A Comity Of Errors: Understanding The International Abstention Doctrine

I. Introduction

You are sitting in your office in Miami, a hotspot for litigation related to Latin American trade and investment, when your client comes in with a problem. A foreign corporation has infringed upon your client’s valid copyright in Florida. In an attempt to beat your client to the punch, the foreign corporation has already sued your client in a Latin American court to obtain a declaration that it is not infringing. The foreign court has not yet rendered a judgment. Understandably, your client prefers to litigate his claim close to home in a federal court in Florida. Should you bring the claim here, or will the federal court merely abstain from hearing the case based on the pending foreign case?

The federal court will base its decision on the Eleventh Circuit’s international abstention doctrine in the case. 1 So, if you are going to advise your client about whether to bring the case, you must know how this doctrine works.

II. Abstention Began as a Response to Parallel Domestic Litigation

To understand international abstention, one must first understand its genesis. Federal courts initially applied the abstention doctrine to situations of concurrent jurisdiction between a state court and federal court (both courts being within the United States). But for a federal court to even consider abstaining, it first had to determine that the cases were parallel.

So what makes a claim parallel? Proceedings are parallel if “substantially the same parties are contemporaneously litigating substantially the same issues …

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