A proceeding is parallel if it involves similar parties and similar issues. The U.S. Supreme Court has not yet addressed how federal courts should assess parallel proceedings in foreign courts (sometimes referred to as lis alibi pendens). The default approach has been to allow both cases to proceed until a judgment has been rendered in one case that may be given preclusive effect in the other. Most federal courts treat this question as one of abstention, though occasionally courts address it through forum non conveniens.
Alternatively, a U.S. court may issue an antisuit injunction ordering the parties to discontinue the suit in the other jurisdiction. There is a split among the circuits on the standard for issuing antisuit injunctions, with some courts adopting a conservative approach of granting such an injunction only if the foreign proceeding threatens the jurisdiction of the U.S. court or an important U.S. public policy and other courts adopting a liberal approach of granting such an injunction if the foreign proceeding is duplicative and vexatious.
The Supreme Court has not explained how federal judges should evaluate parallel litigation in foreign courts. If the same parties are litigating the same issues before a foreign tribunal, should the federal court stay its hand? Or should it proceed until one or the other of the cases results in a judgment? The traditional European…Continue Reading
Restatement (Fourth) of Foreign Relations Law § 425 (antisuit injunctions)
Report of the Working Group on Jurisdiction on Matters Related to Jurisdiction in Transnational Civil or Commercial Litigation, Including Rules for Concurrent Proceedings (Hague)
Quaak v. Klynveld Peat Marwick Goerdeler, 361 F.3d 11 (1st Cir. 2004) (antisuit injunctions)
Paul Herrup and Ronald A. Brand, A Hague Parallel Proceedings Convention: Architecture and Features, Chicago Journal of International Law Online (forthcoming 2022) (Pitt)
Paul Herrup and Ronald A. Brand, A Hague Convention on Parallel Proceedings, 63
Harvard International Law Journal Online 1 (2022) (HJIL)
Maggie Gardner, Deferring to Foreign Courts, 169 U. Pa. L. Rev. 2291 (2021) (SSRN)
I. Strong, Anti-Suit Injunctions in Judicial and Arbitral Procedures in the United States, 66 Am. J. Comp. L. 153 (2018) (Missouri)
Campbell McLachlan, Lis Pendens in International Litigation (2009)
Jansen Calamita, Rethinking Comity: Towards a Coherent Treatment of International Parallel Proceedings, 27 U. Pa. J. Int’tl L. 601 (2006) (Penn)
Stephen B. Burbank, Jurisdictional Equilibration, the Proposed Hague Convention and Progress in National Law, 49 Am. J. Comp. L. 203 (2001)
George A. Bermann, The Use of Anti-Suit Injunctions in International Litigation, 28 Colum. J. Transnat’l L. 589 (1990) (Columbia)