Lis alibi pendens and related actions before third country courts under the Brussels Ibis Regulation

Regulation (EU) No. 1215/2012 (s.c. Brussels Ibis Regulation) contains two new rules under Articles 33 and 34, addressing cases of lis alibi pendens and related actions pending before third country courts. Those rules, intended to coexist in the system of the Regulation with the traditional intra-EU lis pendens and related actions rules, have brought about a significant innovation in respect of the traditional inter partes logic inspiring the Brussels I system of allocation of jurisdiction. The introduction of the said provisions must be welcomed, since, even though some Member States already possessed rules addressing cases of lis pendens and, less frequently, related actions pending before foreign courts, the fact of having recourse to such rules would have endangered uniformity in the application of the Brussels I regime. The sensibly more cautious terms in which the said new rules are conceived, as compared to the traditional intra-EU lis pendens and related actions rules, reflects the different context in which they are intended to apply. In fact, whereas the intra-EU rules presuppose a background of mutual trust between the EU Member States and the respective judicial systems, the new rules tend to achieve a unilateral effort of coordination with third country courts, irrespective of reciprocity and of the sharing of common values and procedural guarantees. In examining the further requirements posed by the new rules as concerns lis pendens and related actions pending before third country courts, it will be inevitable to note similarities between such requirements and those present under domestic rules concerning lis pendens or related actions pending before foreign courts. Both sets of rules, in fact, reflect a similar concern for the protection of the procedural rights of the parties. Unfortunately, the other EU instruments dealing with civil jurisdiction in different areas, including those adopted shortly earlier or even after the Brussels Ibis Regulation, do not contain comparable rules. The question might therefore be posed as to whether Member States might refer to their domestic rules on lis pendens and related actions pending before foreign courts in cases falling under those instruments, without endangering their effet utile.