ABSTRACT
| The national laws of various States provide for res judicata to prevent disputants from bringing the same dispute back before the courts and deem conclusive judgments as facts when considering future legal actions. The reasons behind this attitude are to ensure that the adversaries comply with court judgments to prevent the perpetuation of disputes, avoid conflicting decisions, and impose the power of the State through its judiciary. It is not a secret that national courts are no longer solely responsible for adjudicating all disputes and that arbitrators play a significant role in this. In many cases, this situation has given rise to addressing the applicability of res judicata to prior court judgments in international arbitration. The problem lies in the fact that, although most national laws of different States address res judicata in litigation by careful and sometimes detailed regulation, they have not dealt with the same matter in international arbitration. Similarly, international arbitration rules, relevant international conventions, and soft law do not explicitly regulate the applicability of res judicata to prior court judgments in international arbitration. Consequently, this article suggests an answer to the following question: How and when should international arbitral tribunals apply res judicata to prior national court judgments? The article’s central hypothesis is that arbitral tribunals should apply the res judicata rules of the State where the court judgment was made. This solution is correctly justified because the court judgment itself, as a litigation procedure, is subject to lex fori, and res judicata is one of its inherent characteristics that should be subject also to the same lex fori. | |
- Introduction
Most national laws deal with the issue of res judicata in litigation by careful and detailed regulation. On the contrary, they do not deal with this issue by explicit regulation in international arbitration. Furthermore, relevant international conventions and arbitration rules do not explicitly address the matter. This situation makes applying res judicata to prior court judgments in international arbitration a highly complicated legal problem. The legal difficulties of applying res judicata to prior court judgments in international arbitration are numerous. Among them are the conflicting laws applicable to res judicata in international arbitration and the undetermined legal nature of res judicata.
The res judicata of prior national court judgments in international arbitration is governed in practice by several indirect considerations.
The most important considerations are the contingency of annulment and rejection of execution. The violation of res judicata rules by arbitrators may lead to annulling the arbitral award for breach of public policy if the rules of res judicata in the seat of arbitration are regarded as a public policy matter that has to be applied ex officio by national judges.[1] Similarly, it may lead to rejecting execution of the award for the same reason[2] or when the law of the seat of arbitration puts a condition for execution that the arbitral award must not contradict with any prior national court judgment.[3]
Generally, several conflicting laws may apply to res judicata of prior court judgments in international arbitration. Firstly, there is the law of the State in which the prior court judgment was rendered, deeming res judicata as an inherent characteristic of the judgment as a litigation procedure subject to lex fori. Secondly, there is the law of the State of the seat of arbitration given the annulment considerations mentioned above. Thirdly, there is the law of the State in which the award will be executed given execution considerations. Fourthly, the law which the parties to the dispute have agreed to apply may also be applicable. Needless to say that significant differences may exist between the res judicata rules in each of these national laws.
Furthermore, some scholars favor applying international law to res judicata of prior court judgments in international commercial arbitration. Superficially, the approach seems to offer clarity and consistency; however, thoroughly, this is not true.[4] According to Art. 38(1)(3) of the PCIJ Statute (currently Art. 38(1)(c) of the ICJ Statute), the doctrine of res judicata was introduced in international law as a general principle of law accepted by all nations in foro domestico.[5] This characterization suggests a generally accepted concept of res judicata in national laws; however, in reality, significant differences exist among national laws, particularly regarding the effects of res judicata, its scope, and the requirements that must be met for res judicata to apply. The fact is that the application of the doctrine of res judicata by international courts and tribunals has been inconsistent. While this may be attributed to the uncertainties surrounding res judicata in international law, it also shows a confident readiness of some international courts and tribunals to circumvent strict res judicata rules as developed and applied in a national law setting.[6]
At the other end of the spectrum, there is considerable jurisprudential and judicial controversy in most countries regarding the legal nature of res judicata and whether it is a substantive or procedural issue.[7] Although the majority regards it as procedural,[8] some English commentators consider it a substantive issue related to evidence.[9] In France, some scholars distinguish between the negative and the positive effects of res judicata, deeming the former a matter of procedure and the latter a matter of substance.[10] Whatever the legal nature of res judicata, the controversy has resulted in a legal difficulty in determining the law applicable to it in international arbitration. It is challenging to decide on the type of law that applies and whether it is procedural or substantive. It is also difficult to give the correct legal description to res judicata, or more precisely, characterize or classify it, as a first step for using the conflict-of-laws approach to determine the national law that applies to the doctrine of res judicata in international arbitration.
- Unsuitability of Traditional Approaches
This section will discuss the unsuitability of the traditional conflict-of-laws approach, the comparative law approach, international law rules, and the recognition approach while dealing with the authority of res judicata of prior court judgments in subsequent international arbitration proceedings.
2.1. Traditional Conflict-of-Laws Approach
The national rules governing res judicata vary considerably among jurisdictions. The question of the proper law governing the authority of res judicata of prior national court judgments in international arbitration always comes to the fore. Which law will provide the criteria to verify that a prior judgment qualifies as res judicata? Which law will determine the res judicata effects of the prior judgment in international arbitration proceedings? According to which law will the arbitrators determine the scope of res judicata? The determination of conflict-of-laws rules will depend on the classification or characterization of res judicata as substantive or procedural. Although they are not binding, the ILA recommendations follow the French jurisprudence. According to Recommendation No. 5, the prior decision’s positive (conclusive) effect is substantive because it pertains more to the merits of the subsequent arbitration proceedings. On the contrary, the judgment’s negative (preclusive) effect is procedural.[11]
The view that the judgment’s positive effect pertains to the merits is justified because a final judgment creates a new substantive legal relationship between the parties. The tribunal in subsequent arbitration proceedings should apply the prior judgment while adjudicating the dispute before it. However, I cannot entirely agree with this view because I believe that the positive effect of res judicata may have a procedural or a substantive nature according to the nature of its content.
Generally, the positive effect of res judicata is based on recognizing the substantive decision contained in the prior court judgment. Whoever has obtained a judgment that has the authority of res judicata may bring a new action establishing the positive effect of the judgment to obtain certain judicial satisfaction in the new case by invoking the first judgment. In such a case, the positive effect of res judicata is deemed substantive.
By contrast, this effect can also be procedural if it ends the subsequent dispute without deciding on the merits. For example, suppose a party to an arbitration agreement has managed to obtain a judgment that this agreement is invalid. In that case, this party may invoke the positive effect of the authority of res judicata of this judgment when arguing that the arbitral tribunal does not have jurisdiction to rule on the matter. The argument that the arbitral tribunal does not have jurisdiction is not substantive.
In any event, the proper classification of res judicata as of procedure or substance remains controversial. Regarding international commercial arbitration, the final ILA report determined that the possible applicable laws to res judicata in subsequent arbitration proceedings are the law of the place of arbitration, the law of the place where the first judgment was rendered, and the law governing the contract.[12]
2.2. The Comparative Law Approach
Another possible approach is comparing different national laws to determine the generally accepted res judicata principles common to most States. Due to the absence of res judicata rules in national arbitration laws, these rules could be derived from national litigation laws.
Although the approach seems appropriate, the fact is that the doctrine of res judicata is not applied uniformly in domestic laws.[13] Many differences exist between common law and civil law countries and countries with the same legal system. Applying res judicata and determining its scope vary from one State to another. The doctrine’s scope is generally wider in common law countries than civil law countries, covering issue preclusion and claim preclusion. Furthermore, the requirements that must be met for applying the res judicata doctrine vary from one jurisdiction to another. Although it is widely accepted that there must be the identity of parties and questions, there are several divergences in the definitions of the notions of “identity of parties,” “identity of the question,” or “identity of the object,” and “identity of cause of action.” These notions are differently applied and interpreted among national laws, courts, and scholars. There are no generally accepted res judicata principles. Therefore, it is too difficult for any arbitral tribunal to adopt the comparative law approach to solve the res judicata questions that may arise before it.
2.3. International Law Rules
In international law, the res judicata doctrine resembles the doctrine in national laws. The res judicata doctrine was introduced into international law by operation of Article 38 (1)(c) of the ICJ Statute, as a principle accepted by all nations in foro domestico. This situation may envisage generally accepted res judicata rules in national laws. However, significant differences appear among national laws, particularly regarding the res judicata effects and the doctrine requirements. These significant differences among national jurisdictions also appear in international law. Although the principle is well established in international law, several uncertainties exist, particularly in those areas where there are divergences among national legislations.[14]
In addition to international courts, most of the arbitral tribunals that applied international law to res judicata were interstate tribunals and investment tribunals.[15] On the contrary, only a few international commercial tribunals relied on international law to answer res judicata questions.[16] International law principles governing res judicata provide answers to some essential questions. Most commentators agree that international law provides at least two basic criteria for applying res judicata, namely (a) identity of parties; (b) identity of question. However, it does not go further as it leaves the specifics of res judicata to jurisprudence.
Remarkably, the doctrine of res judicata is well-established in international law. However, because the doctrine originated in national laws and was passed on to international law, the significant differences among national laws negatively affect the doctrine’s application. Uncertainty, lack of consistency,[17] lack of uniformity, and lack of predictability are the main features of the doctrine in international law. This situation can be attributed to the significant divergences between national laws that have led to many controversies among international judges and arbitrators about the specifics of res judicata. The current position of the doctrine in international law does not remove the risk of violation and may negatively affect the credibility of international judgments and awards. Therefore, as explained, international law principles governing res judicata are not sufficient to be applied to prior national court judgments in international arbitration.
2.4. The Recognition Approach
It is generally considered a requirement for the application of res judicata that a foreign judgment must be capable of recognition in the State of the subsequent proceedings.[18] The purpose of this requirement is to avoid contradictory equally enforceable decisions and allow a party that can not use the foreign judgment for enforcement purposes in the relevant jurisdiction to pursue the case there to open up the possibility of local enforcement. The requirement is justified in private international litigation. The jurisdiction of State courts normally is not based solely on a choice of court agreement but on links with the State, such as a domicile or a place of business, that are sufficiently close to justify the jurisdiction of the State’s national courts.
However, the situation is different in international arbitration. The arbitral seat is chosen because neither of the parties has any link there. Whether a prior foreign court judgment is enforceable at the seat of arbitration is normally of little interest to the parties. Because there are no links with the arbitral seat, neither of the parties would need enforcement measures at the arbitral seat in the future. What is important is not whether the prior judgment can be recognized at the seat State but whether the foreign national court had jurisdiction to render such judgment. It may be argued that if the existence of an “arbitral legal order” is admitted, then the question of whether the prior judgment is capable of recognition in the State of the arbitral seat is of no importance to the arbitral legal order. The proper question is whether the prior foreign court judgment can be recognized in the arbitral legal order. This case would not happen if the foreign national court rendered the prior judgment in violation of an arbitration agreement.
From a practical perspective, even in recognizing the prior court judgment in question in the seat State, this does not necessarily entail the direct and automatic application of the rules governing res judicata rendered by national courts within the seat State. It is difficult in this case to determine the scope of res judicata of the foreign prior court judgment if the scope established by the law, where the prior judgment was made, differs from the scope specified by the law of the seat State. It will depend on the approach adopted at the seat State to resolve this issue.[19] Some States determine the scope of res judicata of a recognized foreign judgment under the law of the State in which it was rendered as it is.[20] Other States determine the scope of res judicata by comparing the law of the State of rendering and the law of the State of recognition as a prelude to applying the common denominator so that the scope of res judicata of a foreign judgment does not exceed the scope of res judicata of national judgments.[21] Thus, the abstract recognition of the foreign judgment in question does not imply that its authority of res judicata in the seat State is subject to that State’s law while determining the scope of its res judicata.
On the other hand, the assignment of an international arbitrator to examine the possibility of recognizing a foreign court judgment in the State of the seat of arbitration is unacceptable.[22] The international arbitrator is not a member of the judiciary of the seat State and is not supposed to be dependent on that State or others to be charged with deciding on this matter. I also believe that the arbitrator’s determination of this matter is in most cases beyond the scope of the arbitration agreement because the dispute over the fulfillment of the conditions for recognition of a prior court judgment in the seat State would not often be among the disputes covered by the arbitration agreement. Furthermore, disputes over the possibility of recognition cannot be settled by arbitration in most national laws. The parties to the dispute could not agree on the question of the ability of the foreign court judgment to be recognized in the seat State.
- Applying Res Judicata Before the “Arbitral Legal Order”
Three competing views about international arbitration constitute how an academic or a practitioner thinks about international arbitration. These views show what their proponents consider to be the source of legitimacy of international arbitration, namely the source of the arbitrator’s power to adjudicate.[23] The first view is “mono-localization.” It is a territorialist view that deems the law of the seat of the arbitration to be the sole source of legitimacy and validity of the arbitral process. According to this view, the arbitral seat is more than a location chosen for convenience or neutrality; it provides the exclusive basis for the power of the arbitrators to adjudicate and make an arbitral award, which will bear the “nationality” of the seat State. The courts of the arbitral seat are given wide authority to determine the extent of their involvement in the arbitral process. Proponents of that territorialist view consider the decisions rendered by those courts to be binding internationally. In this view, national legal orders are not transcended to international arbitration. Still, the source of validity and legitimacy of the arbitral process is concentrated in one national system, that of the seat of the arbitration.[24]
The second view is the “Westphalian” view or “multi-localization.” According to this view, each State decides the conditions under which it will consider an arbitral process legitimate and the resulting award capable of recognition. Because this vision legitimizes the arbitral process a posteriori, namely if an award meets the enforcing State’s criteria, the arbitral seat is not of significant importance.[25] This vision looks at the whole arbitral process through the result, namely that the award will be recognized in several States if it meets the prescribed conditions in those States. Thus, the seat does not matter so much; the place or places of enforcement of the award do.[26]
The third view, which truly constitutes the “transnational” view, depends on the “delocalization” of international arbitration and accepts that international arbitration transcends national legal orders.[27] It constitutes a transnational justice system, sometimes called the “arbitral legal order.” Importantly, national legal systems are not excluded from this arbitral legal order. Still, the arbitral process no longer depends on the specifics of a particular national law at the arbitral seat or elsewhere.[28] Instead, this view recognizes that the validity and legitimacy of international arbitration find their origins in the collectivity of national legal orders, as opposed to one or even several individual national legal systems. In other words, the arbitral legal order incorporates and reflects the trends stemming from national legal systems.[29]
Transcending or surpassing national legal orders is not equal to creating an arbitral legal order, characterized by a rejection of or opposition to national legal systems.[30] On the contrary, the transnational view of international arbitration embraces rather than rejects the laws originating from national legal systems, acknowledging and following trends developed collectively by national legal systems.[31] Thus, the transnational view recognizes an arbitral legal order that is founded on national legal systems while at the same time transcending any individual national legal order.[32]
Because I adopt the third view about international arbitration, transnational law should govern questions of res judicata arising from prior national court judgments before international arbitral tribunals. Professor Philip Jessup, later an ICJ judge, proposed the phrase “transnational law” and defined it to: “include all law which regulates actions or events that transcend national frontiers. Both public and private international law are included, as are other rules which do not wholly fit into such standard categories.”[33]
According to Jessup’s definition of transnational law, other rules that do not wholly fit into public and private international law are deemed transnational law rules. These rules include transnational conflict-of-laws rules that transcend national borders. Starting from this definition, I would suggest developing a transnational conflict-of-laws rule to the effect that the res judicata rules of the State where the prior court judgment was made should apply to res judicata questions in subsequent arbitration proceedings.
- The Need for A Transnational Conflict-of-Laws Rule
People, goods, services, money, ideas, and procedures readily cross borders in our globalized world. If such a system can be said to exist, the transnational legal system is highly decentralized. Res judicata is still organized primarily by national laws, and its rules differ considerably across nations, reflecting nations’ diverse policies and values about how to govern procedural activity. This situation raises a fundamental governance problem: when a procedural activity has connections to more than one nation, more than one national law may plausibly have the authority to govern that procedural activity. So, which nation’s laws should apply to the authority of res judicata of prior court judgments in subsequent international arbitration proceedings?
Generally speaking, there are three responses to this problem. International law tries to transcend national legal systems by creating a single body of international legal rules to govern transnational res judicata. Harmonization seeks convergence and ultimately uniformity of national laws, thereby reducing the salience of the “which law governs?” question but leaving application and enforcement of uniform laws to national legal institutions. The first solution is unsuitable as proven, and the second solution needs a global consensus that cannot be reached easily. Therefore, my conclusion provides a third response, namely conflict of laws. Conflict of laws embraces the role of national legal institutions in governing transnational activity (unlike international law’s impulse), and it accepts cross-national legal diversity (unlike harmonization’s impulse).[34]
Transnational law scholars Terence Halliday and Gregory Shaffer note that the transnational legal order concept includes conflict-of-laws. They define a transnational legal order as: “a collection of formalized legal norms and associated organizations and actors that authoritatively order the understanding and practice of law across national jurisdictions.”[35]
According to this definition, a transnational legal order (a) seeks to produce an order, (b) that regulates transnational activity, and (c) should have a legal form that is transnationally produced. Analyzing conflict-of-laws rules, it appears that they may satisfy all of these requirements, as they seek to produce an order that regulates a transnational activity. Also, they may be transnationally produced. Indeed, the primary legal forms for conflict-of-laws rules were produced at the national level; however, this does not mean that there are no transnational conflict-of-laws rules. For example, the transnational European conflict-of-laws rules are rooted in a series of EU regulations such as Insolvency Regulation No. 1346/2000, European Account Preservation Order Regulation No. 655/2014, Rome I Regulation No. 593/2008, Rome II Regulation No. 864/2007, Rome III Regulation No. 1259/2010, and others. The Latin American conflict-of-laws rules also constitute the outcome of a series of private international law conferences held by the Organization of American States (OAS).[36] In addition to the two regional sets of conflict-of-laws rules, there is at least one global set of conflict-of-laws rules with a narrow legal scope in addition to another incipient set for civil and commercial matters. Both sets have been produced at the transnational level by the Hague Conference on Private International Law.[37]
Based on the above, suggesting a global and transnational conflict-of-laws rule to govern the applicable law problem regarding the authority of res judicata of prior court judgments in international arbitration would be a proper solution. I want to mention here that this solution is not new to international arbitration. The suggested transnational conflict-of-laws rule will revert to applying the res judicata rules of the State where the prior court judgment was made to all res judicata questions in subsequent arbitration proceedings. However, it will transcend the national laws of the seat of arbitration regarding recognition of foreign judgments and res judicata public policy considerations.
We have seen that recognizing a foreign judgment in the seat State is not a condition for giving effect to the negative or positive effect of its authority of res judicata before international arbitrators. Even in the case of recognition of the foreign judgment, this does not necessarily entail the application of the rules governing the authority of res judicata of judgments rendered by national courts within the seat State. These rules cannot be directly and automatically applied to the foreign judgment in the seat State because it is difficult to determine the scope of the authority of res judicata in this case. Thus transcending recognition rules in the seat State is justified.
Also, it should be noted that the authority of res judicata of a prior court judgment relates only to the State’s domestic public policy and has nothing to do with public policy in any other State. The court that will hear the claim for annulling the arbitral award in the seat State must preserve the domestic public policy. It should not take account of public policy considerations in the foreign State in which the prior court judgment was made. Otherwise, the competent court is bound to preserve public policy in several foreign jurisdictions, and of course, this conclusion cannot be practically accepted. Thus transcending public policy considerations in the seat State is justified.
This solution is fair and justified because it deals with the problem abstractly and generally. Unlike any suggested substantive transnational res judicata rules, the suggested conflict-of-laws rule does not regulate the res judicata specifics by adopting the view of common or civil law countries regarding res judicata. Rather, it directs international arbitrators to apply the national res judicata rules of the State where the prior court judgment was made regardless of the view adopted by such rules. Global consensus on this solution can be easily reached because all the States will have their national res judicata rules equally applied if the prior court judgment in question was made in their territories. No preference is made to a particular legal system over the other.
Furthermore, the suggested solution bypasses the characterization problem. Whatever the legal nature of res judicata, the State’s law where the court judgment in question was made shall apply. The solution is justified because the prior national court judgment, as a litigation procedure, is subject to the law of the judge who pronounced it (lex fori). Res judicata, as an inherent characteristic of the national court judgment, should be subject also to the same lex fori through applying the suggested transnational conflict-of-laws rule without a need to characterize or classify res judicata.
In most cases, there is a connection between the parties to international arbitration and the jurisdiction where the prior court judgment was made. This connection could be domicile, place of business, nationality, place of contract execution, or anything else as the case may be. This connection envisages that the parties to the arbitration are aware of the national res judicata rules at that jurisdiction. Also, in several cases, the jurisdiction where the prior court judgment was made can be the jurisdiction where the arbitral award is expected to be executed. Thus, the suggested solution adheres to achieving the parties’ expectations regarding the authority of res judicata of the prior court judgment and may ensure smooth execution of the arbitral award in the jurisdiction where the prior court judgment was made.
It is conceivable that a party to an arbitration agreement may resort to State courts to obtain a decision in a dispute covered by an arbitration agreement in the belief that such agreement is non-existent, invalid, inapplicable, or expired. The defendant may invoke the arbitration agreement demanding that the State court be prevented from considering the existence of the arbitration agreement relying on the Competence-Competence principle. In such cases, the court cannot rule that the claim is inadmissible or that it does not have jurisdiction for an arbitration agreement on its own motion (sua sponte) because the argument based on an arbitration agreement does not relate to public policy. Thus, the defendant must make a plea for the existence of an arbitration agreement before submitting any application or defense. Otherwise, failure to make such a plea is considered an implicit waiver on the defendant’s part of its right to invoke the arbitration agreement.
The suggested solution considers the Competence-Competence principle in the mentioned cases. In such cases, the arbitral tribunal shall apply the national res judicata rules to the prior court judgment only if the State court that made the judgment is competent to rule on the existence and validity of the arbitration agreement according to the applicable national law. On the contrary, if the State court that issued the prior court judgment lacks jurisdiction to rule on the existence and validity of the arbitration agreement under the applicable national law, the State court judgment will not become res judicata.
Finally, it should be noted that although the conflicting national laws may differ in international investment arbitration from those in international commercial arbitration, all the aforementioned advantages of the proposed solution apply to the authority of res judicata of prior court judgments before international investment tribunals. However, the host State cannot invoke the authority of res judicata of a court judgment issued by its national courts to evade its international obligations.
5. Conclusion
The proper classification or characterization of res judicata as of procedure or substance remains controversial to the extent that the legal nature of res judicata is still unspecified. Also, it is too difficult for any arbitral tribunal to adopt the comparative law approach to solve the res judicata questions that may arise from prior court judgments. Many differences exist between common law and civil law countries and countries with the same legal system. These significant differences among national jurisdictions also appear in international law. Although the res judicata principle is well established in international law, several uncertainties exist, particularly in those areas where there are divergences among national legislations.
Furthermore, the recognition approach is also unacceptable because the assignment of an international arbitrator to examine the possibility of recognizing a foreign court judgment in the State of the seat of arbitration is incorrect. The international arbitrator is not a member of the judiciary of the seat State and is not supposed to be dependent on that State or others to be charged with deciding on this matter. I also believe that the arbitrator’s determination of this matter is in most cases beyond the scope of the arbitration agreement because the dispute over the fulfillment of the conditions for recognition of a prior court judgment in the seat State would not often be among the disputes covered by the arbitration agreement.
Other rules that do not wholly fit into public and private international law are deemed transnational law rules. These rules include transnational conflict-of-laws rules that transcend national borders and embrace the role of national legal institutions in governing transnational activity. It also accepts cross-national legal diversity. Starting from this point, I would suggest developing a transnational conflict-of-laws rule to the effect that the res judicata rules of the State where the prior court judgment was made should apply to res judicata questions in subsequent arbitration proceedings.
In light of the above, I may now attempt to formulate this transnational conflict-of-laws rule for international arbitrators to help them determine the res judicata effects of prior national court judgments in international arbitration proceedings. The recommended formulation could be: “The tribunal shall decide a dispute concerning any question that pertains to the authority of res judicata of a prior national court judgment under such rules of law as may be agreed by the parties. In the absence of such agreement, the tribunal shall apply the law of the State where the prior court judgment was made.”
The suggested conflict-of-laws rule provides a one-size-fits-all solution to the problem. On the one hand, it can be applied in international commercial arbitration and international investment arbitration. On the other hand, it suits all types of prior national court judgments, including judgments with relative and absolute res judicata effects. It does not need the far-reaching global consensus on the particulars of res judicata. Also, it will enable the parties to any international arbitration proceedings to predict the applicable res judicata rules to any invoked prior court judgment, thus meeting the parties’ expectations.
6. Conflict of Interest
The author states that there is no conflict of interest.
7. Acknowledgment
I acknowledge all the support from Euclid’s International Faculty Coordinator and Oversight Council Chairman, Prof. Laurent Cleenewerck, for providing me with the opportunity to pursue my Ph.D. at Euclid. Also, I would like to sincerely thank my supervisor, Prof. Ludovic Chan-Tung, for his excellent guidance and support during writing the dissertation from which this paper derived.
References
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[1]Art. 34(2)(b)(ii) of the UNCITRAL Model Law on International Commercial Arbitration provides that an arbitral award may be set aside by the competent court if the award is in conflict with the public policy.
[2] Art. V(2)(b) of The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards provides that recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that the recognition or enforcement of the award would be contrary to the public policy of that country.
[3] For example Art. 58(2)(a) of the Egyptian Arbitration Law No. 27 of 1994 provides that an order for execution of the arbitral award shall not be granted except after having ascertained that the award does not contradict a judgment previously rendered by the Egyptian courts on the subject matter in dispute.
[4] German Derbushev, ‘Res Judicata and Arbitral Awards’ (LL.M. diss., Budapest, Central European University, 2019), 53.
[5] Dionisio Anzilotti, ‘The Dissenting Opinion of Judge Anzilotti in the Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów)’ (PCIJ Series A. No 13, 16 December 1927), 27.
[6] Silja Schaffstein, ‘The Doctrine of Res Judicata before International Arbitral Tribunals.’ (Ph.D. diss., Switzerland, Queen Mary University of London, University of Geneva, 2012), 94.
[7] Derbushev, ‘Res Judicata and Arbitral Awards’, 11.
[8]‘ILA Interim Report on Res Judicata and Arbitration’ (Berlin: International Law Association, 2004), 26.
[9] Christopher Guest, Carl Zeiss Stiftung v Rayner and Keeler Ltd (House of Lords 18 May 1966).
[10] Schaffstein, ‘The Doctrine of Res Judicata before International Arbitral Tribunals.’, 168.
[11] ‘ILA Final Report on Res Judicata and Arbitration’ (Toronto: International Law Association, 2006), 66.
[12] ‘ILA Final Report on Res Judicata and Arbitration’, para. 27.
[13] ‘Comparative Table: The Effect of Recognition of Judgments’ (British Institute of International and Comparative Law), accessed 6 December 2021, https://www.biicl.org/files/3479_comp_table_-_effect_of_judgments_questionnaire_without_scotland.pdf.
[14] Schaffstein, ‘The Doctrine of Res Judicata before International Arbitral Tribunals.’, 93.
[15] Derbushev, ‘Res Judicata and Arbitral Awards’, 54.
[16] Derbushev, 54.
[17] Yuval Shany, The Competing Jurisdictions of International Courts and Tribunals (Oxford, 2003), 253 et seq.
[18] Nathalie Voser, and Julie Raneda, ‘Recent Developments on the Doctrine of Res Judicata in International Arbitration from a Swiss Perspective: A Call for a Harmonized Solution’, ASA BULLETIN 33, no. 4 (December 2015): 742–79.
[19] Philippe Hovaguimian, ‘The Res Judicata Effects of Foreign Judgments in Post-Award Proceedings: To Bind or Not to Bind?’, Journal of International Arbitration, Kluwer Law International 34, no. 1 (2017): 85.
[20] Hovaguimian, 85.
[21] Hovaguimian, 85.
[22] See, for example, the Decision of the Swiss Federal Tribunal 140 III 278 [4A_508/2013] dated 27 May 2014 (Swiss Federal Tribunal 27 May 2014).
[23] Emmanuel Gaillard, ‘Transcending National Legal Orders for International Arbitration’, in Breakout Session C1 (International Arbitration: The Coming of a New Age, Singapore: International Council For Commercial Arbitration, 2012), 372, https://cdn.arbitration-icca.org/s3fs-public/document/media_document/gaillard_20131001_eg_book-congress-series-no-17_transcending-national-legal-order.pdf.
[24] Gaillard, 372.
[25] Gaillard, 372.
[26] Arthur Rovine, ‘Contemporary Issues in International Arbitration and Mediation’, Fordham Papers, 2009, 307.
[27] Gaillard, ‘Transcending National Legal Orders for International Arbitration’, 373.
[28] Gaillard, 373.
[29] Gaillard, 373.
[30] Gaillard, 373.
[31] Gaillard, 373.
[32] Gaillard, 373.
[33] Philip Jessup, Transnational Law (New Heaven, Yale University Press, 1956), 2.
[34] Christopher Whytock, ‘Conflict of Laws, Global Governance, and Transnational Legal Order’, UC Irvine Journal of International, Transnational, and Comparative Law 1, no. 1 (1 September 2016): 118, https://scholarship.law.uci.edu/ucijil/vol1/iss1/6.
[35] Terence Halliday and Gregory Shaffer, Transnational Legal Orders, Cambridge Studies in Law and Society (Cambridge University Press, 2015), 5.
[36] Whytock, ‘Conflict of Laws, Global Governance, and Transnational Legal Order’, 127.
[37] Whytock, 131.
