Having observed damage to the equipment delivered by a Mauritian company in Gabon, a group of French companies initiated proceedings in the Gabonese court of Port-Gentil seeking compensation for the damages sustained.
Three months later, while the lawsuit was pending in Gabon, the Mauritian company initiated proceedings in France before the Commercial Court of Nanterre seeking payment for the supply of the equipment.
The French companies raised the exception of international lis pendens before the Commercial Court of Nanterre, and requested the court to decline jurisdiction to the benefit of the Gabonese court.
Lis pendens refers to a situation where the same dispute has been brought before two courts of the same level, having equal jurisdiction. In international law, the exception of lis pendens in a case involving a French and a foreign court was enshrined on 26 November 1974 in a landmark decision in the “Miniera di Fragne” case by the first civil division of the French Supreme Court.
In this landmark decision, the French Supreme Court had made the admissibility of this exception contingent solely on the possible recognition in France of the foreign judgement to be entered, one of the conditions for this recognition being the indirect jurisdiction of the foreign court to adjudicate the dispute.
In a new ruling dated 19 February 2013, the French Supreme Court confirmed the admissibility of the exception of international lis pendens, citing the case law principles stemming from the “Miniera di Fragne” case (French Supreme Court, Commercial Division, 19 February 2013, appeal no. 11-28.846).
In finding the Gabonese court to have indirect jurisdiction, the French Supreme Court noted that the recognition in France of Gabonese judgments is governed by an international convention rendering applicable the conditions of jurisdiction under French private international law. The Gabonese court therefore had jurisdiction provided, in the absence of exclusive jurisdiction by the French courts or fraud, there was a necessary connection between the dispute and forum seized, which there was in that case.
This ruling is noteworthy considering the low number of courts having granted this exception of international lis pendens. This situation is in large part explained by a case law landscape that has evolved.
Until very recently, exceptions of international lis pendens rarely met the condition of admissibility, requiring the recognition of the foreign judgement in France.
Indeed, in application of the jurisdictional privileges granted to French Nationals pursuant to Articles 14 and 15 of the Civil Code, it was considered that French courts had exclusive jurisdiction to hear any dispute when one of the parties was a French national. In such cases, there was no possibility of recognition of a judgment entered by a foreign court seized of the same dispute.
The reversal of its position by the French Supreme Court in the “Prieur” ruling on 23 May 2006, which called into question the exclusive jurisdiction of the French courts, also considerably expanded the cases of recognition of international lis pendens, as illustrated by its new ruling rendered on 19 February 2013.