Forum Can Non Save Us Now

Abstract Tactical litigation is a reality of the adversarial litigation framework that is currently in place. However, there is a difference between the tactical litigation of choosing a forum which may have more favorable law or be more convenient and choosing a forum with the intent to drive the opposing party to failure. The latter has been the issue with some of the tactical litigation that has occurred under the European Union’s framework of lis pendens. While the Recast Brussels I Regulation has alleviated some of those issues, it has not addressed all of them. While some scholars have argued that these issues of lis pendens may be answered by introducing the common law doctrine of forum non conveniens to these proceedings, that is not the case. This Article explores the pitfalls of lis pendens and forum non conveniens and ultimately finds that forum non conveniens is unable to solve the issues lis pendens creates in tactical litigation. Furthermore, the Article finds that forum non conveniens, inherently and acting as it should, has its own problems which echo lis pendens’ own issues in the European Union. Furthermore, forum non conveniens is simply incompatible with the policies the European Union implemented with lis pendens. Ultimately, forum non conveniens is unable to answer the problems lis pendens has created and solutions must be found from within the European Union’s own civil system.