The International Lis Pendens in terms of EU Law and Turkish Law

Aygün M.

2. The International Conference on the Changing World and Social Research (ICWSR’2016), Barcelona, Spain, 14 - 16 October 2016, pp.659-672

  • Publication Type: Conference Paper / Full Text
  • City: Barcelona
  • Country: Spain
  • Page Numbers: pp.659-672
  • Anadolu University Affiliated: Yes

Abstract

Lis pendens is a defense mechanism to prevent duplication in the legal proceedings. According to this principle it is not permissible to initiate new proceedings if litigation between the same parties and involving the same dispute is already pending. In the law of many countries including Turkish law, lis pendens is taken into account and arranged to in terms of cases doesn’t contain foreign element. However, in the cases with foreign element in the international area, although the boundaries are variable, international lis pendens it is possible to say that has been generally accepted.

In the European Union (EU) Law, Council Regulation EC No 1215/2012 on Jurisdiction and the Recognition and Enforcement of the Judgments in Civil and Commercial Matters (hereinafter, Regulation”) arranges ‘lis pendens’ and ‘related actions’ on its articles from 29 to 34. The European legislation on conflicts of jurisdiction has taken account of this and adopted the lis pendens principle in a way that it is being extended across borders if the same action is brought up in the courts of different Member States.

In Turkish Law, there isn’t a clear provision which international lis pendens be arranged. However, international lis pendens has been generally accepted that emerged from articles 41 and 47 of Code on International Private Law and Civil Procedure Law, No. 5718.

This study aims to determine the location and boundaries of international lis pendens in terms of EU Law and Turkish Law. Firstly, general overview of the Regulation regarded 29-34 of the articles is stated and secondly, definition and scope of the ‘Lis Pendens’, ‘Related Actions’, ‘Exclusive Jurisdiction and Jurisdiction Agreement’ is determined and particularly ‘The new rules about proceedings for Non-Member States’ are examined in detail. Then, within this scope international lis pendens approaches in Turkish law is discussed and the situation in Turkish law is compared. Finally, the conclusion we have achieved in the study is settled.