Res Judicata

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The doctrine of res judicata safeguards the final and binding effect of decisions in three ways.

  1. The doctrine precludes re-litigation of the same subject-matter within the same proceeding, e.g. after a partial decision (such as on jurisdiction) 1 or after the partial annulment of an award. 2
  2. The doctrine precludes re-litigation of the same subject-matter between the same parties in follow-up proceedings in that duplicative claims are inadmissible (ne bis in idem). 3
  3. If the subject-matter of the prior decision becomes an incidental matter in follow-up proceedings, the prior decision will be conclusive and contrary pleadings will be precluded. 4

Res judicata is therefore said to have a negative effect (ne bis in idem) and a positive effect (conclusive effect in a subsequent proceeding). 5

II. Rationale and context

Res judicata preclusive and conclusive effects prevent inconsistent decisions. Thereby, it serves both public and private interests in justice, consistency, legal certainty, prevention of abuses and efficiency. 6 At the same time, the doctrine affects the adjudicatory power of the tribunal applying it and the precluded party’s right to be heard. 7

Res judicata is only one out of several means for achieving forum coordination. Others balance comparable interests, e.g. consolidation, lis pendens or irreconcilability as a ground for non-enforcement. The principles may thus affect res judicata issues. (See further Parallel proceedings)

A general principle of international law, 8 res judicata is not codified. Notwithstanding phrases stating that decisions are “final and binding between the Parties” (e.g. Articles 59, 60 ICJ Statute 9 , Article 53(1) of the ICSID Convention 10 ), most of res judicata’s specifics come down to jurisprudence. An exception is the specific issue of revising arbitral awards after new facts came to light which is governed by Article 51 ICSID Convention. Many discussions on the other specifics under international law exist due to significant divergences between national doctrines. 11

Recognition under e.g. the New York Convention is a pre-requisite, not a synonym for cross-jurisdictional res judicata. 12

Cheng, B., General Principles of Law as Applied by International Court and Tribunals, 1953, p. 336:

“little, if indeed any question as to res judicata being a general principle of law or as to its applicability in international judicial proceedings.”

De Ly, F. and Sheppard, A., ILA Interim Report on Res Judicata and Arbitration, Arbitration International, 2009, p. 35.

Zeuner, A. and Koch, H., Effects of Judgments (Res Judicata), International Encyclopaedia of Comparative Law, 2014, Chapter 9.

Pika, M., Third-Party Effects of Arbitral Awards, 2019, Chapters 2 and 4.

Berger, B. and Kellerhals, F., International and Domestic Arbitration in Switzerland, 3 rd ed., 2015, para. 2111.

Gaillard, E. and Savage, J., Fouchard Gaillard Goldman on International Commercial Arbitration, 1999, para. 1667.

Poudret, J-F. and Besson, S., Comparative Law of International Arbitration, 2007, para. 850.

Restatement (Third) U.S. Law of Int’l Comm. Arb. TD No. 2 2012, paras. 4-9.

Born, G., International Commercial Arbitration, 2 nd ed., 2014, p. 3741 et seq.

IV. Applicable law

Treaty tribunals apply international law to res judicata. 13 For arbitral tribunals with their seat in a national jurisdiction, the potential conflict-of-laws approaches to res judicata are plentiful and rarely settled by appellate jurisprudence. 14 For this reason, several arbitral tribunals, 15 the ILA 16 and academic authors 17 favoured the creation of transnational principles.

But also see Iberdola v. Guatemala, Final Award.

Pika, M., Third-Party Effects of Arbitral Awards, 2019, 6.01.

ICC Case 3267, Final Award, (1987) XII Y.C.A. 87.

ICC Case 4126, Partial Award, (1974-1985) I ICC Collection 511, 513-514.

ICC Case 5835, 1992, cited by Hascher in Travaux du comité francais DIP 19.

ICC Case 6233, 1992, (1991-1995) III ICC Collection 332.

ICC Case 6363, Arbitral Award, 1991, (1992) XVII Y.C.A. 185.

ICC Case 9800, 2000, (2001-2007) V ICC Collection 659.

ICC Case 12226, Award, 2004, unpublished, cited by the commentator to ICC Case 9800, 667.

ICC Case 13133, Final Award, (2010) XXXV Y.C.A. 129, [36-39].

ICC Case 13509, Arbitral Award, (2008-2011) VI ICC Collection 739.

De Ly, F. and Sheppard, A., ILA Final Report on Res Judicata and Arbitration, Arbitration International, Vol. 25, Issue 1, 2009, p. 67.

Born, G., International Commercial Arbitration, 2 nd ed., Kluwer, 2014, p. 3776.

Hanotiau, B., Complex Arbitrations, Kluwer, 2006, pp. 239-256.

Mayer, P., Litispendence, connexité et chose jugée dans l’arbitrage international, in Liber Amicorum Reymond, p. 187.

Schaffstein, S., The Doctrine of Res Judicata before International Commercial Arbitral Tribunals, Oxford University Press, 2016, para. 6.214.

V. Requirements under international law

A. First requirement: final decision

Res judicata can be based upon partial decisions and non-annulled parts of arbitral awards, 18 but not on interim decision (i.e. provisional measures and procedural orders) which are temporary in nature. 19 One tribunal noted that its own injunctive relief granted in an award but limited in time, may constitute res judicata. 20

But also see Cavalum v. Spain:

Moreover, a final award can lose its res judicata effect to the extent it was annulled. 21

Settlements need to be confirmed in a consent award for res judicata to apply. 22

Regarding res judicata of decisions on jurisdiction in particular, numerous tribunals affirmed this effect, 23 some of them without formally mentioning the principle. 24 When it comes to the practically-decisive question whether tribunals have the power to re-visit their own jurisdictional decisions, however, many tribunals affirmed this power, especially for the event that new facts came to light. 25

But also see Cavalum v. Spain:

Several other preliminary requirements known from national laws have not yet been addressed in detail by international jurisprudence, such as:

B. Second requirement: same subject-matter

1. General principles

The triple identity test (i.e. identity of petitum, causa petendi, persona) is often implicitly or explicitly mentioned by tribunals to determine the res judicata effect of a final decision. 29 However, the identiy of petitum (claim) 30 and cause petendi (cause of action 31 ) are addressed together regularly (herein as “subject-matter”). 32

In order to assess whether the prior decision had the same subject-matter as the pending arbitration, the prior decision must be assessed on the basis of its dispositif (operative part) and the reasoning – particularly with regard to the matters that the parties brought before the prior tribunal for adjudication. 33

The resulting principles are:

  1. The material facts brought before the prior and the subsequent tribunal must be identical. 34 As with jurisdictional decisions (see above), ICSID tribunals mentioned that they could re-open their own prior decisions when new facts came to light as it is e.g. provided for in the ICSID Convention (see above). 35
  2. The underlying legal grounds must be identical, 36 for which functional identity suffices also in treaty matters according to several authorities. 37
  3. Res judicata cannot go further than what the prior tribunal actually adjudicated. 38 In particular, the ICJ held that a dismissal for lack of evidence was not res judicata on the underlying legal grounds. 39 Moreover, jurisdictional or admissibility decisions settle only these matters. 40

McLachlan, C., Shore, L. and Weiniger, M., International Investment Arbitration: Substantive Principles, 2nd ed., 2017, paras. 4.197-4.198.

Wehland, H., The Coordination of Multiple Proceedings in Investment Treaty Arbitration, 2013, para. 6.87.

2. The particular issue of ‘issue estoppel’, ‘issue preclusion’ or ‘collateral estoppel’

The problem whether res judicata only applies to the adjudication of the prior petitum (request) as in civil-law doctrine 41 or to the entire reasoning as at common law, is a classic of international res judicata. 42 The doctrine of ‘issue preclusion’, ‘issue estoppel’ or ‘collateral estoppel’ (the terms are used interchangeably in international law), derived from Common Law, precludes a party from re-litigating a point of law or fact that was decided by a previous tribunal and formed an essential element in deciding the dispute. 43 Whether under international law, issue preclusion is a distinct doctrine or only a broad application of res judicata’s same-subject-matter requirement may be an academic question. 44

ICC Case 7061, unpublished, cited by Hanotiau, Complex Arbitrations (Kluwer, 2006), para. 551.

ICC Case 13509, Arbitral Award, (2008-2011) VI ICC Collection 739.

Mayer, P., Litispendance, connexité et chose jugée dans l’arbitrage international, in Liber Amicorum Claude Reymond – Autour de l’arbitrage, 2004, pp. 198-200.

De Ly, F. and Sheppard, A., ILA Final Report on Res Judicata and Arbitration, Arbitration International, Vol. 25, Issue 1, 2009, p. 67, para. 56.

Born, G., International Commercial Arbitration, 2nd ed., 2014, p. 3776.

Schaffstein, S., The Doctrine of Res Judicata before International Commercial Arbitral Tribunals, 2016, para. 6.236.

Griffith, G. and Seif, I., Chapter 8: Work in Progress: Res Judicata and Issue Estoppel in Investment Arbitration, in Kaplan, N. and Moser, M. J. (eds.), Jurisdiction, Admissibility and Choice of Law in International Arbitration: Liber Amicorum Michael Pryles, (© Gavan Griffith & Isabella Seif; Kluwer Law International 2018) p. 122:

“Investment tribunals also have applied mixed and confusing nomenclature within these contexts, to reach, in most matters, objectively ‘correct’ results to vindicate the underlying public policy for there to be finality. Some use the term res judicata without particularising that they are applying issue estoppel. Some do not apparently recognize concepts of issue estoppel as a separate exclusionary principle. Others treat res judicata and issue estoppel as entirely distinct doctrines.”