Res judicata provides that once a case has been determined, it produces a judgment either inter partes or in rem depending on the subject matter of the dispute: although there can be an appeal on the merits, neither party can recommence proceedings on the same set of facts in another court.
Shany (2003) considers the problem within the public international law field where, for example, the Southern Bluefin Tuna dispute could have been determined either by the International Court of Justice (ICJ), or by tribunals established under the United Nations Convention on the Law of the Sea (UNCLOS), and the Swordfish dispute, which was submitted simultaneously to both the International Tribunal for the Law of the Sea (ITLOS) and a dispute settlement panel of the World Trade Organization (WTO).
Kwak and Marceau (2002) consider the jurisdiction between the dispute settlement mechanisms of regional trade agreements (RTAs) and that of the WTO.
Even where the defendant is acting in bad faith with the intention of frustrating the existing proceedings, the issue of an injunction was inconsistent with the Convention.
In Gubisch Maschinenfabrik v Palumbo (1987)[6] (Hartley: 1988) and The Tatry v The Maciej Rataj (1994),[7] the test is whether the factual basis of the claim and the laws to be applied are the same with a view to obtaining the same basic outcome.
Article 28 deals with cases that are related, i.e. actions which are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.
The new Article 30 now provides that an action commences when the plaintiff/claimant takes the necessary steps to continue the proceedings which will usually be service and the system will, for the most part, avoid unfairness.
The abuse of Article 27 was first described by Franzosi (1997 and 2002) in intellectual property disputes where a party infringing a patent commenced proceedings for a declaration before a court with long delays because of the number of cases waiting to be heard.
A final option to consider is that the IP licensor should include exclusive jurisdiction clauses in the grant of all licences.
Although such clauses almost certainly do not prevail over lis alibi pendens, some courts have been persuaded to prefer the parties' choice over torpedo actions.
However, this approach will potentially create conflicting judgments and Article 35 will deny recognition to the subsequent forum's decisions.
This situation may represent a breach of Article 6 European Convention for the Protection of Human Rights which stipulates that everyone is entitled to a fair and public hearing within a reasonable time.