LIS PENDENS IN CIVIL AND COMMON LAW COUNTRIES


Introduction
A literal translation of Lis Pendens means a pending legal action, it is the maxim behind the genesis for the regulation of multiplicity of the proceedings. Lis Pendens prohibits the initiation of parallel proceedings of the same cause between the same parties but simply in a different forum. It is accepted worldwide that multiplicity is undesirable as it leads to a wastage of resources. Numerous countries the world over have formulated their own methods of precluding such multiplicity with one of the most common responses being declining jurisdiction. In civil law countries, the jurisdiction is declined through the old first in time rule, which states that if a suit has been initiated in a court or an adjudicating body then similar proceedings cannot be initiated with the other body while the proceedings are still being considered. In common law countries, however, the doctrine of forum non-conveniens is used, wherein lis pendens is simply a factor for declining jurisdiction in the assessment of an appropriate forum.  In this way lis pendens forms an individual doctrine in civil law countries, but in common law countries, it is simply a part of a larger albeit an important part of the doctrine. 

Lis Pendens in India 
In India, the courts have defined the principle of forum non-conveniens as the discretionary powers of the court to entertain a suit on the grounds as to whether there exists a more appropriate forum to entertain the plea or not. As per the Delhi High court in the case of GlaxoSmithKline and Horlicks Limited v. Heinz India, the test for the application of the doctrine is of two parts
  1. Whether there is an alternative forum which is appropriate?
  2. Whether it is in the interest of justice to relegate the suit to the forum?
The balance of convenience test is also considered to be a material consideration for the same. There is a proper statutory provision that prohibits parallel proceedings as given under Section 10 of the Code of Civil Procedure. 
This section provides for the parallel proceedings instituted before and is not concerned with whether the judgment has been given or not. The suit must be between the two same parties and the court in which it has previously been instituted must be competent to grant relief for the same and must be pending before the same. The titles of the parties litigating must also be the same. 
Lis Pendens in India takes a unique position as it follows the test of first in time rule as well as the doctrine of forum non-conveniens by providing for it in the inherent powers of the court.

Lis Pendens in The United Kingdom
The United Kingdom followed the doctrine of forum non-conveniens for adjudicating the jurisdiction of a suit. However, this was altered after the 1968 Brussels Convention as the major states of the convention were of a civil nature. In articles 21 and 22, the principle of lis pendens was expressly provided that the courts cannot overlook if the proceedings were pending in another court. Article 21.  This makes it clear that the doctrine of lis pendens is expressly provided for, articles 22 and 23 ask the courts other than the court first seized to disregard jurisdiction if the proceedings are pending before another court. This was also exhibited in the Brussels I Regulation’s article 27 which seeks to prevent contrary proceedings.
In the UK this convention was implemented by passing the Civil Jurisdiction and the Judgements Act 1982, though as a result of the convention the doctrine of forum non-conveniens was diluted this was not done for the cases pertaining exclusively to the Scottish courts where the Convention rules and the domestic UK rules did not apply. Section 49 of the act preserves the doctrine by declining the jurisdiction on its basis except where to do so will not be inconsistent with the convention.
Furthermore, there is also the element of res sub judice in the UK law which applies to the reporting of the ongoing proceedings, it aims to prevent the formation of any preconceived idea for an ongoing proceeding this is now dealt with the Contempt of Courts Act.

Lis Pendens in the U.S.A.
In the United States, the doctrine of forum non-conveniens holds significance one of the earliest examples being that of Gulf Oil Corpn v. Gilbert the court while dismissing the suit held that the only precondition is, that there must be an adequate alternative forum where the suit could be taken up. There must be at least one forum that has the jurisdiction to hear the case. A second test, called the balancing test is present which checks the private and public interests in the dismissal of a suit, the mere existence of a parallel proceeding is not a reason enough for the dismissal of the claim.
Although rule 41 of the federal rules of civil procedure provides for the involuntary dismissal of suits there has been no case where the same was applied to dismiss a suit in case of parallel litigation. In toto, there are no federal rules governing the dismissal of any parallel litigation and is only found in the federal common law. There are usually other preferable remedies than outright dismissal such as transfer or consolidation and antisuit injunctions.
Though there is no particular federal statute governing such parallel litigation it is provided for in the common law as a test of forum non-conveniens, a lack of outright dismissals could be because of the dual nature of the country and the multiplicity of interstate claims.  
Similar to the United Kingdom it provides for any media reporting of the court proceedings for prevention of any bias that may form in the minds of the jurors in the American Bar Association Model Rules of Conduct.

Lis Pendens in Civil Law Countries
Lis Pendens in Japan
The Japanese code of civil procedure of 1890 provided for the duplicity of proceedings by prohibiting it under article 231 of the code. This was later reformed in 1996 and as such the provision for the duplicity of the proceedings was shifted to article 142.
The rationale behind the provision stands the same as those provided for in Section 10 of the Indian Civil Procedure Code and in those provided for the Brussels Convention. 
As per Takkaki Hattori the pendency of a suit even if it is not brought properly to the court bars the parties in the suit to initiate another suit with the same subject matter between the same parties. It is also considered to be a waste and an unnecessary expenditure of the labour.
The duplicity, unlike the USA, is barred regardless of the litigant’s interest, the court also provides that the judgment of the court if the final is applicable throughout the country. The code also provides for the transfer of the suit to a different forum if it is against the litigant’s interest as given in articles 17 to 20. 

Conclusion
There has been a general practice in the civil law countries to use the legal tradition and the practice of first in time to stop the multiplicity of proceedings as the court that has been first seized and any subsequent proceedings would be stopped or order of stay would be passed. In cases of common law countries, the doctrine of forum non-conveniens is usually followed as in the cases of common law and the doctrine of lis pendens in the domestic laws is usually considered as a factor of the same with the test of the balance of convenience. We see that though common law is considered to follow this, however, most countries like the United Kingdom and India usually have had a separate provision of the same as in the civil law countries. It can be observed that this is followed by the USA as there is no separate provision in the federal law but the doctrine is found in the federal common law.

References
[1] Yuval Shany, The Competing Jurisdictions Of International Courts And Tribunals 8 (Oxford University Press, 2003).
[2] Campbell Mclachlan, ‘Lis Pendens In International Litigation’ 337 (Recueil Des Cours 199 2008).
[3] James J. Fawcett (ED), Declining Jurisdiction In Private International Law: Reports To The Xivth Congress Of The International Academy Of Comparative Law, Athens, August 1994 (Clarendon Press, 1995).
[4] GlaxoSmithKline and Horlicks Limited v Heinz India, CS(COMM) 808/2017, available here.
[5] The Code of Civil Procedure, 1908, § 10, No. 5, Acts of Parliament, 1908 (India).
[6] Escorts Const. Equipment Ltd v. Action Const. Equipment Ltd (1999)79 DLT 300, available here.
[7] Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968, available here 
[8] Brussels I Regulation, Jurisdiction and The Recognition and Enforcement of Judgments in Civil and Commercial Matters, (EU) No 1215/2012, available here
[9] Gulf Oil Corpn v Gilbert,330 U.S. 501 (1947), available here.
[10] American Bar Association [ABA], Center for Professional Responsibility, Model Rules of Professional Conduct, available here.

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