Part II The Doctrine of Res Judicata in International Commercial Arbitration, 5 Search for an Appropriate Approach
- Res judicata — Conflict of laws — Arbitral rules — Recognition and enforcement — Arbitrators
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.