Claim Preclusion Research Articles

A estabilização da tutela antecipada antecedente e a fazenda pública

The article aims to examine the institute of the stabilization of the interlocutory relief required in a previous character and its application to the Nacional Treasury. In the first part, the subject is situated with the advent of the new Code. In the second part, the micro-system of the legal remedy is treated by the monitory technique. In the third part, the distinction between stabilization and the claim preclusion is addressed. In the fourth, the doctrinal understanding of the matter is analyzed. In the fifth, judicial decisions on the subject are indicated. In the sixth, the conclusions obtained are highlighted.

Res Judicata in International Arbitration: Choice of Law, Competence & Jurisdictional Court Decisions

Given the twin goals of finality and efficiency, the doctrine of res judicata has come to be applied, although less frequently, in the international arbitration context as well. However, being largely perceived as a proverbial ‘twilight issue’ in international arbitration, its application is fraught with uncertainties and inconsistencies. Amongst the more compelling concerns regarding the subject matter, this Article tackles the ambiguities around the choice of law analysis for preclusion standards; the doubts regarding the arbitral tribunal’s kompetenz-kompetenz to address the issue; and the peculiar nature of jurisdictional court decisions and its res judicata effect in subsequent arbitral proceedings. Rarely, if ever, does the lex arbitri shed light on the precise standards of preclusion to be applied in a particular case. Instead, the choice of law analysis by arbitral tribunals are guided by a fluid balancing act between varying degrees of private rights and public interests. While the The International Law Association (ILA) Recommendations (Resolution No. 1/2006) do come close to a purported international standard, its limited acceptability within the community and lean adoptability across jurisdictions, brings to the fore the uncertainties attached to the doctrine itself. Confusion further ensues when the authority of the tribunal to decide on its own jurisdiction is brought into question on confronting the defense of res judicata. While the New York Convention’s mandate of recognition of awards empowers the Courts to afford res judicata effect to a prior adjudication, the same conflicts with the arbitral tribunal’s own competence to address arguably procedural arbitrability issues such as this. These concerns amplify manifold when an arbitral tribunal encounters a prior Court’s decision regarding the tribunal’s jurisdiction, including the question of non-arbitrability of the disputed claim. In the absence of exacting standards and principles to deal with any of these issues, different tribunals have been discharging their own brand of the doctrine’s broad interpretation. This Article expounds the existing literature on the subject, and thereafter, attempts to analyse each of these complex and controversial issues to better equip practitioners and arbitrators when faced with such concerns; at least until universal conformity is achieved through promulgations bordering a truly international standard. Res Judicata, Claim Preclusion, Choice-of-Law, Kompetenz-Kompetenz, Jurisdictional Decisions

Crítica científica de "Redefinindo o trânsito em julgado a partir da soberania dos veredictos: a coisa julgada parcial no tribunal do júri”

Trata-se de crítica científica ao artigo “Redefinindo o trânsito em julgado a partir da soberania dos veredictos”, em que se defende a execução imediata da pena aos condenados pelo Tribunal do Júri. A partir da delimitação do conceito de democracia no direito processual penal, a crítica aborda os problemas da inversão ideológica do discurso em torno das garantias processuais que, na hipótese do artigo analisado, conduziu ao uso argumentativo da soberania dos veredictos para fins de ampliação do poder penal. Além disso, a crítica trabalha o conceito de culpabilidade jurídica da presunção de inocência, categoria chave para compreensão do estatuto normativo dos recursos e da impossibilidade de execução imediata ou antecipada da pena, antes do trânsito em julgado da sentença penal condenatória.

Redefinindo o trânsito em julgado a partir da soberania dos veredictos: a coisa julgada parcial no tribunal do júri

O Tribunal do Júri se apresentou na história como importante instrumento de consolidação de processos democráticos, por se mostrar uma tribuna à qual o povo é convocado para discutir e julgar diretamente fatos ocorridos em sua comunidade. Com a intenção de fortalecer a instituição após um período ditatorial, o constituinte brasileiro resgatou a soberania dos veredictos e ergueu a instituição e suas características ao patamar de cláusula pétrea fundamental. A partir de uma proposta exploratória, de análise qualitativa, o presente trabalho pretende investigar de que forma a soberania dos vereditos impacta no procedimento legal dos crimes dolosos contra a vida a ponto de redefinir o momento inicial de cumprimento da pena, eventualmente justificando hipóteses de execução da pena na primeira, na segunda instância ou após o término definitivo do processo. Discutir-se-á a possibilidade de formação de coisa julgada parcial em relação à culpa do réu ante a natureza subjetivamente complexa da sentença condenatória do procedimento do júri.

Realization of res judicata principle in civil proceedings: the experience of foreign countries


 The article is devoted to the analysis of res judicata as an essential element of the legal certainty. Res judicata is considered to be one of the main guaranties of the legal certainty principle in civil procedure which allows a stability of the court decisions in democratic society and increase the public confidence to judiciary. 
 The author analyzes national characteristics of the realization of the principle of res judicata in civil procedure of foreign countries. The author explores the preclusion effect of court decisions, highlighting two effects of the res judicata principle: positive and negative one. The negative effect of res judicata is aimed at preventing the re-consideration of identical disputes between the parties if the dispute has already been resolved by the court, in turn, the positive effect of res judicata allows the parties to refer to circumstances that have already been established by a court decision in the dispute between them, in new proceedings, where they are involved.
 It is concluded that there are significant differences in the understanding of this principle in common law and civil law legal systems. The common law countries have a broad understanding of the res judicata principle, which includes positive and negative effects, and is implemented through such institutions as the claim preclusion and the issue preclusion. Civil law countries follow a narrow approach to understanding of res judicata principle, which is limited only by the negative effect and is reflected in the claim preclusion, which blocks filing an identical claim if there is a final court decision on the dispute between the parties.
 In common law jurisdiction there is a wider conception of the “claim”, according to which it is understood in the context of entire dispute and comprise all claims based on the legal relationship between the parties, whether or not they were the subject of court proceedings. At the same time in civil law countries identity of the claims can be notified with the help of the triple identity test, which contains the identity of the subject of the claim, the identity of the cause of action and the identity of the parties of the claim.

Inter Partes Review Estoppel: The Patent Law Tug-of-War

Inter partes review estoppel has violated the principles of traditional res judicata since its inception. For the first several years of its life, IPR estoppel served to preserve a petitioner’s ability to harass patent owners and repetitively attempt to invalidate patents. Following SAS in 2018, IPR estoppel began to reverse course. The courts that once were allowing patent owner abuse are now limiting it with a broad application of IPR estoppel. However, this broad application of IPR estoppel is a soft claim preclusion that allows many exceptions behind the principles of res judicata. Furthermore, the PTAB allows petitioners to file numerous IPR petitions and does not enforce estoppel until a final written decision is issued to which the petitioner is a real party in interest. This practice likewise allows the harassment of patent owners and violates the principles of res judicata. To resolve the inter partes review estoppel problems, Congress must reintroduce the principles of res judicata with exceptions only where patent litigation absolutely requires it. Such an analysis leads to the conclusion that by enacting only the petitioner standing requirement and the estoppel provisions of the STRONGER Patents Act of 2019, IPR estoppel would achieve a balance equitable to patent owners and petitioners alike. These two provisions do well to support the principles of res judicata, grant adequate leeway where patent litigation requires it, yet still provide claim preclusion strong enough to avoid abuse. The doctrine of res judicata does not need reinventing for 21st century patent litigation—it merely needs reintegration.

The Current Status of the Preclusive Effects of Judgments in the Federal Court System of the United States of America

Res judicata law in the United States of America has a long, extensive and complex history. The aim of this paper is to provide at least a working summary of some of the most important aspects of the current res judicata law in the federal court system of the United States. The flexible discovery, pleading and joinder rules have given rise to more expansive res judicata law. The paper will discuss what exactly constitutes a judgment; how the federal courts deal with finality of judgments in multiple party and multiple claim cases; the final judgment rule; the form of judgments; the methods to enter judgments and significance of entry of judgments; together with a detailed overview of the doctrine of res judicata itself, including the separate, but related twin doctrines of claim preclusion and issue preclusion.

Res judicata of criminal judgement before the civil judge: A comparative between Jordanian legislation and Syrian legislation

This research dealt with the claim preclusion “ res judicata” of criminal judgement before the civil judge. As a comparative study between the Jordanian legislation and the Syrian legislation. It is known that penal legislation has decided the rule of res judicata against the civil case before the civil court. In the case of a civil case, a criminal judgment may be issued in the criminal proceedings, and the criminal judgment has res judicata that the civil court is obliged to respect it and not to judge contrary to final decision, whether the issued judgment was acquitted or the conviction as long as the civil action was not finalized . This study aims at discussing this subject in comparison between the Jordanian penal legislation and the Syrian penal legislation and to try to stand on the similarities and differences between them on this significant issue. The researcher used the descriptive approach by extrapolating the texts governing the title of the study in the legislation which are the Syrian legislation and the Jordanian legislation. The researcher used the analytical method by using the logical analysis of the texts of the legislations in order to extract the rule of matters in which has no specific text, issues that are subject to ambiguity and disagreement through multiple jurisprudential readings and legislative texts. The study was divided into sections ;an introduction and two topics. The first topic: What is res judicata “claim preclusion”? The second topic: The implications of the res judicata of the criminal judgment before the civil judiciary. The study reached many conclusions and recommendations, including: Authenticity is a kind of refrain enjoyed by the ruling, which is considered by virtue of including a presumption that does not accept the contrary decision in terms of its form and subject, it is the title of the truth, and the most important direct effects of res judicata before the civil judiciary is the following: It is not permissible to look into the issue of criminal judgment again before the civil court and it is not permissible to re-examine the subject of a complaint to give a check that does not receive a balance before the civil court after the criminal court decided by a final penalty. Key words: Res judicata , criminal judgement, authenticity of criminal judgment DOI: 10.7176/JLPG/88-27 Publication date: August 31st 2019

Res Judicata in Civil, Economic and Criminal Proceedings in Ukraine

The need to improve the efficiency of the implementation of the tasks of the judiciary, which is associated with the improvement of evidentiary activities, the saving of procedural time, as well as the use of res judicata (also known as claim preclusion) in the process of proving, determines the relevance of the analysis of the use of res judicata in civil, economic and criminal proceedings in Ukraine. The purpose of the article is to study the legal category of ‘res judicata’ (claim preclusion), problems of the theory and practice of the application of claim preclusion and its use in the exercise of evidentiary activity in civil, economic and criminal process, as well as the study of the limits of the application of claim preclusion. The methodological base is comprised of such methods as the dialectical, the systematic analysis of legal norms, the comparative legal, and the logical-normative method. The study of the res judicata requires the implementation of mechanisms that ensure the impartiality of justice and the unity of the case law, providing analysis of the case law and common standards for the implementation of legal proceedings, the purpose of which is to protect the violated rights and freedoms of natural and legal persons, to improve the legislation in the direction of harmonization of normative-legal acts of national legislation with international standards.

Prepared Testimony of Professor Michael T. Morley Before the U.S. House of Representatives Judiciary Committee, Subcommittee on Courts, Intellectual Property and the Internet

This is the written statement I submitted in conjunction with my testimony before the U.S. House Judiciary Committee's Subcommittee on Courts, Intellectual Property, and the Internet concerning nationwide injunctions. The statement begins by distinguishing among various types of nationwide injunctions. It goes on to emphasize the need to distinguish between class actions and non-class cases. In Rule 23(b)(2) class actions, the main issue is the proper geographic scope of the plaintiff class; courts generally should refuse to certify nationwide classes. Nationwide classes are largely inconsistent with the decentralized structure of the federal judiciary and limited geographic responsibility of each district court. In non-class cases, in contrast, the primary issue is the scope of the injunction itself. I argue that courts should generally issue Plaintiff-Oriented which prohibit the Government defendant from enforcing the challenged statute, regulation, executive order, or other federal policy solely to the particular plaintiffs in the case. They should typically decline to issue nationwide that completely prohibit the Government defendants from enforcing the challenged legal provision against anyone, anywhere in the nation. Defendant-Oriented Injunctions raise troubling concerns relating to Article III standing, Due Process, asymmetric claim preclusion, Rule 23, and the limited geographic jurisdiction of individual district courts. The statement concludes by offering brief legislative proposals to address these issues.

The claim for nullity, annulment, revocation in the civil procedure - focused on the claim preclusion(Res Judicata) -

The claim for nullity, annulment, revocation in the civil procedure - focused on the claim preclusion(Res Judicata) -

'Domesticating' the New York Convention: the Impact of the Federal Arbitration Act

International arbitration is a world of multiple interfaces among legal orders, marked by significant tensions at specific pressure points. It is the purpose of much, if not most scholarship in international arbitration to seek to resolve such tensions. In this article the author deals with a set of pressure points that has recently been brought to the surface in a particularly comprehensive and systemic manner, in the context of the Restatement of the US Law of International Commercial Arbitration: the clash between, on the one hand, the New York Convention and thus the international model of international arbitration and, on the other hand, the basic US federal legislation on international commercial arbitration and thus the US model on international arbitration. This clash, the author shows, becomes manifest with regard to issues including: awards made in the United States but whose enforcement is nevertheless governed by the New York Convention; the preclusive effects for other courts of a court’s decision on the scope of an arbitration agreement; the common law notion of collateral estoppel (issue preclusion—preclusive effects for other courts and tribunals of factual and legal findings) as opposed to the Convention’s focus on res judicata (claim preclusion); the application of forum non conveniens in actions to enforce an award; treating interim measures as awards; and the role of state public policy as opposed to federal public policy.

Keeping Indian Claims Commission Decisions in Their Place: Assessing the Preclusive Effect of ICC in Litigation over Off-Reservation Treaty Fishing Rights

The article addresses the tension between Indian law and the litigation finality doctrines of claim preclusion and issue preclusion. We argue that some litigants and courts have improperly resolved this tension, applying preclusion too freely and thus preventing Indian tribes from pursuing valid claims. Between 1946 and 1978, many Native American tribes submitted claims against the US government to the Indian Claims Commission, a special court created by Congress to allow the tribes to seek compensation for land takings, broken treaties, and other uncompensated wrongs. In spite of the Commission's resolution of hundreds of claims and congressional appropriation of millions of dollars to pay the ICC awards, tribal claims did not end when Congress terminated the ICC in 1978. Tribes continue to pursue claims against the federal government, states, and private parties. Often, the opposing parties meet tribal claims with a preclusion defense, arguing that if a tribe received an ICC award, further claims are precluded - either by the common law doctrines of res judicata (claim preclusion) and collateral estoppel (issue preclusion), or by statutory preclusion in the terms of the ICC statute itself. These arguments cannot be resolved by a simple one bite of the apple analysis. A more nuanced approach is required that looks carefully at the limited scope and purpose of the ICC process. Using the example of tribes with off-reservation treaty fishing rights, this article demonstrates the proper use of preclusion in the context of Indian Claims Commission decisions and cautions against overly-broad analysis that elevates finality over legitimate, unfulfilled tribal claims.

Second Circuit 1999-2000 Res Judicata Developments

During the 1999-2000 survey year the United States Court of Appeals for the Second Circuit has issued at least twenty-five res judicata decisions, expanding the doctrines of claim preclusion and issue preclusion. The court liberally applied claim preclusion but infrequently applied the more expansive doctrine of issue preclusion. Also, the Second Circuit released over fifty unpublished decisions that affect the rights of pro se litigants appearing before the court. These decisions demonstrate the court's immense respect for the doctrine of res judicata. Similarly, the decisions illustrate the extent to which the court relies on the doctrine to achieve finality, to prevent inconsistent judgments and to allocate judicial resources. This survey article will review some of the court's significant decisions and comment on future trends for application of the law of res judicata in the Second Circuit.

Claim Preclusion in Modern Latent Disease Cases: A Proposal for Allowing Second Suits

Claim Preclusion in Modern Latent Disease Cases: A Proposal for Allowing Second Suits

Interagency Privity and Claim Preclusion

Federal administrative agencies play an important role in national policy,' directing most of the day-to-day activities of the federal government. The agencies pursue their separate tasks with a good deal of autonomy, and yet the lines dividing their spheres of activity are often unclear. When more than one agency pursues similar goals through adjudication, the result may be duplicative litigation. The doctrine of preclusion is the procedural device generally invoked to prevent such duplication. Preclusion can take two forms: issue preclusion, which prevents a party from relitigating issues it has already fully litigated, and claim preclusion, which prevents a party from relitigating a claim when it participated in a prior adjudication of these claims or when it was in privity with a party to that litigation. It is this latter form of preclusion that presents a special problem for government agencies. In a bureaucracy as vast as the federal government, strict application of claim preclusion could prevent agencies from pursuing important policy goals. For example, the Occupational Safety and Health Administration (OSHA) and the Environmental Protection Agency (EPA) both may regulate the discharge of toxic chemicals from a particular factory; both may need to go to court to enforce their regulations. But if for some reason OSHA completes its litigation against the factory before the EPA, subsequent litigation by the EPA might be precluded. In cases where agencies have such overlapping responsibilities and where one agency's litigation could preclude legal action by the other, courts have been unable to develop a workable test to balance the agency's interest in litigating its claim against the interest of the judicial system and parties in preventing duplicative suits.