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This chapter concludes that the questions arising from the doctrine of res judicata in international commercial arbitration is only one aspect of a greater problem — the coordination of jurisdictions between arbitral tribunals and other national, international, and supra-national courts and tribunals. The parallel coexistence of these courts and tribunals, coupled with the increasing complexity of international disputes that involve a multitude of closely related parties, contracts, and issues, will inevitably lead to conflicts of jurisdiction. These conflicts not only raise questions of res judicata, but also of the applicability of other jurisdiction-regulating mechanisms, such as lispendens, forum non conveniens, consolidation, and joinder, as well as the availability of anti-suit and anti-arbitration injunctions of damages for the breach of arbitration agreements.

This chapter analyses and compares the application of the res judicata doctrine in common and civil law countries. Res judicata is the principle that a matter may not, generally, be relitigated once it has been judged on the merits. The doctrine of res judicata is well established in common law jurisdictions, and allows for several res judicata pleas, namely the plea of cause of action estoppel, issue estoppel, former recovery, or abuse of process. On the other hand, the doctrine of res judicata in civil law countries recognises only one plea. In France, for instance, the doctrine of res judicata is referred to as ‘autorité de chose jugxée’. A judgment obtains ‘autorité de chose jugée’ when it is rendered, whether or not a means of recourse is available against the judgment.

This chapter discusses how international law deals with the problems of multiple proceedings and conflicting judgments concerning the doctrine of res judicata. In international law, the problem is handled differently depending on whether it arises in the private or public international law context. In private international law, the problem has long been resolved by domestic private international law acts and various bilateral conventions. In Europe, the Brussels I Regulation seeks to avoid these problems among Member States by unifying rules on jurisdiction and the recognition and enforcement of judgments. On the other hand, in public international law, a uniform doctrine of res judicata has been developed on the basis of domestic res judicata rules.

This introductory chapter discusses the judiciary problems that may arise from the increasing number of multi-fora disputes in the international arbitration. International arbitration is widely considered to be the principal method of dispute resolution for international commercial disputes, which commonly involve multiple parties, contracts, and issues. The multiplicity of the subjects involved in the disputes often results in conflicts concerning the proper forum to be applied, and give rise to the question: if a national court renders a decision on the jurisdiction of the arbitral tribunal, would the arbitrators be bound by the prior decision, or could they decide anew whether they have jurisdiction? If the arbitrators are bound by a national court judgment, the parties’ arbitration agreement may be frustrated. On the other hand, if the arbitrators are not bound by the prior judgment and decide that there is a valid arbitration agreement, parallel court and arbitration proceedings may ensue.

This chapter addresses problems concerning the doctrine of res judicata in international commercial arbitration. It also asks the following questions: What are the possible consequences of the occurrence of res judicata issues in international commercial arbitration? Expressed differently, what interests are at stake? Duplicative proceedings of res judicata require vast resources. The parties are required to invest considerable amount of time, money, and efforts in proceedings which they already went through, without having any good reason to suppose that the second proceedings will lead to a more accurate decision than the first one. These situations only gave an additional burden on the party who prevailed in the first proceedings. Also, these proceedings create risk of inconsistent decisions. Coexistence of inconsistent decisions could seriously undermine the very existence of the arbitral process.

This chapter presents varying situations in which issues concerning the res judicata doctrine arise before arbitral tribunals. These situations may be sorted into four categories, based on the nature of the court or tribunal having rendered the first final and binding decision. First, situations that arise between arbitral tribunals and state courts; second, between different arbitral tribunals; third, within a same arbitration proceeding between a partial and a final award and lastly, between supra national courts or tribunals and arbitral tribunals. The fourth category concerns mostly investment protection treaty cases. Because of the proliferation of multiple proceedings and an increasing bifurcation of arbitration proceedings, the number of cases in which arbitrators will have to deal with res judicata issues will also increase.

This chapter presents possible approaches in dealing with the problem of the res judicata doctrine in international commercial arbitration, namely the conflict-of-laws approach, comparative law approach, and transnational approach. The conflict-of-laws approach defines clear and generally accepted conflicts-of-law rules allowing arbitrators to determine the law or laws governing res judicata. The determination of conflict-of-laws rules will depend on the characterisation of res judicata as being of substantive or procedural nature. The comparative law approach compares different domestic laws to determine generally accepted res judicata principles common to a majority of states. Lastly, the transnational approach formulates uniform, autonomous res judicata principles that are better adapted to the particularities of international commercial arbitration created for litigation.

This chapter explains principles of the res judicata doctrine for international commercial arbitral tribunals based on transnational law. There are two main values that transnational litigation upholds in determining the scope of the preclusive effects of a prior judgment in one country and the subsequent proceedings in another country. First, a judgment must be accepted in the recognising state with the original effects it would have in the state in which it was first rendered. Thus, the law of the country, where the first judgment was rendered, will determine the judgment’s preclusive effects in the subsequent proceedings. Second, the application of the law of the rendering state should preserve the integrity of the rendering state’s judicial system and that state’s resources.