The problems of tactical litigation in the European Union: A case for a hybrid forum non conveniens & lis pendens model

In transnational commercial litigation involving state parties from multiple jurisdictions, disputes over jurisdiction often arise due to strategic manoeuvres by one party or state aimed at causing delays and disrupting the other party's case. This practice is known as ‘tactical litigation’. Common law countries have come up with the forum non conveniens doctrine, whereas civil law countries have adopted the lis pendens rule as solutions to tackle this problem. Furthermore, the Recast Brussels Regulation of 2012 endeavours to counter tactical litigation by reinforcing the use of choice of court agreements and encouraging party autonomy.

Despite the existing mechanisms and regulations, some litigants have managed to exploit loopholes in the Recast Brussels Regulation and engage in abusive tactical litigation. Hence, the objective of this thesis is to propose a solution that combines the advantages of both the common law forum non conveniens doctrine and the civil law lis pendens rule to counter such abusive tactics. This harmonization will enhance flexibility, predictability, and certainty. The thesis will employ comparative, doctrinal, and case study approaches. The analysis of the European Court of Justice's ruling in the Gasser case will be used to examine the strict enforcement of the lis pendens rule, while the decision of the House of Lords in the Spiliada case will be used to illustrate the strict application of the forum non conveniens doctrine by the English courts. The strict
interpretation of the lis pendens rule and the forum non conveniens doctrine has created opportunities for the use of tactical litigation in transnational commercial litigation.