Recent Developments on the Doctrine of Res Judicata in International Arbitration from a Swiss Perspective: A Call for a Harmonized Solution

Abstract

The Swiss Federal Tribunal has recently rendered three decisions addressing the issue of res judicata in the context of international arbitration, opening the door to possible developments of the doctrine of res judicata as applied in international arbitrations seated in Switzerland. This article elaborates on the Swiss Federal Tribunal's latest decisions on the topic and endeavors to challenge some of the core principles of the doctrine of res judicata as developed in the Swiss practice. The authors propose that arbitral tribunals apply the provisions of the lex arbitri (instead of Article II(3) New York Convention) when examining the requirement of recognition of a foreign state court judgment where an exceptio arbitri was raised in the first proceedings. The article also puts in question one of the key holdings of the Swiss Federal Tribunal, i.e. the application of the Swiss lex fori to the issue of res judicata by an arbitral tribunal seated in Switzerland. Rather than the strict principles of res judicata as developed by the Swiss Federal Tribunal, the authors suggest that arbitral tribunals seated in Switzerland should use their procedural discretion and develop autonomous rules which are more generally recognized and thereby seek to define the core content of the principle of res judicata. In doing so, and in the absence of internationally applicable rules, arbitral tribunals can promote harmonized principles of res judicata better designed for international arbitration than particular national rules.