International Parallel Litigation-A Survey of Current Conventions and Model Laws
George, James P., Texas International Law Journal
Parallel litigation is difficult to define and sometimes means what the speaker wants it to mean. It may be limited to identical lawsuits with exactly the same parties and the same claims. It may also mean any instance of two or more lawsuits that may result in claim preclusion for some or all of the parties. It includes concepts of reactive and repetitive litigation,1 related litigation,2 and derivative litigation.3 Whatever it is thought to encompass, it incurs criticism as being vexing and harassing, wasteful of the parties' and courts' resources, and inclined to produce inconsistent results and possibly intergovernmental discord.4 At the same time, it is a prime example of the long tradition of forum shopping and is a useful tool for the attorney seeking either recovery or protection for the client.
Contradictory policies have also been a problem. Courts' authority and willingness to remedy parallel litigation draws on a number of conflicting doctrines and policies: honoring plaintiffs choice of forum, favoring the first-filed lawsuit, reluctance to dismiss an action that has proper jurisdiction and venue, avoidance of waste, convenience to parties, and respect paid to coordinate courts and governments and, in state-federal conflicts, federalism.5
International litigation has the additional problem of the different approaches of the common law and civil law countries. Common law jurisdictions use parallel litigation remedies that favor a multi-factor test and measure detail and nuance, but lack consistency and predictability. Civil law jurisdictions use code-based remedies with more rigid rules and less recognition of special circumstances. Both seem to allow local plaintiffs to manipulate the litigation to a degree that undermines fairness.
The struggle-to define parallel litigation (which cases are parallel enough to justify stopping one?) and deal with its contradictory policies-is problematic even within the United States. International litigation amplifies the problem, and moreover, amplifies the policy concerns over waste, harassment, and judgment consistency. In the past few decades, treaties and model laws have addressed the issue, with varying approaches and results. This article will examine thirteen of those efforts, commenting on their content, approach, and merits. It will do so against a background of existing remedies under the common law and civil law for international parallel litigation.
A. The settings
Parallel litigation occurs in four distinct settings. The first is intra-jurisdictional-- within the same jurisdiction, such as within Texas or within the U.S. federal system, governed entirely by that jurisdiction's internal law. The second is intra-union-in two or more states that are members of a constitutional (the United States) or treaty-based union (the European Union), both of which may be governed by the forum state's local law, by interstate compacts, or by federally imposed law. The third is state-federal-in a court of a
federally subordinated state, and in a court of its federal parent, which raises special issues of federalism in the United States, governed by federal common law. The fourth is international-in entirely distinct states not bound by a federal system or a comprehensive treaty, where the parallel litigation remedy may be governed by local law, a specific (often bilateral) treaty, or international custom.
This discussion will address primarily the second and fourth categories of parallel litigation-intra-union and international. The international category is obvious from the title of this article. The intra-union choice is less obvious, but is included because it offers examples of current model laws and treaties that are being compared in this article.
In all four settings, the approaches by courts, legislators, and the drafters of treaties and model laws have basic similarities and significant differences. …