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.
A Primer on Transnational Parallel Proceedings
It is not uncommon for parties involved in cross-border disputes to file competing or overlapping lawsuits in different forums. When should a U.S. court stay its hand in favor of a lawsuit filed in another country? Conversely, when should a U.S. court take proactive measures to defend its jurisdiction from interference by proceedings in a…
Continue ReadingA Primer on Antisuit Injunctions
The antisuit injunction, which blocks a party from initiating or pursuing litigation in a foreign court, is a powerful tool in the judicial arsenal. Courts issue these injunctions, under appropriate circumstances, to prevent the development of parallel proceedings. They can also be used to prevent a party from taking action in a foreign forum intended…
Continue ReadingGreenpeace Anti-SLAPP Suit Blocked by International Antisuit Injunction
In 2019, Energy Transfer, the developer of the Dakota Access Pipeline, sued Greenpeace International, a Dutch foundation, in North Dakota state court. Last year, Greenpeace responded with an anti-SLAPP (Strategic Litigation Against Public Participation) lawsuit against Energy Transfer in Dutch court. In the latest twist in this lengthy dispute, the North Dakota Supreme Court issued…
Continue ReadingThe Protecting Americans from Russian Litigation Act
In June 2020, Russia enacted the so-called Lugovoy Law, Article 248.1 of the Russian Arbitrazh Procedural Code, which allows Russian courts to assume exclusive jurisdiction over sanctioned persons, ignoring contractual choice-of-court and arbitration clauses. Article 248.2 authorizes anti-suit and anti-arbitration injunctions by Russian courts to enforce that exclusive jurisdiction. Article 248 has been invoked repeatedly in…
Continue ReadingWaco Judge Enjoins Litigation of U.S. Patents in Germany
Judge Alan D Albright (Western District of Texas) loves patent cases. Before his appointment as a district judge in 2018, he was a patent litigator. After his appointment, he “went on a media blitz, letting everyone know that his court would welcome patent litigation.” As detailed here, Judge Albright adopted standing orders that promised speedy…
Continue ReadingRestatement (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)



