Generally, in simple terms, it is agreed that disputes subjected to neutral parties for determination must come to an end. It is also the position of the law that a dispute between parties, once determined by a competent neutral party, shall not resurface before another neutral party between the same disputing parties and on the same issues or cause of action as the case may be except where an appeal or application to the same court level or higher court is allowed by law. The law calls this res judicata. In International Arbitration the principle is not any different except that it is developed to fit the transnational nature of disputes.
Table of Contents
1. Introduction
2. Deconstructing Res Judicata in International Arbitration
a) Res judicata and Issue Estoppel
b) Res Judicata under Common Law
c) Res Judicata in Civil Law Jurisdiction
3. Conclusion
Objectives and Topics
This paper examines the application of the doctrine of res judicata within the context of international commercial arbitration, analyzing how this principle—which prevents the relitigation of determined issues—is adapted to the transnational nature of international disputes. It explores the inherent complexities arising from the divergence between legal regimes and the discretionary power of tribunals in interpreting this concept.
- Theoretical comparison between common law and civil law approaches to res judicata.
- Distinction between res judicata and the concept of issue estoppel.
- Impact of procedural versus substantive law on tribunal decisions.
- The role of "triple identity" (object, cause, and parties) in civil law jurisdictions.
- Challenges regarding legal uncertainty and tribunal discretion in arbitration.
Excerpt from the Book
Deconstructing Res Judicata in International Arbitration
To appreciate the principle of res judicata in international arbitration this paper will explore the principle under both common and civil law jurisdictions while bringing out their similarities and the points of divergence. It will also explore whether the concept dwells on procedures or substance. It will start by looking at the principle of res judicata alongside issue estoppel and while at it explore the likely occurrences of this phenomenon.
It apparent that the principles of res judicata and issue estoppel make part of the broader concept of res judicata. Whether it is always the case is a matter of fact dependent on each case. Res judicata is explained above by Redfern and Hunter as “a right or fact specifically put in issue and determined by court or tribunal of competent jurisdiction cannot later be put back in question as between the same parties”.
On the other hand a plea or defence of issue estoppel, if successful, stops a party in proceedings from challenging a finding of fact or law that has already been determined in earlier proceedings between the same parties (or their privies) – provided that the determination was central to the decision in those proceedings.
Summary of Chapters
1. Introduction: Outlines the fundamental concept of res judicata as a legal mechanism to end disputes and its adaptation to the transnational characteristics of international arbitration.
2. Deconstructing Res Judicata in International Arbitration: Analyzes the distinctions between res judicata and issue estoppel, while contrasting the broad common law application with the rigid, codified triple-identity approach found in civil law systems.
3. Conclusion: Summarizes that while res judicata is a straightforward municipal concept, it becomes complex and uncertain when applied in international arbitration due to varying legal regimes and tribunal discretion.
Keywords
Res judicata, International Arbitration, Issue Estoppel, Common Law, Civil Law, Transnational, Legal Disputes, Triple Identity, Tribunal Discretion, Procedural Law, Substantive Law, Cause of Action Estoppel, Henderson v Henderson, Arbitration Awards, Legal Certainty.
Frequently Asked Questions
What is the fundamental purpose of this paper?
The paper aims to examine and deconstruct the application of the doctrine of res judicata within the specialized field of international commercial arbitration, highlighting how it differs across legal systems.
What are the primary themes discussed?
Central themes include the comparison of common and civil law approaches, the distinction between res judicata and issue estoppel, and the challenges of applying these rules in a transnational legal context.
What is the main research objective?
The objective is to explore how the principle of res judicata is interpreted and applied by tribunals, specifically focusing on the tension between procedural and substantive law requirements.
Which methodology is employed in this research?
The work utilizes a comparative legal analysis, evaluating statutory provisions and academic interpretations to highlight similarities and divergences between different jurisdictional approaches.
What does the main body cover?
The main body examines the definitions of res judicata and issue estoppel, investigates the "triple identity" test in civil law, and analyzes the broader, more flexible interpretation common in jurisdictions like Uganda.
Which keywords best describe the document?
The core keywords are Res judicata, International Arbitration, Issue Estoppel, Common Law, Civil Law, and Tribunal Discretion.
How does the civil law approach differ from common law regarding res judicata?
Civil law jurisdictions typically apply a more rigid "triple identity" test (identity of object, cause, and parties), whereas common law jurisdictions often provide a broader application that includes privies and concept variations like issue estoppel.
What role does "lex arbitri" play in this context?
The "lex arbitri" (the law of the seat of arbitration) is often considered by tribunals to determine how to construe challenges based on res judicata, adding another layer of complexity to the arbitration process.
Why is the concept of issue estoppel significant?
Issue estoppel is significant because it prevents parties from challenging facts or laws already determined in prior proceedings, though its recognition remains inconsistent between common and civil law jurisdictions.
What is the "rule in Henderson v Henderson"?
It is a common law practice that prevents parties from raising claims or defenses in new litigation that could have—and should have—been raised in earlier proceedings.
- Citar trabajo
- Adams Rajab Makmot-Kibwanga (Autor), 2018, The Doctrine of Res Judicata in International Commercial Arbitrations, Múnich, GRIN Verlag, https://www.grin.com/document/454740
