Lis Alibi Pendens: Managing Parallel Proceedings in Cross-Border Disputes

The phenomenon of parallel proceedings — known in Latin as lis alibi pendens — has long posed challenges to international dispute resolution. In its simplest form, the doctrine arises where proceedings involving the same cause of action and the same parties are pursued concurrently before courts in different jurisdictions. The risks are obvious: duplicative litigation, inconsistent judgments, wasted costs, and strategic manoeuvring by parties seeking a more favourable forum.

From the perspective of international commercial litigation, lis alibi pendens is more than a procedural nuisance; it strikes at the heart of judicial efficiency and legal certainty. Courts across Europe and common law jurisdictions have grappled with how best to respond, balancing comity, party autonomy, and the sovereign prerogative of courts to exercise jurisdiction.

The European Framework

Within the European Union, the principle is codified in the Brussels I Recast Regulation (Regulation (EU) 1215/2012). Article 29 mandates that where proceedings involving the same cause of action and the same parties are brought in the courts of different Member States, the court second seised must stay its proceedings until the jurisdiction of the first court is established. This “first-in-time” rule reflects a strict, almost mechanistic approach. The policy is clear: to avoid conflicting judgments and promote mutual trust between Member States.

Yet, the rigidity of the Brussels regime is not without criticism. It may reward tactical plaintiffs who race to seize a court with only a tenuous connection to the dispute. The doctrine of torpedo actions, where a party deliberately files in a slow-moving jurisdiction to delay proceedings elsewhere, illustrates this tension. The Recast Regulation mitigated such abuses in arbitration matters, but the underlying concern remains in commercial litigation.

The Common Law Approach

By contrast, the English courts approach lis alibi pendens with a more flexible doctrine of forum non conveniens. Rather than an automatic stay, the English court considers whether another forum is “clearly and distinctly more appropriate” to try the case, having regard to connecting factors such as applicable law, location of evidence, and the interests of justice. This discretionary test, articulated in Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460, underscores the pragmatic ethos of the common law.

Nonetheless, English courts recognise the importance of avoiding duplicative proceedings. Anti-suit injunctions, though increasingly curtailed by European jurisprudence, remain a potent tool outside the EU context. Such injunctions restrain a party from pursuing parallel foreign litigation in breach of contractual agreements or in circumstances amounting to vexatious conduct.

The Cypriot Dimension

As an EU Member State (prior to Brexit), Cyprus has applied the Brussels I framework, while simultaneously drawing upon its common law heritage. The Cypriot courts have acknowledged lis alibi pendens in the context of applications for stays of proceedings, emphasising that objections must be raised promptly and through the proper procedural route. In cases such as Tanberg Investments Ltd v UCF Invest Ltd (2019), the Cypriot courts refused to entertain lis pendens objections as collateral arguments in interim injunction applications, underscoring that such issues should be addressed by specific pleadings or applications to strike out.

This pragmatic stance reflects the balance between the broad equitable powers of Cypriot courts under section 32 of the Courts of Justice Law (Law. 14/60) and the need to respect international comity. The doctrine thus operates not as a blunt instrument but as a contextual safeguard against abuse.

Strategic Considerations

For litigants and counsel, the implications of lis alibi pendens are profound. Parties must carefully assess jurisdictional risks at the outset, considering not only the legal merits but also the procedural timelines of potential forums. Early tactical decisions — where to file, when to file, and how to structure claims — may determine whether a dispute is resolved efficiently or mired in jurisdictional skirmishes.

From the court’s perspective, the doctrine demands a balance between discouraging duplicative litigation and preserving judicial sovereignty. The interplay between EU law, common law discretion, and national procedural rules ensures that no single model prevails universally.

Conclusion

Lis alibi pendens embodies the perennial tension of cross-border litigation: the clash between parallel sovereignties and the imperative of coherent justice. Whether applied through the Brussels Regulation’s strict “first-seised” rule, the English doctrine of forum non conveniens, or the Cypriot courts’ pragmatic application, the principle seeks to protect litigants and courts alike from the perils of parallel proceedings.

For practitioners, mastery of this doctrine is essential. It is not merely about knowing when a stay will be granted; it is about anticipating procedural dynamics, advising clients strategically, and safeguarding the integrity of the dispute resolution process in an increasingly interconnected legal order.