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The principle of ''lis alibi pendens'' (Latin for "dispute elsewhere pending") applies both in municipal law, public international law, and private international law to address the problem of potentially contradictory judgments. If two courts were to hear the same dispute, it is possible they would reach inconsistent decisions. To avoid the problem, there are two rules. ''Res judicata'' provides that once a case has been determined, it produces a judgment either inter partes or in rem depending on the subject matter of the dispute, i.e. although there can be an appeal on the merits, neither party can recommence proceedings on the same set of facts in another court. If this rule were not in place, litigation might never come to an end. The second rule is that proceedings on the same facts cannot be commenced in a second court if the ''lis'' i.e. action, is already ''pendens'', i.e. pending, in another court. ''Lis alibi pendens'' arises from international comity and it permits a court to refuse to exercise jurisdiction when there is parallel litigation pending in another jurisdiction. Shany (2003) considers the problem within the public international law field where, for example, the ''Southern Bluefin Tuna'' dispute could have been determined either by the International Court of Justice (ICJ), or by tribunals established under the United Nations Convention on the Law of the Sea (UNCLOS), and the ''Swordfish'' dispute, which was submitted simultaneously to both the International Tribunal for the Law of the Sea (ITLOS) and a dispute settlement panel of the World Trade Organisation (WTO). Kwak and Marceau (2002) consider the jurisdiction between the dispute settlement mechanisms of regional trade agreements (RTAs) and that of the WTO. ==European rules== Articles 27–30 of the ''Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters'' (September 1968, O.J. 1998) as amended by the "Brussels Regulation", i.e. Council Regulation (EC) No 44/2001 of 22 December 2000 on ''Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters'', lay down a framework of regulation to avoid conflicting judgments (see Brussels Regime). For an analysis of the relationship between EU law and the New York Convention, see Balkanyi–Nordmann (2002). The European Court of Justice ruled in ''Overseas Union Insurance Ltd. v New Hampshire Insurance Co.'' (1991) ECR I-3317 that Article 27 applies to all proceedings commenced in the courts of the European Union regardless of the habitual residence or domicile of the parties. The Article provides for the court first seised to have priority in the same cause of action between the same parties without giving a second court the right to examine the first court's grounds for accepting jurisdiction with Article 27(2) imposing a mandatory duty on the second court to decline any jurisdiction unless the first court determines not to accept jurisdiction. This places a duty on the first court to make the decision expeditiously. In ''Turner v Grovit'' Case C-159/02 judgment on April 27, 2004, an English court, being the first court seised, issued an injunction to restrain one of the parties from pursuing the proceedings they had commenced in Spain. Even where the defendant is acting in bad faith with the intention of frustrating the existing proceedings, the issue of an injunction was inconsistent with the Convention. The English court should trust the Spanish court to apply Article 27(2) (Blanke: 2004). The question is what constitutes the "same cause". In ''Gubisch Maschinenfabrik v Palumbo'' (1987) ECR 4861 (Hartley: 1988) and ''The Tatry v The Maciej Ratja'' (1994) ECR I-5439, the test is whether the factual basis of the claim and the laws to be applied are the same with a view to obtaining the same basic outcome. The test cannot be formal. It must look to the substance of each claim so that technical or procedural differences cannot be used to justify invoking separate jurisdictions in different Member States. One difficulty has been ''in rem'' jurisdiction, e.g. as in shipping law, but the substance test looks behind the ''res'' and identifies who the parties are and identifies what their purpose or objects are in the litigation. The parties must also be the same although the roles may be reversed between plaintiff/claimant and defendant (Seatzu: 1999). However, in multi-party actions, the subsequent court is only obliged to decline jurisdiction between the same parties, i.e. new parties may intervene and be heard in subsequent proceedings. But the courts are careful to look at the substance of the relationship between each set of parties. Thus, because an insurer has the right to use subrogation, the insurer and the insured would be considered the same person since they are both interested in achieving the same outcome.〔1998/3 (Drouot Assurances SA v Consolidated Metallurgical Industries (CMI Industrial Sites), Protea Assurance and Groupement d'Intérêt Économique (GIE) Réunion Européenne )〕 Similarly, a wholly owned subsidiary company can be regarded as the same party as its parent. Article 28 deals with cases that are related, i.e. actions which are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings. But Article 28(3) allows the second court a discretion to consider whether it should stay the second action. Article 29 provides for conflicts of exclusive jurisdiction, but its application is still uncertain. Under Article 16 some courts are granted exclusive jurisdiction over a cause, e.g. under Article 16(4) the courts of the place of registration of a patent have exclusive jurisdiction on issues of validity and infringement, but if a party has already commenced proceedings in another state, Article 27(2) obliges the second court to dismiss the second suit. The new Article 30 seeks to introduce an autonomous interpretation of the concept of seisin. The original rule identified the time of commencement by reference to the local rules in each Member State. This could lead to difficulties when a second state had different rules as to when an action commenced because it might allow a second action to overtake the first on a technicality (e.g. in some states the rule was that an action had not commenced until it was served, whereas others held that an action commenced on the day the pleadings were lodged or registered in the court office. The new Article 30 now provides that an action commences when the plaintiff/claimant takes the necessary steps to continue the proceedings which will usually be service and the system will, for the most part, avoid unfairness (see Eisengraeber: 2004 at pp19–21 for an explanation of difficulties in the English procedural system). 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「Lis alibi pendens」の詳細全文を読む スポンサード リンク
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