Internacionalização do processo civil: a adoção da doutrina do Forum Non Conveniens como um princípio para combater a ocorrência do Forum Shopping e da litispendência internacional

Abstract

Considering the competing jurisdiction of two or more countries arising from the conveniences brought by globalization, the present research is intended to answer mainly two questions: (i) it is possible to adopt the forum non conveniens doctrine as a common principle to harmonize the rules of civil procedure and prevent the occurrence of international lis pendens and forum shopping; (ii) to which extent the International Institute for the Unification of Private Law (UNIDROIT) and the Hague Conferences on Private International Law (HCCH), the two major procedural unifying institutions, are suitable to ensure legal pluralism and bring different systems closer at the same time. Thus, firstly the study presents the ‘ordered pluralism theory’ proposed by the French jurist Mireille Delmas-Marty, which comprises the idea legal internationalization and a number of techniques for coordinating differing legal systems such as ‘inter-crossing’, ‘harmonization through proximity’ and ‘unification through hybridization’. Subsequently, the two main problems arising from competing jurisdiction – forum shopping and the international lis pendens – will be addressed. Then, the two unification institutions of private international law before mentioned – UNIDROIT and HCCH – will be studied to determine whether the working method used by such bodies respect the existing legal pluralism. At the end, the doctrine of forum non conveniens will be discussed so that the possibility of including it as a means of harmonizing the existing procedural rules is examined. For this matter, the alterations proposed by the English House of Lords will be assessed in order to confirm that they respect the existing legal pluralism, as they indicate a greater chance for the forum non conveniens doctrine being adopted as a common principle. The methodology used in this research is of a qualitative nature, mainly basing itself on specialized literature, national jurisprudence and on common law case studies.