ILA Interim Report on Res Judicata and Arbitration

Abstract

The Committee was mandated to study and report on lis pendens and res judicata in arbitration. This report is the Committee’s first under that mandate, and it is an interim report on res judicata .1 This project was commenced under the Chairmanship of Professor Pierre Mayer in 2002, and it has been continued under the Chairmanship of Professor Filip De Ly. The application of res judicata, and various drafts of this report, have been discussed at meetings of the Committee in Paris (January 2002), New Delhi (April 2002), Paris (May 2003), San Francisco (September 2003), London (December 2003) and Paris (March 2004).2 After a conceptual introduction, this report will attempt to give an overview of res judicata from the perspective of comparative domestic law and public international law. Thereafter, the doctrine of res judicata will be discussed and analysed from an international commercial arbitration focus. The application of res judicata in international arbitration gives rise to a number of complex and apparently unresolved issues, which are identified in Part VII and which need further analysis and discussion. The Committee’s conclusions will be included in a subsequent final report. ### (a) The Doctrine of Res Judicata The term res judicata refers to the general doctrine that an earlier and final adjudication by a court or arbitration tribunal is conclusive in subsequent proceedings involving the same subject matter or relief, the same legal grounds and the same parties (the so-called ‘triple-identity’ criteria). Although terminology may differ as between jurisdictions, this report will use the expression res judicata in a wide sense, subject to further definitional clarification in the Committee’s final report. The res judicata doctrine has existed for many centuries and in different legal cultures. It was amongst the principles of the Roman jurists,3 and it was also recognised in ancient Hindu texts.4 It is …