International Lis Pendens: When Two Courts Are Seised of the Same Dispute

Imagine: you own a plot of land in Giromagny, in the Territoire de Belfort. You buy a weedkiller from a local distributor, but the product devastates your harvest. You sue the manufacturer and its insurer before the Belfort court. But the manufacturer, on its side, has already sued its insurer in Milan. Who should judge? The French court or the Italian court?

This question is that of lis pendens (when two courts are seised of the same dispute). The decision of the Cour de cassation of 2 June 1981 (no. 80-10.359) answers it clearly: for there to be lis pendens, the claims must be brought between the same parties. If the parties differ, each court remains competent.

But what does this actually change for you, as a property owner or professional? This decision protects your right to choose the court closest to your home or to your loss. It prevents a dispute from being referred abroad simply because one of the parties has seised another court elsewhere. Let us break down this story.

The facts: a story like many that happen every day

The company Alibel, a distributor based in Lille, sells a weedkiller manufactured by the company Cyanamid Italia. A farmer from Giromagny uses this product on his maize fields, but the weedkiller turns out to be defective: the plants turn yellow, the harvest is almost nil. The farmer turns against Alibel, which in turn wants to be indemnified by the manufacturer and its insurer.

On 18 December 1978, Cyanamid Italia sues its insurer, the company Gerling Konzern, before the civil court of Milan, to obtain coverage for the loss. A few days later, Alibel sues both Cyanamid Italia and Gerling Konzern before the commercial court of Lille, to obtain compensation for its own loss (reimbursement of the price, loss of clientele, etc.).

The two cases concern the same product, the same loss, but the parties are not exactly the same. In Lille, the claimant is Alibel (the distributor), and the defendants are Cyanamid Italia and Gerling Konzern. In Milan, the claimant is Cyanamid Italia, and the sole defendant is Gerling Konzern. Alibel is not a party to the Milan proceedings.

Gerling Konzern then raises lis pendens: according to it, the Lille court should decline jurisdiction in favour of the Milan court, because the two disputes are related. The commercial court of Lille agrees and declares itself incompetent. Alibel appeals to the Cour de cassation.

The reasoning of the court — explained

The Cour de cassation quashes the judgment of the Douai Court of Appeal which had confirmed the declinature of jurisdiction. It bases its decision on Article 21 of the Brussels Convention of 27 September 1968 (now Regulation Brussels I bis, no. 1215/2012). This provision states that where proceedings involving the same cause of action and between the same parties are brought in the courts of different Contracting States, any court other than the first seised shall decline jurisdiction in favour of that court.

The High Court recalls a fundamental principle: for there to be lis pendens, the claims must be brought between the same parties. In other words, the two proceedings must involve exactly the same persons, in the same roles (claimant/defendant). In this case, in Lille, the claimant is Alibel; in Milan, the claimant is Cyanamid Italia. Alibel is not a party to the Milan dispute. The parties are therefore not identical.

What few people know: the Brussels Convention (and the current Regulation) distinguishes lis pendens from related actions. Related actions (where the disputes are linked but not identical) only allow a stay of proceedings, not a declinature of jurisdiction. Here, the Lille court could have stayed its decision pending the Milan judgment, but it did not have to declare itself incompetent.

The Court adds that the lower courts should have specified why they considered that the claims were brought between the same parties. They did not do so. Hence the quashing.

However, note: this decision predates the Gubisch judgment of the CJEC (1987) which broadened the notion of lis pendens to claims having the same subject matter and cause, even if the parties are not strictly identical. But the requirement of identity of parties remains a pillar.

What this changes for you — practically

In clear terms, this decision protects you: if you are a victim of damage caused by a defective product, you can sue the manufacturer and its insurer before the French court, even if the manufacturer has already sued its insurer abroad. You will not be referred to a distant court.

For a landlord in Belfort: Imagine your tenant causes a water leak that damages the neighbouring flat. The neighbour sues you and your insurer before the Belfort court. At the same time, your insurer sues the tenant before the court of his domicile (say Montbéliard). The parties are not the same: you are not a party to the dispute between the insurer and the tenant. The Belfort court remains competent.

For a purchaser in Giromagny: If you buy a house with a hidden defect (e.g., undisclosed termites), you can sue the seller and the estate agent in France. If the seller himself sues the expert who inspected the house before a Belgian court, your French action is not paralysed.

If you are in this situation, you need to check that the parties are indeed identical. If they are not, you can maintain your action in France. In practice, have the pleadings examined by a lawyer.

Four tips to avoid this type of dispute

• Check jurisdiction clauses: in your contracts (lease, sale, supply), see if a foreign court is designated. If so, you might be forced to litigate abroad. Negotiate a clause conferring jurisdiction on the court of your domicile.
• Ensure all concerned parties are sued at the same time: if you have several potential liable persons (manufacturer, insurer, distributor), sue them all in the same proceedings. This avoids parallel litigation.
• Keep evidence of the date proceedings were initiated: in case of lis pendens, it is the date of the first claim that counts. Keep the receipt of filing with the registry or the date of service.
• Consult a lawyer at the first signs of conflict: a professional can assess the risk of lis pendens and advise you on the strategy to adopt (e.g., seise the French court first).

Further reading: related case law and developments

This 1981 decision is part of a consistent line of case law from the Cour de cassation on the requirement of identity of parties. Subsequently, the CJEC clarified in Gubisch Maschinenfabrik (1987) that lis pendens may exist even if the claims are not strictly identical, provided they concern the same subject matter and cause. But the identity of the parties remains necessary.

More recently, Regulation Brussels I bis (2012) introduced a rule of lis pendens for related actions in certain cases, but still with the requirement of identical parties for a declinature of jurisdiction. The trend is therefore towards strictness: French judges are attached to preserving each party's right of access to a court.

This means for the future: if you are involved in a cross-border dispute, do not rely on lis pendens to have a French proceeding dismissed as long as the parties are not strictly the same.

Key points to remember

FAQ:

• What is lis pendens? It is the situation where two courts are seised of the same dispute between the same parties. The court seised second must decline jurisdiction in favour of the first.
• Can I be referred to a foreign court if my opponent has already seised a court abroad? Only if the parties are exactly the same. If you are not a party to the foreign proceedings, your French action remains valid.
• What time limits apply? For contractual liability, you have 5 years from the discovery of the damage (Article 2224 of the French Civil Code). For hidden defects, 2 years from the discovery of the defect.
• How much does legal action cost? Lawyers' fees vary: a simple consultation (30 min) is charged around €45 by Maître Zakine. A full procedure can cost from €1,500 to €5,000 depending on complexity.
• What should I do if I receive a claim to appear before a foreign court? Consult a lawyer specialised in international law. He or she can challenge the competence of the foreign court if the conditions are not met.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of procedure — and often much more. Book an appointment →