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