TORPEDO LITIGATIONS UNDER REGULATION 44/2001
TORPEDO LITIGATIONS UNDER REGULATION 44/2001

Summary/Abstract: Regulation 44/2001 deals with the lis pendens rule strictly. The first-come first serve rule is among most basic rules of Regulation. It enables parties to foresee the developments of the court procedure and to avoid the irreconcilable judgments. However, the lis pendens rule can also be misused with an action for negative declaration filed before the overloaded court (heavy docket) where procedure is slow. This enables party to buy some time while the other party cannot seek parallel court protection. This innovation by advocates blocks further proceedings and has been named "torpedo litigations". The torpedoing can be indeed bitterly for the party who thinks that the other party violates the contract, but the latter rushes to the court first (race to the courts) and ask the court to decide the case. Article is analysing one such case as dealt with the ECJ. It focuses on issues how to deal once the torpedo litigation is launched. It is indeed not on the court to take into account interests of the parties (iudex non calculate), but it is the defendant before the court first seized who is without appropriate court protection and basically faced with a sort of a denial of justice (déni de justice). Some national courts are fighting against such actions. In comparative law different approaches exits; like lack of same cause of action, priority of the positive claims, application of specific summary proceedings to enforce cross-border injunctions, etc. However, no uniform approach exits. It looks like that the only exception to the lis pendens is possible in case of the exclusive jurisdiction as proposed in the theory. EU is still lacking the common solution to this phenomenon. Solutions are likely to be found in the general legal principles applying to bad faith and misuse of rights. In order to derogate from the lis pendens rule an abusive torpedo action shall be proved. However, abusive torpedo intention is, as always, hard to prove.

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