – see below pt 2.3.4).

2.3        General Overview of the Main Doctrines and Tools

2.3.1        Doctrine of Forum Non Conveniens

2.3.1.1        Definition of the Notion of Forum Non Conveniens

66. Although already the Romans devised the concept that not every forum is appropriate for suit,^[100] the Scottish courts are credited with developing the doctrine of forum non conveniens in the early 17th century.^[101] The notion of forum non conveniens has not been employed until 19th century and the doctrine itself has not been offered its elaborated definition until the early 20th century.^[102] Contrary to what the Latin tag forum non conveniens might suggest, the doctrine is not based on a ‘mere practical convenience’ but on ‘suitability or appropriateness of the relevant jurisdiction’.^[103] Forum non conveniens gives the courts a discretionary power to refuse to exercise jurisdiction in certain circumstances. The doctrine has not been designed as a tool for specifically addressing a scenario where the proceedings are pending in multiple jurisdictions. However, in most jurisdictions adhering to that doctrine, it has found applications also in this context.

2.3.1.2        Forum Non Conveniens as a Multi-Faced Doctrine

67. There is no single version of the doctrine of forum non conveniens. Its various applications across the world tend to vary, in particular with regard to the test for forum non conveniens and the factors taken into account in the process.^[104] 
68. In England, the current statement of the doctrine has been set out by the House of Lords in the seminal decision Spiliada Maritime Corp v Cansulex Ltd,^[105] which has been widely accepted across common law jurisdictions. The Spiliada formula translates into a two-fold test:

1. in the first stage, defendant who seeks a stay has to show that there is another available forum which is clearly or distinctly more appropriate than the English forum;
2. in the second stage, the plaintiff, to whom the burden of proof shifts, has to show that there are special circumstances by reason of which justice requires that the trial should nevertheless take place before local forum.

Under the Spiliada formula, parallel proceedings are relevant due to concerns regarding resource duplication and the potential for conflicting judgments.^[106] Both identical and related foreign proceedings might be taken into consideration for the purposes of the doctrine of forum non conveniens.^[107] There is no strict requirement for these proceedings to be initiated before the local proceedings. Nonetheless, the amount of discretion enjoyed by the courts in their assessment is limited in presence of choice of court agreements (for general discussion see below pt 2.4.3).

69. In Canada, the Spiliada formula has not been followed rigorously and has been re-constructed as a single-stage test asking whether ‘the alternative forum is clearly more appropriate’. In other words, the Canadian approach differs from the two-fold test by considering factors relevant to its second stage within the overall assessment of forum non conveniens exception. Regarding parallel proceedings, the Supreme Court of Canada has held that although the presence of parallel proceedings abroad is a factor in assessing forum non conveniens, it is not a determinative one.^[108]
70. Due to the specific nature of its legal system, which does not easily fit within civil or common law category, the Canadian province of Quebec is noteworthy in the context of discussion on various representations of the doctrine of forum non conveniens. It provides both a statutory rule for lis alibi pendens (Art 3137 QCC), and also a statutory basis for forum non conveniens, in Art 3135 QCC:

Even though a Quebec authority has jurisdiction to hear a dispute, it may exceptionally and on application by a party, decline jurisdiction if it considers that the authorities of another country are in a better position to decide.

71. In Australia, the High Court of Australia declined to follow the Spiliada formula in Oceanic Sun Line Special Shipping Co v Fay^[109] and subsequently in Voth,^[110] where it replaced the ‘clearly more appropriate forum’ test with the requirement of proof that the local forum is a ‘clearly inappropriate forum’. That being said, the survey of case law leads some authors to contend that, ‘[at least] in certain cases, the courts in Australia were willing to betray the language of the clearly inappropriate forum test and ultimately adopted the more appropriate forum analysis’.^[111]
72. In the US, the modern model of forum non conveniens doctrine has been established in two decisions of the US Supreme Court of 1947,^[112] refined in the decision of 1981 in Piper Aircraft Co. v. Reyno.^[113] Under this model, a court is required to: (1) examine whether an adequate alternative forum exists and, if so, (2) balance public and private interests factors. That being said, a recent study has shown that there is no single doctrine of forum non conveniens in the US at the state courts. While most states are said to have converged around the federal forum non conveniens doctrine, a substantial number of states reject selected aspects of the federal model.^[114]
73. Although typically associated with the common law world, the doctrine of forum non conveniens finds some representations in the countries of civil law tradition and in those that do not easily fit in the common law category.
74. In China, the SPC 2015 Note on Interpretation, manifested an indifferent approach to foreign parallel proceedings.^[115] Under that Note, the doctrine of forum non conveniens seemed to be the only tool for dealing with international parallel litigation. The doctrine could have been relied upon to dismiss proceedings on the request of the defendant in favour of a foreign court, which has jurisdiction over the matter and is more convenient forum provided that (1) there was no agreement on jurisdiction of a Chinese court; (2) the case did not fall under the exclusive jurisdiction of Chinese courts; (3) main facts of the dispute did not occur within the territory of the People’s Republic of China and its law was not applicable to the case; (4) the case did not involve the interests of the nation, citizens, legal persons or other organisations of the People’s Republic of China.^[116] The SPC 2022 Note on Interpretation reiterated that solution.^[117] Since 1 January 2024, a formal rule for the doctrine of forum non conveniens exists in Chinese law.^[118] It has some substantial changes compared to the pre-existing solution resulting from the Notes on Interpretation. In particular, it replaced the factor of involvement of the interests of the nation, citizens, legal persons and other organizations of China by the factor relating to involvement of the sovereignty, safety, or public interests of China.^[119] More importantly, the newly adopted rules contain also some solutions concerning specifically foreign parallel proceeding that seem to echo the doctrine of lis pendens and these solutions seem to be a more suitable candidate for dealing with international parallel litigation.^[120]
75. In South Africa, the status of the doctrine of forum non conveniens is debatable. Although there are some provisions that to a larger or lesser extent seem to rely on the doctrine of forum non conveniens with regard to specific and narrowly designed subject matters^[121] (pursuant to the Spiliada formula),^[122] the doctrine does not seem to be accepted as a generally applicable mechanism for dealing with international parallel proceedings.^[123] That being said, much attention seems to be brought to the decision of the Supreme Court of Appeal of South Africa,^[124] which struck down as unconstitutional doctrine of arrest of peregrini ad fundandam jurisdictionem (ie, an arrest of the person in order to establish jurisdiction of the domestic courts). To compensate, the same decision accepts the jurisdiction of the local forum based on the mere presence of the party. It states that the South African High Court will have jurisdiction ‘if the summons is served on the defendant while in South Africa and there is a sufficient connection between the suit and the area of jurisdiction of the court concerned so that disposal of the case by that court is appropriate and convenient’.^[125] Some scholars view that decision as a seed of the doctrine of forum non conveniens,^[126] while others seem more skeptical and see it rather as an illustration of forum conveniens considerations.^[127] That being said, it has to be underscored that the doctrine of lis pendens is relied upon in South Africa to deal with foreign parallel proceedings.^[128]

2.3.2        Doctrine of Lis Pendens

2.3.2.1        Definition of the Notion of Lis Pendens

76. Lis alibi pendens, conventionally shortened to lis pendens, describes a situation where proceedings that, according to certain criteria, are considered to be the same or related to the proceedings brought before a local court are already pending in another forum: the suit (lis) is pending elsewhere (alibi). In such a situation, the court may be authorised or obliged to refuse to exercise jurisdiction. The normative concept under which such a court operates is described as the doctrine of lis pendens.^[129] The doctrine functions as a pre-emptive corollary to the res judicata effect of foreign judgments^[130]. In anticipation of the outcome of parallel proceedings already pending in another jurisdiction, the court is authorized to stay and eventually dismiss local proceedings.
77. The doctrine of lis pendens is typically associated with the countries of the civil law tradition. The legal system of those countries tends to rely on statutory rules of direct jurisdiction, or at least on the rules of direct jurisdiction more or less clearly defined by the jurisprudence. The availability of a forum for the plaintiff under those rules implies that the court should exercise the jurisdiction granted to it. Thus, generally speaking, there is no place for discretionary refusal to exercise jurisdiction in a manner similar to the logic of the doctrine of forum non conveniens.^[131] The rigidness of the solution is tempered by the ‘jurisdiction-defeating’ rule of lis pendens.^[132] There are, however, also some jurisdictions that do not easily fit within the civil law category, which follow the doctrine (eg, Quebec^[133]) or declare adherence to it (eg, South Africa^[134]).

2.3.2.2        Pendency of Eadem Res and of Connected/Related Actions

78. Most commonly, the doctrine of lis pendens is associated with the multiplication of cases of eadem res. The ‘identity’ of proceedings is established with a test seeking to determine whether the ‘parties’ and the ‘case’ (typically understood as identity of ‘object’ and of ‘basis’ of the action) are the ‘same’. In some jurisdictions, there is a tendency to favour a lax understanding of those criteria. Eg, in South Africa, the doctrine relies on a three-fold identity test (same parties or their successors in title, cause of action and relief sought),^[135] although ‘there is room for [adaptation of the relevant criteria and for their] extension based on the underlying requirement that the same thing is in issue as well as the reason for the existence of the plea’.^[136] 
79. Some legal systems take this concept further and attribute some significance also to foreign proceedings that are connected to the proceedings pending before the domestic court (the so-called ‘related’ or ‘connected’ actions, eg, the Brussels I bis Regulation within the EU). The notion of ‘lis pendens’ is often used to describe solely the situation of cases that are considered to be the ‘same’. Nonetheless, it seems that at least on the terminological level, lis pendens (suit that is ‘pending’ and not necessarily the suit that is the ‘same’) can also encompass related or connected cases.^[137] In comparison to eadem res situations, courts are generally given more discretion to stay or dismiss a related action. More importantly, it can be argued that the recognition of the relevance of related (as opposed to ‘same’) actions diminishes the differences between the doctrine of lis pendens and the doctrine of forum non conveniens. In principle, the latter doctrine takes into account both ‘same’ and ‘connected’ actions pending abroad.

2.3.2.3        Lis Pendens as a Rule of Priority and its Erosion

80. The doctrine of lis pendens is sometimes perceived as a rigid rule of priority (ie, stay or dismissal due to the proceedings pending before a foreign court seized first, regardless of the circumstances related to the proceedings), clearly distinguishable from the doctrine of forum non conveniens.^[138] However, with some rare exceptions (eg, situation of intra-EU pendency)^[139], stay and dismissal of proceedings under the doctrine of lis pendens are subject to additional requirements: (1) the prospects of recognition and enforcement of a future foreign decision (eg, Poland^[140] or Argentina^[141]); the capability of the foreign forum to deliver its decision within a reasonable time (eg, Poland^[142]); (3) proper administration of justice requires the stay (extra EU-pendency^[143]; Belgium^[144]).
81. In some jurisdictions relying on the doctrine of lis pendens, even where these requirements are met, the courts enjoy discretionary power to stay and dismiss local proceedings. Eg, in South Korea,^[145] a court seized with the same case pending in a foreign court between the same parties is authorised (and not obliged) to suspend domestic proceedings, provided that the judgment rendered in the foreign proceedings is expected to be approved in Korea.
82. Furthermore, in some legal systems, the doctrine of lis pendens relies on the criteria that are commonly associated with the doctrine of forum non conveniens, such as convenience or appropriateness of both local and foreign fora.
83. Eg, in South Africa, ‘in deciding the issue of lis pendens, a court exercises a discretion – considerations of equity and convenience would be the deciding factors’.^[146] Furthermore, it is reported that two conditions must be satisfied for a stay of proceeding to be possible: first, the defendant must satisfy the court that there is another forum to whose jurisdiction they are amenable and in which justice can be done at substantially less convenience or lower expense (a stay should not be granted though, if a substantiated claim is made that the local forum is more convenient, in particular due to access to evidence)^[147], second, the stay must not deprive the applicant of legitimate personal or juridical advantage resulting from the jurisdiction of the South African court.^[148] Even if parallel proceedings are pending in foreign court the stay is not mandatory,^[149] although the commencement of proceedings abroad may afford a prima facie case for a stay in the absence of proof that injustice would be done if a stay was granted.^[150]
84. In a similar vein, following some discussions,^[151] a rule echoing the doctrine of lis pendens has been recently introduced in China. Under that rule, the domestic proceedings may be stayed at the request of a party on the ground that foreign court has accepted the parallel case prior to the local forum unless the parties have concluded a choice of court agreement in favour of Chinese courts or the local forum is evidently more convenient.^[152]
85. The rigidness of the rules based on the doctrine of lis pendens is further eroded through legislative change and case law. Echoing those tendencies, EU private international law serves as a perfect illustration of the erosion of a rigid rule of pendency. In EU Member States the practical relevance of national solutions for dealing with the international parallel proceedings has been largely limited by EU law, at least with regard to the matters falling within the scope of application of the EU Regulations. The EU itself took a bifurcated approach to the issue of parallel proceedings depending on whether they occur intra-EU (ie, parallel proceedings pending before the courts of EU Member) or involve a non-EU State. On the one hand, both the 1968 Brussels Convention and its successor, the Brussels I Regulation, contained provisions for intra-EU parallel proceedings. Under the interpretation provided by the CJEU in Gasser,^[153] a rigid priority rule in favour of the court first seized has been installed within the EU: the proceedings before the court first seized enjoyed priority even if the parties had concluded an exclusive choice of court agreement in favour of the court seized in the second place. On the other hand, the Convention and the Regulation did not explicitly deal with parallel proceedings in a non-EU State. The EU lawmaker addressed both facets of the matter in the Brussels Ibis Regulation and in the process the rigidness of the rule of priority has been put into question.
86. In a nutshell, first, under the Brussels Ibis Regulation, in the presence of an exclusive choice of court agreement, a court of another Member State of the EU now has to stay the proceedings until such time as the court seized on the basis of the agreement declares that it has no jurisdiction under that agreement.^[154]
87. Furthermore, the doctrine of abuse of rights has a firm place in the EU legal order. The prohibition of abuse of law (ie, EU law cannot be relied on for abusive or fraudulent ends) is a general principle of EU law and seems to have already inspired some interpretations of the rules on conflict-of-laws.^[155] Hence, although the hypothesis has not been yet tested before the CJEU, in the light of the process of erosion of the rigid rule of priority in various jurisdictions and the evolution of the EU law itself, it cannot be entirely excluded that abusive or fraudulent reliance on the rigid rule based on the doctrine of lis pendens could be defeated by the said general principle of EU law.
88. Second, the EU lawmaker decided to make a ‘commendable gesture of good will towards third countries’^[156] and enacted rules on parallel proceedings (eadem res and connected actions) before the courts of non-EU States^[157]. However, there seems to be some controversy as to whether those provisions are based on the doctrine of lis pendens or rather on the doctrine of forum non conveniens. In particular, it is unclear whether those provisions are confined to the case where the proceedings in the non-EU State were commenced prior to those in the Member State^[158] or – in a manner more in line with the doctrine of forum non conveniens – it can also be applied also where the third State court has been seized in the second place.^[159] Either way, this controversy shows that a strict demarcation line between the doctrines of lis pendens and forum non conveniens might indeed be overstated and as such should be put under scrutiny.^[160]

2.3.3        Doctrine of International Abstention

89. It should be noted that forum non conveniens is not the only doctrine applied by the US courts in order to address international parallel proceedings. Over the years, US Federal Courts have developed a doctrine of deference to foreign courts previously seized of similar proceedings, referred to as the doctrine of international abstention. The doctrine has its origins in the federal abstention doctrine involving federal and state proceedings but it has been uprooted from its habitat and transformed into a doctrine applicable in international contexts.
90. Under the doctrine of federal abstention, the federal courts stay proceedings where parallel proceedings have been initiated in state courts. In Colorado River Water Conservation District v. United States,^[161] the US Supreme Court outlined the rationale of the doctrine in the domestic context: although federal courts are obliged to exercise jurisdiction even in the event of concurrent proceedings, in the interest of wise judicial administration and in certain particular circumstances, these courts should abstain from exercising jurisdiction over a case pending in a state court. The US Supreme Court also detailed some of the factors that have to be taken into consideration by federal courts: (1) object of the dispute and whether it concerns a property, (2) the inconvenience of the federal forum, (3) the desirability of avoiding piecemeal litigation and (4) the order in which jurisdiction was obtained by the concurrent forums.^[162]
91. In 1980s, US Federal Courts began to rely on abstention doctrines in deference of foreign courts although their case law was marked by inconsistencies and diverging approaches: while some circuits used some variation of Colorado River, others were outright rejecting its applicability in international setting.^[163] Over a decade later, the Court of Appeals for the Eleventh Circuit developed a doctrine fashionably labelled as the doctrine of international abstention.^[164] It has also identified three factors that a court examining whether to abstain from exercise of jurisdiction should take into consideration: (1) international comity, (2) fairness to litigants and (3) efficient use of scarce judicial resources.^[165] It has to be underscored that while the doctrine of international abstention spread to some other circuits, it does not form a single and universally accepted concept in the US.^[166]
92. In its most widely accepted form, the doctrine of international abstention shares some of the characteristics of the doctrine of lis pendens: foreign proceedings must be pending prior to the initiation of parallel proceedings in the US and the parties and the issues must be similar. Nonetheless, it is applied in a manner more flexible than the rigid variation of the doctrine of lis pendens: it covers also the proceedings that are similar and it does not require the identity of the parties. It also leaves space for taking into consideration some other factors that are typically irrelevant for the doctrine of lis pendens.^[167] 

2.3.4        Doctrine of Exceptional/Special Circumstances

93. Japan is a civil law country and its procedural law is still said to be an ‘adaption’ of the German legal tradition.^[168] As most civil law countries, Japan has not developed a proper doctrine of forum non conveniens. Its legal order does not provide for a mechanism addressing specifically the issue of international parallel litigation. However, Japanese courts have developed the so-called doctrine (theory) of ‘exceptional circumstances’ [tokudan no jijô] in order to achieve results somewhat similar to those of forum non conveniens.
94. The doctrine finds its roots in a decision of the Supreme Court in Goto v. Malaysian Airline System Berhaa^[169], which addressed the question whether the Japanese courts have jurisdiction over a cross-border dispute. The Supreme Court considered that this question should be decided in accordance with the principles of ‘fairness and reasonableness’ (‘jori’), in order to promote the impartiality of the parties and the fair and speedy administration of justice. This Court found that as long as one of the grounds of jurisdiction provided for under Japanese law exists, the exercise of jurisdiction over a defendant is in accordance with these principles. Subsequently, the lower instance courts brought that concept further and found the reverse of the principle laid down by the Supreme Court.^[170] These courts held that the jurisdiction established on such grounds should be exercised unless, due to ‘exceptional circumstances’, it would offend notions of fairness and due process. This is the element of the case law from which the doctrine of ‘exceptional circumstances’ received its name.
95. Originally, the doctrine of ‘exceptional circumstances’ has not been designed as a tool for dealing with international parallel proceeding but case law shows that it has been employed to address that phenomenon.^[171]
96. In 2011, the judge-made solution was replaced by a statutory provision (using the notion of ‘special circumstances’ instead of ‘exceptional circumstances’),^[172] although there seems to be some doubts as to whether the Japanese legislator merely codified pre-existing case law or attempted to fine-tune it in the process. Art 3-9 JCCP reads:

Even where the Japanese courts have jurisdiction over an action (except where the action has been brought on the basis of an exclusive jurisdiction agreement in favour of the Japanese courts), the court may dismiss the whole or part of the proceedings if, taking into account the nature of the case, the burden on the defendant to answer the claim, the location of evidence and any other factors, the court finds that there are special circumstances [tokubetsu no jijô] by reason of which hearing and determining the case in Japan would impair fairness between the parties or hinder the proper and efficient conduct of hearings.^[173]

97. If concurrent local proceedings impair fairness between the parties or hinder the proper and efficient conduct of hearings, the local forum can refuse to exercise its jurisdiction on the basis of Art 3-9 JCCP.^[174] In some instances, the courts indicate that the expression ‘special circumstances’ cannot be interpreted as restricted to extremely limited cases.^[175] The identity of the proceedings is not required and the doctrine can be relied also in the context of related actions. However, the local forum should consider, in particular, the stage of the foreign proceedings, the connecting between the subject-matter of the claim and the forum, the location of the evidence and the prospects of recognition of a subsequent foreign judgment in Japan.^[176] 

2.3.5        Doctrine of Forum Election

98. In Singapore, the doctrine of forum election (ie, plaintiff is put to forum election and has to choose whether to proceed in Singapore or abroad) is employed alongside the doctrine of forum non conveniens in order to address the phenomenon of international parallel proceedings.
99. The scope of application of the forum election doctrine is narrow. It can be relied on exclusively in ‘common plaintiff’ situations, ie, the same plaintiff sues the same defendant in Singapore and abroad. Once the defendant has shown that parallel proceedings are pending in another jurisdiction, the doctrine of forum election requires the plaintiff to make a choice as to where they wish to pursue the action (in Singapore or abroad). However, the plaintiff can also attempt to demonstrate ‘very unusual circumstances’ under which the parties should tolerate duplicated suits.^[177]
100. In Singapore, the defendant may choose to rely on the doctrine of forum non conveniens or on the doctrine of forum election.^[178] They can also invoke both of them, but the court should address them in a specific order. Recently, ‘as a matter of general practice’, the Singapore Court of Appeal pronounced itself in favour of relying on forum non conveniens first: ‘it is only if [under the doctrine of forum non conveniens] the court finds that the alternative forum is not clearly or distinctly more appropriate than Singapore for the determination of the dispute that it would then have to put the plaintiff to an election between forums’.^[179]

2.3.6        Doctrine of Abuse of Process and Similar Concepts

101. There seems to be a common theme among most of the doctrines and tools surveyed so far: at least to a certain extent they take into consideration the ends of justice and/or oppressive and vexatious nature of the domestic or foreign proceedings. Hence, it can be argued that those doctrine and tools share a common objective – they seek to prevent the abuse of process. Unsurprisingly, in the jurisdictions that do not accept the main doctrines for dealing with the phenomenon of international parallel proceedings, the courts tend have recourse to the doctrine of abuse of process and other similar concepts in order to address that phenomenon.
102. Eg, Brazil is a civil law country of federal nature that, one the one hand, does not adhere to the doctrine of lis pendens.^[180] On the other hand, it discarded the doctrine of forum non conveniens in the presence of a choice of forum agreement in favour of the Brazilian courts^[181] and confirmed its rejection, albeit in a less categorical manner, in other contexts.^[182] There are some reports of decisions attempting to mitigate the rejection of those doctrines through the recourse to the general duty of good faith, which is said to be violated by initiating proceedings in Brazil while parallel proceedings are pending in another jurisdiction.^[183] However, while it is true that at least in one of its decisions the Superior Court of Justice established a link between the general duty of good faith and the initiation of multiple proceedings, it did so to refuse the issuance of an anti-enforcement injunction.^[184] 
103. Mexican legal system also follows the civil law tradition. On the one hand, unsurprisingly, the doctrine of forum non conveniens is not accepted in Mexico.^[185] On the other hand, the Supreme Court of Justice of the Nation considers that the framework for dealing with domestic parallel proceedings is inapplicable in the international sphere.^[186] The Court does, however, see the need to address the phenomenon of international parallel litigation in order to respect the procedural rights of individuals.^[187] For that reason, at least at one specific instance, it requested the lower instance courts to address the issue of parallel proceedings in accordance with general principles of its private international law.^[188] This could pave the way to the reliance on the doctrine of abuse of process.
104. Overall, the doctrine of abuse of process seems to be less relevant in jurisdictions where other doctrines and tools can be employed to address the issue of international parallel litigation. Eg, in English common law, the doctrine of abuse of process has limited applications and has to be reserved for extreme scenarios: ‘[t]here may also be cases […] where forum non conveniens factors may provide some evidential support for an argument that the proceedings have been brought for the improper collateral purpose of unfair harassment. However, save to that extent, the risk of inconsistent judgments and the other difficulties identified are matters to be confined to jurisdictional challenges, either under [Art 33-34 of the Brussels Ibis Regulation] or forum non conveniens principles’.^[189] In a similar manner, in civil law countries that adhere to the doctrine of lis pendens, abuse of process and related concepts can be relied upon to mitigate the rigidness of that doctrine. Eg, in Argentina, a rigid rule based on the doctrine of lis pendens is used to deal with parallel proceedings.^[190] This rule obliges the court to stay the local proceedings if it identifies positive prospects of recognition of a foreign judgment. Some scholars suggest that abusive reliance on the doctrine of lis pendens rule can be dealt with ‘sophisticated arguments’ about abuse or violation of fundamental rights in the procedure.^[191] Lastly, in EU Member States, there might still be some space for reliance on the concept of abuse of rights under the Brussels Ibis Regulation in order to defeat the strict operation of the rules on lis pendens.^[192]
105. In conclusion, (1) while the doctrine of abuse of process and similar concepts may be relied on in order to address the phenomenon of international parallel proceedings, they cannot be considered as a systemic and coherent response to this phenomenon; (2) the doctrine of abuse of process and similar concepts seem to be more relevant in jurisdictions that do not accept other doctrines and tools discussed in this subchapter.

2.3.7        Anti-Suit Injunction

106. An anti-suit injunction is a tool designed to prevent a party from commencing or continuing legal proceedings in another forum. As such, it has the potential of being employed to prevent or discontinue foreign parallel proceedings. It can be also viewed as a relief necessarily possessing extraterritorial effects. Hence, an anti-suit injunction can be perceived as ‘aggressive’ and ‘unilateral’ tool for management of international parallel proceedings.^[193] Unsurprisingly, it is also one of the most controversial tools in the arsenal of the courts dealing with the phenomenon of international parallel proceedings. Those controversies are reflected by the differing approaches to the availability of the anti-suit injunction (see below pt 2.3.7.1) and to the grounds on which it can be granted (pt 2.3.7.2).

2.3.7.1        Availability of Anti-Suit Injunctions

107. In principle, an anti-suit injunction is not directed against a foreign court but against a party involved in foreign proceedings pending or contemplating to initiate them. Thus, the notion of ‘anti-suit injunction’ is seen as ‘misleading since it fosters the impression that the order is addressed to and intended to bind another court’.^[194] That being said, the view that an anti-suit injunction interferes with the exercise of jurisdiction of a foreign forum and, as such, raises questions of sovereignty and international comity still seems to structure the discussion on the availability of anti-suit injunctions.
108. In the civil law world, anti-suit injunctions are said to affect the adjudicative jurisdiction of foreign States.^[195] This is also the stance taken within the EU. In Turner,^[196] the CJEU ruled that an anti-suit injunction cannot be granted to restrain proceedings in another Member State, inter alia, because it constitutes an ‘interference with the jurisdiction of the foreign court’.^[197] This view is shared by the common law world. Most US courts recognize that anti-suit injunctions ‘effectively restrict the foreign court’s ability to exercise its jurisdiction’.^[198] A similar view is shared in the UK,^[199] although much emphasis is placed on the ‘indirect’ nature of the interference.
109. However, as the understanding of sovereignty and international comity changes over time, so does the availability and conditions for granting anti-suit injunctions. The classic criticism against anti-suit injunctions based on the argument that a state should not attempt to control proceedings pending in another sovereign state has been described as outdated.^[200] Furthermore, the finding that an anti-suit injunction is (albeit indirectly) affecting the exercise of jurisdiction is not necessarily seen as a sufficient reason to entirely outlaw such a measure. It rather calls for a cautious approach to the granting of anti-suit injunctions. The EU case law is also illustrative in this context: in order to justify the rejection of intra-EU anti-suit injunctions, the CJEU does not rely solely on the argument of ‘interference’ with the jurisdiction of foreign courts. It invokes also mutual trust and effectiveness of EU law.^[201] There has been some debate as to whether the Brussels Ibis Regulation reversed the stance of the EU law towards anti-suit injunction in civil and commercial matters,^[202] but it seems that an EU Member State court still cannot issue an injunction preventing a party from commencing or continuing proceedings in another Member State.^[203]
110. By the same token, comity-oriented considerations never seemed to stop the courts of EU Member States from preventing a party from commencing or continuing proceedings in non-EU States. In a similar vein, prior to Brexit, the availability of anti-suit injunctions in the UK has been restricted accordingly to the intra-EU standard resulting from the case law of the CJEU. Post-Brexit case law confirms that this is no longer the case and a court in the UK can issue an anti-suit injunction preventing a party from commencing on continuing proceedings before the courts of an EU Member State.^[204]
111. In general, the courts of continental Europe are more reluctant to grant an anti-suit injunction than their common law counterparts. Eg, French and German courts are generally sceptical of anti-suit injunctions. Recently, the courts of those states have even granted their first anti-anti suit injunctions prohibiting a party from pursuing anti-suit injunction.^[205] Furthermore, even the readiness to enforce foreign anti-suit injunctions by a specific jurisdiction does not necessarily run in parallel with the widespread availability of such injunctions in that jurisdiction. In France, the Cour of Cassation has initially, albeit obiter dictum, ruled that anti-suit injunctions should not be granted by French courts as they interfere with foreign adjudicative jurisdiction^[206] (although it has held before that French courts would have the power to grant in personam injunctions with extra territorial reach with regard to a specific subject matter of insolvability)^[207]. Few years later, the Court ‘qualified’ this decision^[208] and confirmed that an anti-suit injunction sanctioning a choice of court agreement in favour of a foreign forum can be enforced in France.^[209]
112. In the Canadian province of Quebec, Art 751 to 761 QCCP cover permanent and provisional or interlocutory injunctions. Until 2016, Art 758 QCCP provided that ‘an order of injunction can in no case be granted to restrain legal proceedings or the exercise of functions for a legal person established in the public interest or for a private interest, except in the case provided for in Art 329 of the [QCC]’. The currently applicable nQCCP contains an identically worded Art 513.^[210] While those provisions seem to outlaw anti-suit injunction, the courts of Quebec have developed an interpretation that these provisions do not apply in private international law matters.^[211] A legal basis for granting anti-suit injunction with extraterritorial effects has been derived from Art 46 QCCP,^[212] which is worded identically to Art 49 nQCCP.^[213]
113. The courts of Asian countries adhering to the civil law tradition seem to be quite reluctant to grant an anti-suit injunction. Some reports suggest that an anti-suit injunction can be issued in Japan and South Korea,^[214] although this view finds little support in case law.^[215] In China, although there is a statutory basis for the issuance of an anti-suit injunction in maritime disputes, some controversy exists regarding whether a universal legal basis for such injunctions can be identified in that legal system.^[216] Nonetheless, anti-suit injunctions are also issued in other areas (eg, patent litigation).^[217]

2.3.7.2        Conditions for Granting an Anti-Suit Injunction

114. Generally speaking, three conditions have to be met in order to grant an anti-suit injunction. The court in which the relief is sought has to (1) have jurisdiction to grant the anti-suit injunction; (2) find that the grounds for granting the injunction are met; (3) consider that the relief indeed should be granted.^[218]
115. The jurisdiction to grant an anti-suit injunction does not necessarily coincide with the jurisdiction to hear the action that the injunction seeks to halt. A basis for jurisdiction of the local forum is nevertheless required. Eg, in Australia, there are two jurisdictional bases for granting of an anti-suit injunction: (1) inherent jurisdiction to protect the court's process, where the question of jurisdiction has to be addressed according to Voth test (ie, whether local forum is ‘clearly inappropriate’) and (2) equitable jurisdiction allowing to avoid unconscionability.^[219] Similarly, in the province of Quebec, although Art 3138 and 3140 QCC authorize a court to issue a measure ‘in cases of emergency or serious inconvenience’ even if it has no jurisdiction over the merits of the dispute, these provisions are not sufficient to completely bypass the jurisdiction requirement for granting an anti-suit injunction.^[220] 
116. There are three widely accepted grounds for granting an anti-suit injunction: (1) breach of an exclusive choice of court agreement in favour of courts of the state where the injunction is sought or of arbitration agreement (2) oppressive or unreasonable conduct within foreign proceedings; (3) protection of the integrity of the forum state’s jurisdiction.^[221] This brief overview illustrates that both private and public interests might be considered by courts when granting anti-suit injunctions. However, jurisdictions that recognize the relevance of private interests do not approach them uniformly. In most common law countries, a breach of a choice of court or arbitration agreement constitutes a ground for granting an anti-suit injunction, whereas in some other countries the emphasis is placed on the rights enjoyed by the parties irrespective of such agreements (eg, China^[222]).
117. Turning now to the pendency of parallel proceedings as a potential ground for granting an anti-suit injunction: under English common law, an injunction may be issued to discontinue foreign parallel proceedings provided that the local court is the natural forum for the trial of action and the pursuit of action in a foreign court is vexatious or oppressive to the defendant.^[223] By contrast, in the last decade of the 20th century, some district courts in the US tended to adopt a lax standard for issuing anti-suit injunction upon the mere showing of duplication of parties and issues.^[224] Overall, although an anti-suit injunction can be also used to prevent foreign parallel proceedings, it is less likely that such an injunction will be granted if no proceedings are already pending in another jurisdiction.^[225] Nonetheless, Canadian courts seem grant anti-suit injunctions only if parallel proceedings are pending in a foreign court. Additionally, they will issue the injunction only if the foreign forum has not refrained from exercising its jurisdiction according to the doctrine of forum non conveniens, as it is applied in Canada.^[226] 
118. Lastly, a question arises whether a local forum can issue an anti-suit injunction to protect the integrity of jurisdiction of foreign courts. In the UK, the Court of Appeal answered in the affirmative,^[227] but the decision was overturned on a comity-related argument, stating that there had been no sufficient connection of the case with the forum state (‘comity requires that the English forum should have a sufficient interest in, or connection with, the matter in question […]).^[228] This overruling does not necessarily imply that an injunction in support of foreign courts is entirely excluded. One could argue that it simply reinforces the requirement of jurisdiction for granting an anti-suit injunction. Nonetheless, subsequent decisions mentioning ‘a clear need for protection of the English proceedings’ may imply that an anti-suit injunction cannot, in fact, be issued in support of jurisdiction of foreign courts.^[229]

2.3.8        Clawback Statues and Actions

119. A ‘clawback statute’ confers on selected entities (nationals of a state having adopted the statute, its residents or persons doing business within its territory) a right to initiate a local action to recover all damages incurred as a result of being required to satisfy a foreign judgment. In practical terms, those statutes seek to ‘reverse’ the effect of judgments handed in another jurisdiction.^[230] In a similar manner, in some countries (eg, UK), a party may request a declaration to be entitled to an indemnity against cost and liability incurred in connection to the foreign proceedings commenced in breach of an exclusive choice of court agreement.^[231] As such, these actions might be viewed as a tool related to the phenomenon of international parallel proceedings. Nonetheless, a common objection to these actions is that they undermine the exercise of jurisdiction by a sovereign state.^[232]

2.4        Specific Points of Differentiation and of Convergence

2.4.1        Responses to Parallel Proceedings Pending in a Foreign Court

120. If no efforts were employed to prevent the multiplication of proceedings or if those measures failed, a national court operating under the relevant legal framework may be authorized or required to address the phenomenon of parallel proceedings pending in a specific manner. In response, it may:

1. ignore parallel proceedings pending in a foreign court: this is the default reaction in legal systems that tolerate concurrent proceedings; such a reaction often simply postpones the need to address the issue to the phase of recognition/enforcement of a foreign judgment;
2. stay and/or dismissal of local proceedings (sometimes with additional conditions – see below pt 2.4.2):^[233] a preference for a stay might be explained by the reluctance to extinguish local proceedings, with no chance of their revival before the foreign forum;^[234]
3. transfer the local proceedings:^[235] transfer requires a legal framework accepted by all jurisdictions involved and typically operates domestically; there are some rare exceptions operating on international or supranational level (eg, between the EU Member States);^[236]
4. restrain a party from initiating or continuing parallel proceedings in a foreign court (eg, anti-suit injunctions);
5. encourage a party to opt for trial in one forum (eg, forum election)^[237].

121. Some of the responses to international parallel proceedings are not unique to a single doctrine or tool, illustrating that these mechanisms share common objectives. It can be argued that the choice of a specific response is guided by broader policy considerations regarding foreign jurisdiction and international comity, reflecting the level of coordination and cooperation a legal framework intends to ensure.

2.4.2        Conditionality of the Response to Parallel Proceedings

122. Transfer and consolidation of proceedings may be viewed as the optimal solution for managing international parallel proceedings. In this approach, the case is ‘transferred’ to a court in a different jurisdiction and there is no need to initiate them anew. There is no risk that the case will be initiated after the expiration of the statute of limitations. It may be also possible to retain the validity of previous procedural actions and admissibility of gathered evidence. Nonetheless, for transfer to be possible, a specific legal framework must be established in both jurisdictions involved. Such frameworks are rare. As a result, the more common responses to international parallel proceedings are stay or dismissal of local proceedings. If no proceedings are pending in a foreign court or are not identical, staying or dismissing the local proceedings can expose the party to the burden of filing the claim again and to the risk of debating the question of jurisdiction anew before a foreign forum. Therefore, to mitigate these risks, a conditional stay or dismissal, rather than a definitive one, may be a more appropriate reaction to parallel proceedings.
123. The discretionary nature of the doctrine of forum non conveniens allows for the possibility to stay local proceedings with specific conditions, sometimes referred to as ‘undertakings’. These conditions most commonly involve:^[238] (1) the acceptance of jurisdiction by the foreign court or the submission to its jurisdiction by the party,^[239] and (2) the waiver of statute of limitation defences.^[240]
124. The doctrine of lis pendens typically favours the stay of local proceedings (instead of their immediate dismissal) and is conditional by its very nature. In civil law countries, where judicial discretion is more limited, courts rarely supplement a stay with conditions beyond those provided by statutory law. Generally, the court will be required or authorized to lift a stay and continue the domestic proceedings under certain conditions set forth by the statutory framework: (1) the foreign court declines jurisdiction; (2) the foreign proceedings are discontinued or resulted in no decision on the merits; (3) it is unlikely that the decision will be delivered within a reasonable time; (4) the recognition/enforcement of foreign judgment is refused.

2.4.3        Consideration of Choice of Court Agreements

125. An exclusive choice of court agreement has both positive (grants jurisdiction to the chosen court) and negative (denies jurisdiction to other courts) effects. Non-exclusive jurisdiction agreements have only the positive effect and as such do not aim to disrupt the allocation of jurisdiction. Unsurprisingly, the doctrines and tools dealing with the phenomenon of parallel proceedings are not oblivious to such agreements Their approach to choice of court agreements varies with respect to two aspects: (1) whether the choice of court agreement is exclusive or not and (2) whether the choice is made in favour of foreign or local court.
126. In the intra-EU scenarios, where a court of a Member State on which an agreement confers exclusive jurisdiction is seized, a court in another Member State shall stay the proceedings until such time as the court seized on the basis of the agreement declares that it has no jurisdiction under the agreement.^[241] In a similar vein, the HCCH 2005 Convention on Choice of Court Agreements addresses only the exclusive choice of court agreements. As a matter of principle, a court of a Contracting State other than that of the chosen court shall suspend or dismiss proceedings to which an exclusive choice of court agreement applies, whether or not a parallel action has been started in the designated court.^[242]
127. In Japan and in South Korea, one the one hand, a choice of court agreement (both exclusive and non-exclusive) in favour of a foreign court is not automatically binding on the local courts and does not require the local courts to stay or dismiss the proceedings. One the other hand, if an exclusive agreement is made in favour of local forum, the Japanese courts will not rely on the doctrine of exceptional/special circumstances^[243] and the South Korean courts will not apply the rules based on the doctrine of lis pendens.^[244] 
128. If the proceedings are brought before the English court in breach of an exclusive jurisdiction clause, the court will ‘ordinarily exercise its discretion to secure compliance with the contractual bargain […] unless the party suing in the non-contractual forum (the burden being on him) can show strong reasons for suing in that forum’.^[245] By contrast, those principles generally do not apply to a non-exclusive choice of court agreement, where the common test for forum non conveniens can be applied.^[246]
129. In South Africa, the courts are not unconditionally bound by foreign jurisdiction clauses. However, in presence of an exclusive agreement in favour of foreign courts, the plaintiff has to demonstrate the reasons for not staying the local proceedings and not giving effect to the agreement between the parties.^[247] 
130. In Singapore, the Spiliada formula for forum non conveniens is generally followed also in presence of a non-exclusive agreement in favour of a foreign court. By contrast, when faced with an exclusive choice of court agreement in favour of a foreign forum, the Singaporean court is expected to respect the parties’ agreement unless a ‘strong cause’ for refusing the stay is demonstrated.^[248] A similar standard applies in cases involving a non-exclusive agreement in favour of domestic courts: the defendant must demonstrate ‘strong cause’ to avoid being bound by the agreement.^[249] 
131. In conclusion, (1) with some exceptions resulting from international or regional treaties, an exclusive choice of court agreement in favour of a foreign court is not automatically binding on the local forum; (2) theoretically, the plaintiff can demonstrate that there are particular reasons for allowing the local action brought in breach of such an agreement to continue; (3) under the doctrine of forum non conveniens, in some circumstances, the courts are authorized to stay or dismiss proceedings also where an exclusive choice of court agreement is made in their favour; by contrast, an exclusive choice of court agreement in favour of domestic courts is typically binding under the other doctrines (eg, lis pendens, exceptional/special circumstances).

2.4.4        Consideration of Private and/or Public Interests

132. The operation of the doctrines and tools surveyed in the present subchapter tends to vary with regard to the nature of factors taken into consideration in deciding whether to stay or dismiss local proceedings.
133. For the purposes of forum non conveniens analysis, under English common law, the ‘public interest considerations not related to the private interests of the parties and the ends of justice have no bearing on the decision which the court has to make’.^[250] By contrast, in US, the forum non conveniens analysis involves ‘considerations affecting the courts own administrative and legal problems’.^[251]
134. In the civil law world, public interest is nearly always taken into consideration when addressing the issue of international parallel proceedings through various doctrines and tools.
135. In Japan, where the doctrine of ‘special circumstances’ received a statutory status (Art 3-9 JCCP), only the ‘circumstances’ that are capable of impairing fairness between the parties or hinder the proper and efficient conduct of hearings can justify a dismissal of local proceedings. It can be argued that purely public interests, not related to private concerns, are of less relevance – or even of no relevance^[252] – for the operation of that provision.

2.4.5        Sua Sponte Stay/Dismissal Power

136. In common law countries adhering to the doctrine of forum non conveniens, a court typically cannot raise the exception based on this doctrine on its own motion. Thus, the wide margin of discretion that those courts typically enjoy in the process of deciding whether to stay or dismiss local proceedings does not necessarily grant them the power to act sua sponte.
137. However, US courts deem themselves empowered to raise the exception ex officio, although this practice may at first glance seem to be in contradiction with the importance that those courts attribute to the plaintiff's choice of forum and on the allocation of burden of proof under the doctrine of forum non conveniens. Such a practice, albeit rare, can be explained by the relevance of public interest in the US approach to the doctrine of forum non conveniens.^[253]
138. There is also no common solution in civil law countries, although under the rigid rules based on the doctrine of lis pendens, the courts are typically authorised to stay sua sponte the local proceedings. For instance, under lis pendens doctrine-based Art 7(1) of the Legge di riforma del sistema italiano di diritto internazionale privato (Law on the reform of the Italian system of private international law) n 218 of 31 May 1995 (Italy), the court must stay the proceedings if it finds that the decision of the foreign court may be recognized in Italy. Although there has been some interpretations according to which a request of the party is required,^[254] the Italian Court of Cassation relied on the ratio legis of that provision and confirmed that a court can indeed stay the proceedings on its own motion.^[255] 
139. In Japan, under the ‘special circumstances’ doctrine, that is now enshrined in a statutory provision, the courts may also act sua sponte.
140. In South Korea, a court may stay the proceedings under the statutory rules inspired both by the doctrine of forum non conveniens and the doctrine of lis pendens only at the request of the defendant.^[256] A similar solution seems to be adhered to also in Singapore in the context of the doctrines of forum non conveniens and forum election.^[257]
141. Overall, it can be argued that if a local court is required to take into account public interests when deciding on the stay/dismissal of proceedings (eg, the doctrine of lis pendens and the doctrine of forum non conveniens in the United States), that court is often obliged to take such a decision on its own motion and stay or dismiss the proceedings even in the absence of a request from the parties.
142. In conclusions: (1) co-existence of multiple doctrines employed alongside each other in order to deal with the phenomenon of parallel proceedings seems to disfavour the court’s power to stay or dismiss local proceedings sua sponte;^[258] (2) if a court is required to stay the local proceedings where specific conditions are met (eg, doctrine is lis pendens), it usually is allowed to do so ex officio; (3) relevance of public interest to the assessment conducted prior to stay or dismissal typically allows the local court to act sua sponte.

2.4.6        Judicial Discretion

143. Forum non conveniens is often described as a discretionary doctrine that authorizes a court to abstain from exercising its jurisdiction. To a lesser extent, the same can be said with regard to civil law surrogates of the doctrine of forum non conveniens (eg, doctrine of extraordinary circumstances).
144. It does not mean that the doctrine of lis pendens is situated at the polar opposite of the spectrum and is entirely non-discretionary. Under the doctrine of lis pendens, stay and dismissal of local proceedings are often subject to conditions, requiring the court to engage in a nuanced and discretionary assessment. In some legal systems, the doctrine of lis pendens relies on the criteria that are commonly associated with the doctrine of forum non conveniens, such as convenience or appropriateness of both local and foreign fora.^[259] Some countries adhering to the doctrine of lis pendens grant no discretion to their courts: once these specific conditions are met, the court is obliged to stay the proceedings (eg, Argentina,^[260] Italy,^[261] Poland^[262]). However, in some jurisdictions, even where such conditions are met, the decision to stay the local proceedings results from discretionary power of the local forum: a court ‘may’ stay or dismiss proceedings (eg, South Korea,^[263] Belgium^[264]).
145. Overall, the assertion that discretion is entirely alien to the doctrine of lis pendens seems to be misguided. While this statement might seem true where a rigid priority-based rule of lis pendens (as in the intra-EU context) is benchmarked against forum non conveniens in common law courts, its accuracy is questionable where more nuanced forms of lis pendens doctrine are taken into consideration. To conclude: (1) the fact that a court enjoys discretion is not sufficient to qualify the tools at its disposal as being based on the doctrine of forum non conveniens; (2) while the doctrine of forum non conveniens involves a fair amount of discretion, the doctrine of lis pendens tends to offer less room to manoeuvre; (3) although it might be compelling to argue that the discretion that the courts enjoy under lis pendens doctrine is not directed at allocating the case to the most appropriate forum, this is clearly not the case for some jurisdictions that do identify as those adhering to that doctrine but still taking into consideration the ‘convenience’ or ‘appropriateness’ of the fora seized.

2.5        Concluding Remarks

2.5.1        Fallacy of the Binary Systematization

146. The main doctrines referenced in discussions on international parallel proceedings, namely the doctrine of forum non conveniens and the doctrine of lis pendens, are typically associated with common law and civil law traditions, respectively. These two doctrines are often viewed as principal competitors or alternatives. However, such a simplified overview considers these two doctrines in isolation and in their most traditional forms. Consequently, it fails to present a complete picture and reinforces the binary worldview.
147. In fact, first, some countries that are associated with either common or civil law traditions do not adhere to their ‘default’ doctrine (eg, South Africa and its recognition of the doctrine of lis pendens). Some countries or their regions do not neatly fit within the binary distinction between the civil and common law worlds (eg, Quebec).
148. Second, in contrast to the doctrine of lis pendens, the doctrine of forum non conveniens is not specifically formulated to deal with the phenomenon of parallel proceedings. However, it can still serve this purpose. The contrast between the two doctrines exists only insofar as their more extreme and traditional forms are benchmarked against each other. Many rules based on the doctrine of lis pendens grant at least some discretion to the courts. Some incorporate elements that are typically associated with the doctrine of forum non conveniens (eg, ‘appropriateness’ of the local and/or foreign forum). Overall, it can be provocatively argued that the single characteristic that undeniably distinguishes the doctrine of lis pendens from the doctrine of forum non conveniens is the far more specialised character of the former. The rules based on the doctrine of lis pendens apply only where parallel proceedings are already pending in a foreign court.
149. Third, there are also other doctrines and tools relied upon to address the phenomenon of international parallel proceedings that do not perfectly align with the characteristics of the doctrines of forum non conveniens and lis pendens. Some of these developments appear to constitute a compromise between these two main doctrines and illustrate the potential for convergence. Such solutions have emerged in civil law countries, which do not fully adhere to the doctrine of lis pendens (eg, doctrine of exceptional/special circumstances in Japan). Similar developments have occurred in common law jurisdictions, which seem to view the doctrine of forum non conveniens as not entirely appropriate to deal with this phenomenon (eg, doctrine of international abstention in the United States).
150. Fourth, adherence to the doctrine of forum non conveniens or lis pendens does not imply that there are no other means of addressing the issue of international parallel litigation. Auxiliary doctrines and tools have been developed on the foundations of the main aforementioned doctrines and/or to complement them (eg, doctrine of forum election in Singapore and anti-suit injunctions). Other doctrines and tools are also relied upon as remedies for the insufficiencies of the doctrines of forum non conveniens and lis pendens (eg, doctrine of abuse of process and similar concepts).
151. Fifth, the doctrines discussed in this subchapter are not necessarily mutually exclusive. There are some frameworks that do recognize both forum non conveniens and lis pendens (eg, Quebec; arguably South Africa and South Korea). In some jurisdictions, less common doctrines operate alongside one of the two main doctrines (eg, in Singapore doctrine of forum election applies alongside the doctrine of forum non conveniens; under English common law the doctrine of abuse of process applies alongside the doctrine of forum non conveniens). The co-existence of multiple doctrines and tools within a single framework raises the question whether they can be applied alongside each other. In each and every jurisdiction such question calls for a meticulous analysis of the relevant legal framework on a case by case basis. Some detail about relations between selected doctrines is already provided above, in respective parts of this subchapter. It is also possible to formulate a general observation concerning the two main doctrines. In fact, the mere availability of rules based on the doctrines of lis pendens and forum non conveniens in a specific jurisdiction does not necessarily imply that they can be applied with regard to the same instance of parallel proceedings.^[265] Nonetheless, even if the doctrines are not applicable alongside each other, on the one hand, the doctrine of forum non conveniens may serve as pre-emptive measure to the situation that would call for a subsequent application of a rule based on the doctrine of lis pendens.^[266] On the other hand, if the strict requirements of lis pendens are not met, forum non conveniens may still allow to take into consideration the action pending in a foreign court. Eg, if foreign proceedings fail to pass the eadem res test and there is no rule concerning related actions, forum non conveniens may authorize the stay of local proceedings closely connected to the action pending in another jurisdiction.

2.5.2        Attempt of Systemization

152. In the light of the above, a meaningful comparative inquiry should look past the common tags of forum non conveniens and lis pendens and discuss the whole arsenal of doctrines and tools that are employed to deal with the phenomenon of international parallel proceedings. These doctrines and tools may be categorised according to various criteria. The contention here is that their nature and mode of operation varies across three axes, relating to their (1) specificity, (2) timing and (3) ‘intrusiveness’.

2.5.2.1        Specificity

153. Some of the aforementioned doctrines and tools employed to deal with international parallel proceedings are not designed specifically to address this phenomenon. This is in particular the case of the doctrine of forum non conveniens and its civil law surrogates (doctrine of special/extraordinary circumstances), which generally can be applied regardless of whether identical or related proceedings are pending elsewhere. By contrast, lis pendens and forum election represent the measures that operate solely as the tools for managing international parallel proceedings.

2.5.2.2        Timing

154. Selected doctrines and tools are available only if parallel proceedings are already pending in a foreign court (lis pendens and doctrine of international abstention), while others can be employed also ex ante, in order to pre-empt the emergence of parallel proceedings (forum non conveniens, anti-suit injunctions)^[267]. It does not mean, however, that the pendency of foreign proceedings is irrelevant for the operation of the latter tools: the fact there the proceedings are pending abroad is taken into account within the assessment that has to be carried out by the local forum. Some other tools are employed ex post, when both sets of proceedings were allowed to continue (eg, res judicata effect of foreign judgment; local pendency as a ground for non-recognition/non-enforcement of the foreign judgment; clawback statues/actions).

2.5.2.3        ‘Intrusiveness’

155. The ‘arsenal’ of tools for dealing with international parallel proceedings can be divided into two categories: the measures of self-restraint and the measures restraining others.^[268] However, a binary approach may be criticised for not painting the whole picture (eg, forum non conveniens, a measure of self-restraint, can be perceived by other jurisdictions as a tool exerting influence on them, their courts and citizens).^[269] It seems therefore more appropriate to categorise the doctrines and tools according to their ‘intrusiveness’: from those more respectful of foreign jurisdictions (forum non conveniens and lis pendens), through those of more invasive nature (anti-suit-injunctions) to those that are utterly confrontational (clawback statutes/actions).^[270]

3        Coordination and Cooperation by Communication between Judges

3.1        Introductory Remarks and Scope of Inquiry

156. In the absence of relevant international instruments, measures employed to address the particularities of cross-border disputes are designed unilaterally by the states, often resulting in their incompatibility. Even when an appropriate international instrument exists, there is no guarantee that the measures contained therein will allow for efficient coordination of identical or similar proceedings pending in different jurisdictions. The proper operation of such measures relies heavily on the amount of information available to the courts involved in proceedings of trans-border nature. The information required to ensure adequate coordination and cooperation can be provided through judicial communication.
157. In the cross-border context, there are two main types of communication that should be considered separately since they have different subjects and therefore pose different challenges: general and not case-specific communication, on the one hand, and communication concerning a specific case, on the other hand. The present subchapter focuses solely on the latter, with particular emphasis placed on the use of communication to manage pending legal proceedings and to strengthen the effective protection of rights in the cross-border context. Viewed from that perspective, case-specific judicial communication can relate to a number of issues: (i) pendency of the case in a foreign court; (ii) scheduling of such a case; (ii) availability of provisional measure and the possibility of entertaining a mirror measure in both jurisdictions; (iv) local circumstances that might be relevant for the settlement of the case and for the enforcement of a future decision or (v) prospects of enforcement.
158. Furthermore, two forms of judicial communication need to be distinguished: ‘formal’ and ‘informal’ judicial communication. The notion of ‘informal communication’ is referenced in various sources,^[271] but its contours are not well defined and it seems that there is no common understanding of that concept. While undeniably useful for obtaining general information on foreign law and court practice (ie, general and not case-specific communication), ‘informal’ communication can obviously raise concerns if it is used to achieve the objectives that are normally ensured through formal communication concerning a specific case.
159. Echoing those concerns, the present subchapter attempts to explore the overarching trends of transnational judicial communication. In this attempt, the present subchapter characterises the general tendency to institutionalise judicial communication (point 3.2) and elaborates on its legitimacy in international setting (point 3.3).

3.2        Institutionalisation of Judicial Communication

160. The importance of judicial communication has been most widely acknowledged with respect to family and insolvency matters. In these areas, the utility of judicial communication receives some consideration in particular with regard to provisional measures.^[272] Further illustrations of reliance on judicial communication in family and insolvency law will be presented in the present subchapter.
161. In addition to these sectoral developments, an increasing number of national legal frameworks explicitly provide for a general legal basis for judicial communication. Such legislative efforts either enable communication (eg, Spain)^[273] or render it mandatory (eg, Argentina).^[274] 
162. Furthermore, the groundwork is currently carried out under the auspices of the HCCH with the objective of creating a general international instrument on jurisdiction in civil or commercial matters (ie, the Jurisdiction Project).^[275] The Working Group responsible for this task is mandated to establish principles relating to international parallel proceedings. The Group recognised that it may be necessary to introduce a voluntary, non-binding cooperation and/or a communication mechanism. The details of such a solution and its mechanics are still open to discussion.^[276]
163. Overall, the survey of these legal frameworks demonstrate there are two main approaches to judicial communication: direct judicial communication and indirect judicial communication with the assistance of specialised authorities. Both methods are not mutually exclusive and can be relied upon within a single framework. In the cross-border context, direct judicial communication can be defined as the process whereby two or more courts located in different jurisdictions communicate directly with each other in relation to a matter pertaining to a case in progress. In indirect communication, the process is channelled through a designated body, furthering the institutionalised nature of judicial communication.
164. The tendency to institutionalize judicial communication can be explained by the hardships that the judges dealing with cross-border matters regularly encounter. The 1980 HCCH Child Abduction Convention has been cited in the literature as an example of an international agreement depending on the functioning of Central Authorities, which took for granted the effective operation of judicial authorities on the national level. However, the practical experience proved different. It has become apparent that the proper handling of cross-border cases requires the active involvement of judges having particular experience in the respective field. It has also shown that the proficiency of languages, the availability of operable and secure means of communication or even the ability to verify that the judged engaging and receiving the communications are authorised to do so, constitute necessary conditions – though not necessarily met in every jurisdiction – for effective judicial dialogue.^[277]
165. In order to overcome those challenges, a number of judicial networks have been organized on international [eg, International Hague Network of Judges (IHNJ)], regional [eg, European Judicial Network (EJN)^[278], Ibero-American Legal Assistance Network (Iber RED)^[279]] and national [e.g. Canadian Network of Contact Judges^[280] and Spanish Judicial Network for International Cooperation (REJUE)^[281]] levels. Taking the IHJN as an example, its primary role is to assist judges dealing with the cases falling within the ambit of the 1980 HCCH Child Abduction Convention. The network’s role is two-fold: general communication (eg, sharing information and fostering judicial education) and direct case-specific judicial communication, where the objective is to obtain information that will support the judge in their decision-making process.^[282]
166. From the perspective of the institutionalisation of judicial communication, it might be also interesting to distinguish between the networks established by the legislature (EJN, European Judicial Network in Civil and Commercial Matters^[283]) and those set up at the instigation of the judges.^[284] By the same token, the judiciaries of some countries concluded agreements laying down specific principles for more efficient handling of cross-border cases.^[285] However, such principles, born out of practical necessity, can be applied only insofar as they are not contradicted by the relevant legally binding framework. Hence, while grassroots initiatives of that kind have to be welcomed, their success depends on the support or, at the very least, on the non-obstructionist approach of the legislative and executive branches.
167. Furthermore, out of the necessity to ‘fill the gaps between the legal systems’,^[286] some frameworks endorse the concept of the so-called ‘liaison judges’ (‘liaison magistrates’). A ‘liaison judge’ is supposed to act as a channel of communication and liaison with the national Central Authority, with judges within their own jurisdiction and with judges in other States.^[287] The channelling of the communication through designated liaison judges facilitates the dialogue and diminishes the risks typically associated with judicial communication.^[288] 
168. Institutionalised state support is essential in particular in the context of information technology, which can immensely facilitate communication among judges. To illustrate this point with an example taken from EU legal order: launched in 2011, the Computerised system for communication in cross-border judicial proceedings (the e-CODEX system) is the technological backbone for the EU judicial cooperation in civil and commercial matters. It comprises a package of software products that allow for secure digital communication between courts.^[289]
169. As a closing remark, the trend to institutionalise judicial communication does not necessarily run in parallel with its far-reaching formalization. On the contrary, the formalities and procedures should not hinder the process and they should be endorsed only insofar as they serve legitimacy-strengthening purposes (see below pt 3.3), leaving space for judicial discretion and bottom-up initiatives of the judiciary.

3.3        Legitimacy of Judicial Communication

170. The communication taking place between sitting judges, be it of direct nature or facilitated by specialised authorities (ie, centralised authorities or liaison judges), can be an efficient and swift method of ensuring adequate handling of pending cases and proper management of proceedings. It allows a judge to take an informed decision and ensure that the protection granted to the rights of the parties is neither excessive nor incomplete. Sometimes characterised as a part of a wider phenomenon of judicial activism,^[290] judicial communication can be viewed as a pragmatic response to the challenges faced by the courts in the globalised world. The legitimacy of the process, however, cannot be sacrificed for the sake of practical benefits. There are two essential conditions discussed in the context of the legitimacy of judicial communication: the existence of safeguards throughout the process, on the one hand, and the existence of a legal basis that allows courts to engage into communication, on the other hand.

3.3.1        Safeguards for Judicial Communication

171. Judicial communication relating to transnational disputes can raise concerns about the independent exercise of the adjudicative function by the courts involved in the dialogue. In its attempt to ensure effective coordination between proceedings and/or an informed decision-making process, case-specific communication must not compromise the fairness of the trial and procedural rights of the parties. Hence, judicial communication must be conducted in a manner that respects the legal requirements of the respective jurisdictions. However, due to differing requirements around the globe, the practicalities of communication may lead to diverging assessments of the conformity of judicial dialogue with local standards.
172. In order to address those discrepancies, efforts are necessary to establish common rules guiding the judicial communication, either in a binding legal instrument or in soft law sources. Legally binding instruments in that area are lacking. By contrast, commonly accepted safeguards for Direct Judicial Communications in specific cases have been developed under the auspices of the IHNJ.^[291] In a similar vein, the Canadian Network of Contact Judges established ‘Recommended Practices for Court-to-Court Judicial Communications’ and a guide to judicial communication ‘How to Communicate with a Judge in Another Jurisdiction – Canadian Network of Contact Judges Recommendations’.^[292] 
173. In essence, most of the common rules guiding judicial cooperation indicate that the communications must not compromise the independence of the judge in reaching their decision on the matter at issue.^[293] Equally emphasised is the need to ensure the transparency of communications. The parties should be notified of the nature of the proposed communication and a record of the communication should be available to them.^[294]

3.3.2        Legal Basis for Judicial Communication

174. The mechanisms enabling or mandating judicial communication are explicitly provided for only in some international instruments and in some domestic laws. In the absence of such an explicit legal basis, the question arises: can the judges nevertheless engage in dialogue, provided that they are able to put in place adequate safeguards?
175. Generally speaking, there seems to be some consensus on the need to identify a legal basis for judicial communication.^[295] Such a legal basis should be viewed as an important component of safeguards for ensuring the legitimacy of judicial communication discussed above. However, in both common law and civil law jurisdictions, there appears to be a broad acceptance of judicial communications even without explicit legal basis, with diverging justifications as to its foundations (eg, judicial communication as an element of judicial discretion, constitutional order, general principles of law, consent of the parties, judicial communication perceived solely as a matter of logistics).^[296]
176. Judicial communication becomes more problematic from the viewpoint of international law. It has been argued in the literature that the courts involved in transnational communication conceive themselves as autonomous actors forging a relationship with foreign counterparts.^[297] Although the vision of judicial bodies acting as autonomous interlocutors seems intellectually compelling, it raises several questions: is a national court, exercising adjudicative jurisdiction on behalf of a state, indeed authorized to engage in communication with a foreign adjudicative body and treat it as its peer? Conversely, is a national court obliged to consider communication from the court of another state as coming from its foreign counterpart? The more unclear the answer to that questions is, the more obvious is the need for a proper legal basis for judicial communication.
177. Lastly, whatever the ultimate stance of concerned domestic legal orders might be, those questions call for a further inspection in the context of EU law. In fact, one the one hand, EU legal order provides an interesting illustration of the challenges resulting from the lack of explicit endorsement of judicial communication by the relevant legal framework. On the other hand, judicial cooperation in civil matters is based on the mutual trust among EU Member States, which theoretically could eliminate the obstacles to effective communication between courts.
178. In her Opinion in the case Purrucker,^[298] AG Sharpston distinguished the Brussels I Regulation and the Brussels IIbis Regulation and observed that only the latter ‘specifically contemplates communication between courts [in some contexts]’. She then argued that ‘it is conformity with the spirit of mutual cooperation which underpins the [Brussels IIbis Regulation] for such communication to extend to all matters which can facilitate or expedite proceedings’. This finding corresponds to the reasoning underpinning the judgment in A,^[299] where the CJEU inferred an obligation to inform the courts in another EU Member State about the provisional measures granted by the local forum from a general provision of the Brussles IIbis Regulation detailing the tasks of Central Authorities.^[300]
179. The question remains whether – in the absence of any explicit contemplation of communication in a relevant EU law instrument – it can still be expected or even required from the national courts of the EU Member States to engage in judicial dialogue. Lacking explicit legal basis for judicial communications under EU private international law (eg, Brussels Ibis Regulation), judicial communication can be perceived as a logical extension of the need to ensure the practical effectiveness (effet utile) of the instruments on judicial cooperation in civil matters having cross-border implications, on the one hand, and of the duty of sincere cooperation enshrined in Art 4(3) TUE, on the other hand. However, it is a question of debate whether those rather general concepts of EU law constitute a sufficient legal basis for voluntary or mandatory judicial communication. At present, no clear answer to that question transpires from case law.
180. Faced with a problem of a lack of legal basis in the Succession Regulation^[301] for communication of declarations in matter of succession between the courts in EU Member States, in T.N. and N.N.^[302] and M. Ya. M.^[303], the CJEU did not resort to the concepts of effet utile or sincere cooperation. On the contrary, it held that ‘in the absence of a uniform system in EU law providing for the communication of declarations relating to the succession […] it is for the person who has made a declaration concerning the waiver of succession to take the steps necessary to ensure that the court having jurisdiction to rule on the succession becomes aware of the existence of a valid declaration’. However, it is unclear whether any overarching principle of EU private international law can be inferred from that dictum. First, the transmission of information on a declaration made before a court of another Member State might have been viewed by the CJEU as a variation of the recognition of authentic documents, which is initiated at the request of the interested party^[304]. Second, Recital 32 of the Succession Regulation seems to express the EU legislator's intent to discharge the courts (only) from the specific duty of transmitting declarations related to succession.^[305] 
181. In light of the above, even if not out of necessity but at least to reinforce the legitimacy of the process and alleviate practical obstacles, international civil procedure instruments should provide rules for direct communication between courts in different jurisdictions involved in dealing with parallel proceedings.^[306]

Abbreviations and Acronyms

ALI	American Law Institute
Art	Article/Articles
cf	confer (compare)
ch	chapter
CJEU	Court of Justice of the European Union
ECLI	European Case Law Identifier
ECtHR	European Court of Human Rights
ed	editor/editors
edn	edition/editions
eg	exempli gratia (for example)
ELI	European Law Institute
etc	et cetera
EU	European Union
ff	following
fn	footnote (external, ie, in other chapters or in citations)
HCCH	Hague Conference of Private International Law
IDI	Institut de Droit International
ie	id est (that is)
ILA	International Law Association
JCCP	Minji soshō-hō (Code of Civil Procedure) (Japan), as modified by the Act for the Partial Amandment of the Code of Civil Procedure and the Civil Provisional Remedies Act
SKPIL	국제사법/國際私法 (Act on Private International Law) (South Korea)
n	footnote (internal, ie, within the same chapter)
no	number/numbers
nQCCP	Code of Civil Procedure 2014 (Quebec, Canada)
para	paragraph/paragraphs
pt	point/points (internal, ie, within the same chapter)
QCC	Civil Code (Quebec, Canada)
QCCP	Code of Civil Procedure (Quebec, Canada)
Sec	Section/Sections
TRIPS	Agreement on Trade-Related Aspects of Intellectual Property Rights
UK	United Kingdom
UNIDROIT	Institut international pour l'unification du droit privé (International Institute for the Unification of Private Law)
US / USA	United States of America
USD	United States Dollar
v	versus
vol	volume/volumes

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Legislation

International/Supranational

1968 Brussels Convention

1980 Hague Convention

1996 HCCH Child Protection Convention,

2007 Lugano Convention

2015 Insolvency Regulation

2019 HCCH Judgments Convention

Agreement on Trade-Related Aspects of Intellectual Property Rights

Principles of Transnational Civil Procedure 2004 (ALI / UNIDROIT) (‘2004 ALI-Unidroit Principles’)

Brussels Ibis Regulation

Brussels IIter Regulation

Council Decision 2001/470/EC of 28 May 2001 establishing a European Judicial Network in civil and commercial matters, OJ L 174, 27 June 2001

Model European Rules of Civil Procedure 2020 (ELI / UNIDROIT) (‘2020 ELI-Unidroit Rules’)

Final Resolution on the Provisional Measures adopted by IDI in 2017 (‘2017 IDI Resolution’)

HCCH 2005 Convention on Choice of Court Agreements

Guidelines on Intellectual Property and Private International Law 2020 (ILA) (‘2020 Kyoto Guidelines’)

Joint Action 98/428/JHA of 29 June 1998 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, on the creation of a European Judicial Network, O.J. L 191 (EU)

'Lisbon Guidelines’ on the Protection of Privacy in Private International and Procedural Law 2022 (ILA) (‘2022 Lisbon Guidelines’)

Lisbon Treaty on the Functioning of the European Union (EU)

Maintenance Regulation

Principles on Provisional and Protective Measures 1996 (ILA) (‘1996 Helsinki Principles’)

Regulation (EU) 2022/850 of the European Parliament and of the Council of 30 May 2022 on a computerised system for the cross-border electronic exchange of data in the area of judicial cooperation in civil and criminal matters (e-CODEX system), and amending Regulation (EU) 2018/1726, OJ L 150, 1 June 2022 (EU)

Regulation (EU) No 655/2014 of the European Parliament and of the Council of 15 May 2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters OJ L 189, 27.6.2014, 59–92, ‘EAPO Regulation’.

Regulation 2017/1001 (EU Trademark Regulation)

Regulation No 650/2012 (Succession Regulation)

Resolution of the IDI on the principles for determining when the use of the doctrine of forum non conveniens and anti-suit injunctions is appropriate, 2 September 2003

National

2003 UK-Pakistan Judicial Protocol on Children Matters under which both the UK and Pakistan have a designated liaison judge to help information about a case pass from one country to the other.

Civil Procedural Law 2023 (China)

Code de droit international privé (Code of Private International Law) (Belgium) 

Code de procedure civil (Code of Civil Procedure) (France)

Code de procédure civile (Code of civil procedure) 1974 (Marocco)

Codice di procedura civile (Code of Civil Procedure) (Italy)

Código Civil y Comercial de la República Argentina (Civil and Commercial Code of the Repbulic of Argentina) (Argentina)

Código de Processo Civil (Civil Procedure Code) 2015 (Brazil)

Constitución Política de los Estados Unidos Mexicanos (Political Constitution of the United Mexican State) (Mexico)

Ley de cooperación jurídica internacional en materia civil (Statute on international judicial cooperation in civil matters) (Spain)

Loi fédérale sur le droit international privé (Federal Act on Private International Law) (Switzerland)

Reglamento 1/2018, sobre auxilio judicial internacional y redes de cooperación judicial internacional (Regulation 1/2018 on international judicial assistance and international judicial cooperation networks) [Official State Gazette, no. 249 of 15 October 2018] (Spain)

Ustawa – Kodeks postępowania cywilna (Code of Civil Procedure) (Poland)

국제사법/國際私法 (Act on Private International Law) (South Korea)

---

Cases

International/Supranational

Denilauler, Case C-125/79 (CJEU), Judgment of 21 May 1980 [ECLI:EU:C:1980:130].

Reichert and Kockler, Case C-261/90 (CJEU), Judgment of 26 March 1992 [ECLI:EU:C:1992:149].

Van Uden, Case C-391/95 (CJEU), Judgment of 17 November 1998 [ECLI:EU:C:1998:543].

Mietz, Case C-99/96 (CJEU), Judgment of 27 April 1999 [ECLI:EU:C:1999:202].

Italian Leather, C-80/00 (CJEU), Judgment of 6 June 2002 [ECLI:EU:C:2002:342].

Gasser, C-116/02 (CJEU), Judgment of 9 December 2003 [ECLI:EU:C:2003:657].

Turner, Case C-159/02 (CJEU), Judgment of 27 April 2004 [ECLI:EU:C:2004:228].

Purrucker, Case C-256/09, Opinion of AG Sharpston [ECLI:EU:C:2010:437].

Gruber, Case C-464/01 (CJEU), Judgment of 20 January 2005 [ECLI:EU:C:2005:32].

Owusu, Case C-281/02 (CJEU), Judgment of 1 March 2005 [ECLI:EU:C:2005:120].

St. Paul Diary, Case C-104/03 (CJEU), Judgment of 28 April 2005 [ECLI:EU:C:2005:255].

Allianz (West Tankers), Case C-185/07 (CJEU), Judgment of 10 February 2009 [ECLI:EU:C:2009:69].

A, Case C-523/07 (CJEU), Judgment of 2 April 2009, A [ECLI:EU:C:2009:225].

Purrucker, C-296/10 (CJEU) Judgment of 9 November 2010 [ECLI:EU:C:2010:665].

Gazprom, Case C-536/13 (CJEU), Opinion of AG Wathelet [ECLI:EU:C:2015:316].

HanseYachts, Case C-29/16 (CJEU), Judgment of 4 May 2017 [ECLI:EU:C:2017:343].

Vinyls Italia, Case C-54/16 (CJEU), Judgment of 8 June 2017 [ECLI:EU:C:2017:433].

IQ, Case C-478/17 (CJEU), Judgment of 4 October 2018 [ECLI:EU:C:2018:812].

TOTO, Case C-581/20 (CJEU), Judgment of 6 October 2021 [ECLI:EU:C:2021:808].

T.N. and N.N., Case C-617/20 (CJEU), Judgment of 2 June 2022 [CLI:EU:C:2022:426].

M. Ya. M., Case C-651/21 (CJEU), Judgment of 30 March 2023 [ECLI:EU:C:2023:277].

National

Vernor v Elvies (Scottish Court of Session), Judgment of 23 November 1610 [1610 Mor 4788].

Maritime Insurance Co Ltd v Geelong Harbor Trust Commissioners (High Court of Australia), Decision of 19 June 1908 [1908 HCA 37].

Société du Gaz de Paris v Armateurs Français (House of Lords), Judgment of 3 December 1925 [1925 UKHL 2].

Koster v. Lumbermens Mutual Casualty Co. (US Supreme Court), Decision of 10 March 1947 [330 U.S. 518].

Gulf Oil Corp. v. Gilbert (US Supreme Court), Decision of 10 March 1947 [330 U.S. 501].

Case 73-13820 (Court of Cassation, French), Judgment of 26 November 1974.

Nippon Yusen Kaisha v. Karageorgis (England and Wales Court of Appeal), Decision of May 1975 [1975 1 WLR 1093].

Mareva Compania Naviera SA v International Bulkcarriers SA The Mareva (England and Wales Court of Appeal), Decision of 23 June 1975, [1980 1 All ER 213].

Colorado River Water Conservation District v. United States (US Supreme Court), Judgment of 24 March 1976 [424 US 800 1976].

Siskina (Owners of cargo lately laden on board) v Distos Cia Naviera SA (House of Lords, UK), Judgment of 26 October 1977 [1979 AC 210].

Case Goto v. Malaysian Airline System Berhaa (Supreme Court, Japan) Judgment of 16 October 1981.

Piper Aircraft Co. v. Reyno (US Supreme Court), Decision of 8 December 1981 [454 U.S. 235].

Case before Tokyo District Court, Japan, Judgment of 27 September 1982 [HJ 1075, 137].

British Airways Board v Laker Airways Ltd (House of Lords), Judgment of 18 July 1984 [1985 AC 58].

Case 3464 (Court of Cassation, Italy), Judgment of 8 June 1985.

Spiliada Maritime Corp v Cansulex Ltd (House of Lords), Decision of 19 November 1986 [1986 UKHL 10].

Société Nationale Industrielle Aérospatiale v Lee Kui Jak (Privy Council), Judgment of 14 May 1987 [1987 UKPC 12].

Babanaft International Co SA v Bassatne (England and Wales Court of Appeal), Judgment of 29 June 1988 [1989 1 All ER 433].

Oceanic Sun Line Special Shipping Co v Fay (High Court of Australia), Judgment of 30 June 1988 [1988 HCA 32].

Metro Shipping Travel Ltd v Global Cruises SA (Supreme Court, Cyprus), Judgment of 1989 [1989 1 C.L.R. 182].

Voth v Manildra Flour Mills Pty Ltd (High Court of Australia), Judgment of 13 December 1990 [1990 HCA 55].

Case before Tokyo District Court, Japan, Judgment of 29 January 1991 [HJ 1390, 98].

Amchem Products Inc. v. British Columbia (Workes' Compensation Board), Case 22256 (Supreme Court of Canada), Judgment of 25 March 1993 [1993 1 S.C.R 897].

Turner Entertainment Co. v. Degeto Film GmbH (Court of Appeals for the Eleventh Circuits, United States) (1994) 25 F.3d 1512.

Mercedes-Benz AG v. Herbert Heinz Horst Leiduck Co (Hong Kong), No 18 of 1995 (Judicial Committee of the Privy Council) Judgment of 24 July 1995 [1995 UKPC 31].

Airbus Industrie G.I.E. v Patel and Others (England and Wales Court of Appeal), Judgment of 31 July 1996 [1997 2 Lloyds Rep 8].

José Luis López Cruz against Morelia María Milagros Ybarra Valle, Case 573/95 (Supreme Court of Justice of the Nation, Mexico), Opinion of 18 November 1996 – Consultation to the Full Court on the proceedings relating to the hearing, by the thirty-third family court judge in the Federal District, of the divorce lawsuit http://www.supremacorte.gob.mx accessed 30 June 2023.

CSR Ltd v Cigna Insurance Australia Ltd (High Court of Australia), Decision of 5 August 1997 [1997 HCA 33].

Airbus Industrie G.I.E. v Patel and Others (House of Lords), Decision of 2 April 1998 [1998 UKHL 12].

Grupo Mexicano de DeSarollo, S.A. v. Alliance Bond Fund, Inc. (US Supreme Court), Decision of 17 June 1999 [527 U.S. 308 1999].

Lubbe v Cape plc (House of Lords), Decision of 20 July 2000 [2000 UKHL 41].

Case V CO 3/01 (Supreme Court, Poland), Order of 6 April 2001 [OSNC 2001 vol. 12 175].

Union Discount Co v Zoller and Others (England and Wales Court of Appeal), Judgment of 21 November 2001 [2002 1 WLR 1517].

Turner v Grovit (House of Lords), Judgment of 13 December 2001 [2002 1 WLR 107 24].

Donohue v Armco Inc (House of Lords), Decision of 13 December 2001 [2001 UKHL 64].

Case 00-22.334 (Court of Cassation, France) Judgment of 19 November 2002.

Lexington Ins. Co. v. Forrest (US District Court for the Eastern District of Pennsylvania), Judgment of 6 May 2003 [263 F. Supp. 2d 986].

CIBC Mellon Trust Co. v. Mora Hotel Corp. N.V. et al., No 47 (Court of Appeals of New York), Judgment of 8 May 2003 [100 N.Y.2d 215].

Case 01-03.248 and 01-15.452 (Court of Cassation, France), Judgment of 30 June 2004.

Trafigura Behher BV v Kookmin Bank Co. [England and Wales High Court (Commercial Court)], Judgment of 5 August 2005 [2005 EWHC 2350 (Comm)].

Dadourian Group International Inc v Simms (England and Wales Court of Appeal), Judgment of 11 April 2006 [EWCA Civ 399].

Case 03-14.553 (Court of Cassation, France), Judgment of 20 June 2006 [ECLI:FR:CCASS:2006:C101024].

Seamark Consultancy Services Limited v Joseph P Lasala et al. (Supreme Court, Cyprus), Judgment of 2007 [2007 1 C.L.R. 162].

Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp. (US Supreme Court), Decision of 5 March 2007 [549 U.S. 422].

Impulsora Turistica de Occidente, S.A. de C.V. v. Transat Tours Canada Inc. (Supreme Court, Canada), Judgment of 25 May 2007 [2007 1 SCR 867].

Bid Industrial Holdings (Pty) Ltd v Strang and Others (Supreme Court of Appeal of South Africa), Judgment of 23 November 2007 [2007 ZASCA 144].

Case No 15.398 - RJ (2009/0051622-9) (Superior Court of Justice, Brazil), Decision of 2 April 2009.

Case 08-16.369 08-16.549 (Court of Cassation, France), Judgment of 14 October 2009.

Swanvest 234 (Pty) Ltd v Nkwazi Resourcces Investments (Pty) Ltd and Another (High Court of South Africa) Judgment of 30 June 2010 [2010 ZANCHC 30].

Case 09-13.830 (Court of Cassation, France), Judgment of 8 March 2011 [ECLI:FR:CCASS:2011:CO00202].

Case 5A_259/2010 (Federal Supreme Court, Switzerland), Decision of 26 April 2012.

Case 5A_262/2010 (Federal Supreme Court, Switzerland), Decision of 31 May 2012.

Agri Wire (Pty) Ltd v Commissioner, Competition Commission (Supreme Court of Appeal of South Africa), Judgment of 27 September 2012 [2013 5 SA 484].

Case 21108 (Court of Cassation, Italy), Judgment of 28 November 2012 http://www.marinacastellaneta.it/wp-content/uploads/2013/01/sentenza-del-28-11-2012.pdf accessed on 30 June 2023.

Virsagi Management (S) Pte Ltd v Welltech Construction Pte Ltd and another appeal (Court of Appeal of the Republic of Singapore), Judgment of 25 September 2013 [2013 SGCA 50].

Caesarstone Sdot-Yam Ltd. v/s The World of Marble & Granite 2000 CC & Others (Supreme Court of Appeal of South Africa), Judgment of 26 September 2013 [2013 ZASCA 129].

Case 2013WLJPCA10218001 (Tokyo District Court, Japan), Judgment of 21 October 2013.

PT Bayan Resources TBK v BCBC Singapore Pte Ltd & Ors, Case P14/2015 (High Court of Australia), Judgment of 14 October 2015 [2015 HCA 36].

Special Appeal No. 1.633.275 - SC (2012/0176312-5) (Superior Court of Justice, Brazil), Judgment of 8 November 2016.

Case 16-11630 (Court of Cassation, French), Judgment of 18 January 2017 [ECLI:FR:CCASS:2017:C100087].

Rappo v. Accent Delight International Ltd and another (Court of Appeal of the Republic of Singapore), Judgment of 18 April 2017 [2017 SGCA 27].

AV v WV (High Court of South Africa), Judgment of 6 July 2017 [2017 ZAGPPHC 324].

Best Soar Ltd v Praxis Energy Agents Pte Ltd (High Court of the Singapore), Judgment of 6 July 2017 [2017 SGHC 158].

Case I ACz 1333/17 (Court of Appeal in Poznan, Poland], Order of 11 October 2017 [orzeczenia.ms.gov.pl].

Nori Holdings Limited et al v PJSC Bank Okritie Financial Corporation (England and Wales High Court), Judgment of 6 June 2018 [2018 EWHC 1343 (Comm].

Case 17-20.296 (Court of Cassation, France), Judgment of 3 October 2018 [ECLI:FR:CCASS:2018:C100908].

BB Energy (Gulf) DMCC v Al Amoudi & Ors (England and Wales High Court), Judgment of 4 October 2018 [2018 EWHC 2595 (Comm)].

Vinmar Overseas (Singapore) Pte Ltd v PTT International Trading Pte Ltd (Court of Appeal of the Republic of Singapore), Judgment of 22 October 2018 [2018 SGCA 65].

Shanghai Turbo Enterprises Ltd v Liu Ming (Court of Appeal of the Republic of Singapore) Decision of 13 February 2019 [2019 SGCA 11].

Vedanta Resources Holdings Limites and ZCCM Investmen Holdings PLC and Lungu (High Court of South Africa), Judgment of 23 July 2019 [2019 ZAGPJHC 250].

Bi Xiaoqing v China Medical Technologies Inc, No 188 of 2018 (Court of Appeal of the Republic of Singapore), Judgment of 30 September 2019 [2019 SGCA 50].

Case 21 O 9333/19 (Regional Court of Munich, Germany), Order of 2 October 2019.

MAN Diesel & Turbo SE v IM Skaugen SE (Court of Appeal of the Republic of Singapore), Judgment of 20 November 2019 [2019 SGCA 80].

Case RG 19/21426 (Paris Court of Appeal, France), Judgment of 3 March 2020.

Case 25064 (Court of Cassation, Italy), Order of 16 September 2021 [ECLI:IT:CASS:2021:25064CIV].

Broad Idea International Ltd v Convoy Collateral Ltd (British Virgin Island), No 004 of 2020 (Judicial Committee of the Privy Council), Judgment of 4 October 2021 [2021 UKPC 24].

Deputy Commissioner of Taxation v Huang (High Court of Australia), Judgment of 8 December 2021 [2021 HCA 43].

Li et al. v. Barber et. al. (Ontario Superior Court of Justice), Decision of 22 February 2022 [2022 ONCS 1176].

CLM v CLN et al. (High Court of the Republic of Singapore), Decision of 4 March 2022 [2022 SGHC 46].

Municipio de Mariana v BHP Group (UK) Ltd (formerly BHP Group Plc) (England and Wales Corut of Appeal) Judgment of 8 July 2022 [2022 EWCA Civ 951].

QBE Europe SA/NV v Generali España de Seguros Y Reaseguros (England and Wales High Court), Judgment of 1 August 2022 [2022 EWHC 2062 (Comm)].

Ebury Partners Belgium SA/NV v Technical Touch BV (England and Wales High Court), Judgment of 18 November 2022 [2022 EWHC 2927 (Comm)].

Public Institution for Social Security v Ruimy & Aerium Finance Limited (England and Wales High Court), Judgment of 31 January 2023 [2023 EWHC 177 (Comm)].

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Basset U, ‘Private International Law’, in U Basset (ed), Introduction to the Law of Argentina (Kluwer Law International 2018) 269.

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