Res Judicata- A Boon or A Bane for International Investment Tribunals?

Abstract

The issue of Res Judicata has long been debated within the international investment law community. This debate has revolved around the proper use of this common law doctrine which gives a judgment, an award (which is considered equivalent to a judgment of a court), a final, binding and non-triable effect. By non-triable, we mean that a same matter, with a same parties to dispute, with same factual backgrounds and with same prayers for relief cannot be re-tried in a court of law or tribunal again. This powers enshrined under this doctrine comes from the notion of a another doctrine i.e. doctrine of precedents. Doctrine of precedents does the same job as the doctrine of res judicata in a way that precedents can be considered a post judgement effect of res judicata. This paper however, won’t be dealing with the issue of doctrine of precedents in international investment law, which is an altogether entire different subject and an issue. Nonetheless, the author is going to discuss the current and outgrowing effects of res judicata and its application by international investment tribunals. Like in any common law jurisdiction, res judicata has become a part of countries civil procedure, it has also gained universal acceptance of being part of general principles of international law, both public as well as private. The author will further elucidate the applicability and non-applicability of res judicata with the reference to famous Lauder and CME case and its case effects in international investment regime. Finally, as to the authors opinion too, the author will conclude by highlighting few important and relatively recent investment tribunal award which states that res judicata is important for achieving coherence, consistency and predictability, all of which forms a part of current criticism of the international investment regime.