SAME CLAIM

A claim is based on a treaty if the claim will eventually stand or fall according as the provisions
of the Treaty are construed in one way or another.1

LIS PENDENS APPLIES TO THE PCIJ

The Court, when it has to define its jurisdiction in relation to that of another tribunal, cannot
allow its own competency to give way unless confronted with a clause which it considers
sufficiently clear to prevent the possibility of a negative conflict of jurisdiction involving the
danger of a denial of justice.2

PROBLEM POSED BY OF CONFLICTING ADJUDICATION

The Appeals Chamber of ICTY overstepped its jurisdiction 3 when it criticized the adjudication of
this Court on the test of control over military and paramilitary operations by armed forces of US
in Nicaragua.

FRANCE

The municipal system in France provide for special Court called Tribunal des Conflicts to decide
specifically issues of conflicting jurisdiction.4

ENGLAND

If a case was already instituted before a foreign court, the court will exercise this discretion if the
defendant proves both that the continuance of the action would work an injustice as being
oppressive or vexatious to him or being an abuse of the process of the court in some other way
and that the stay would not cause an injustice to the plaintiff. 5 Furthermore, in certain
matrimonial proceedings6 and in claims arising out of collisions between ships no English court
can entertain an action until previous foreign proceedings have ended.'7

GERMANY

2
Factory at Chorzów (Indemnity), Jurisdiction, PCIJ, Series A, No. 9, p. 30.
3
Prosecutor v. Dusko Tadic (Appeal Judgement), IT-94-1-A, International Criminal Tribunal for
the former Yugoslavia (ICTY), 15 July 1999, available at:
https://www.refworld.org/cases,ICTY,40277f504.html, ¶5.
4

5
St Pierre v South American Stores (Gath and Chaves) Ltd (1936) 1 KB 382; Atlantic Star v
Bona Spes (1973) 2 All ER 175 (HL).
6
First Schedule to the Domicile and Matrimonial Proceedings Act, 1973 (c 45). See also Dicey
and Morris (note 14), Rule 54A.
7
Administration of Justice Act, 1956 (4 & 5 Eliz 2 c 46) sec 4(2).
It is a general practice in German Courts to take notice of the lis pendens if an action was
pending in a foreign court, and such judgment would be recognized and enforced in Germany. 8
The law is similar in Switzerland.9

USA

The Courts in the United States of America may stay proceedings pendente lite,10 particularly if
the expected foreign judgment would qualify for enforcement in USA.11

GENERAL INT LAW

Jurists have accepted the applicability of Lis pendens is applicable in international law.12

ESSENTIALS OF LIS PENDENCE

The parties should be same.13 A cessionary to a party, being it successor, complies with the pre-
requisite of identity.14

“demanding the same thing on the same ground” (perSteyn CJ in African Farms and Townships
Ltd v Cape Town Municipality 1963 (2) SA 555 (A) at 562A); or which comes to the same thing,
“on the same cause for the same relief” (per Van Winsen AJA in Custom Credit Corporation
(Pty) Ltd v Shembe 1972 (3) SA 462(A) at 472A-B; see also the discussion in Kommissaris van
Binnelandse Inkomste v ABSA Bank Bpk 1995 (1) SA 653 (A) at 664C-E);

8
Kegel Internationales Privatrechi 3 ed 433; Gamillscheg Internalionales Privairecht vol 11 art
13-17 EG BGB, 1973[ hereinafter, “ Gamilllscheg” ], 953 sec 454;
9
Gamillscheg, 955 sec 469.
10
Ehrenzweig-Jayme Private International Law, II 1973 42.
11
Ehrenzweig Conflict of Laws 1962 129.
12
D.P. O’ Connell, International aw, Vol. I, 1965, 13; P. Guggenheim, Traite de droit
international public, Vol. 2, 1954, 149.
13
Westphal v Schlemmer 1925 SWA 127
14
Afarks and Kantor v Van Diggelen 1935 TPD 29 (S JJ).