Preclusive Effect Research Articles

How to assess the res judicata effects of international arbitral awards: giving concreteness to an autonomous approach

Abstract The article seeks to demonstrate the inadequacy of the ‘conflict-of-laws’ approach to determine the res judicata effects of international arbitral awards. Demystifying the erroneous assumption that the rules on the scope of res judicata are per se a matter of public policy, the authors defend an ‘autonomous’ approach, which dispenses with domestic law and confers broad preclusive effects on awards, with a view to avoiding the re-litigation of a dispute that is, in essence, the same as one already decided by a prior award. The legal bases for such an approach are party autonomy and the inherent powers of arbitrators. Building on the ILA Recommendations and recording the evolution of the conception of res judicata in certain civil law jurisdictions, the article proposes the elements of an arbitration-specific notion of the subject matter scope of the res judicata of awards with respect to issues of substantive law, addressing the situation of the res judicata of an award relied upon in further arbitral proceedings. The authors urge soft-law-making bodies and arbitral institutions to tackle arbitral res judicata proactively and contribute to the development of rules to give secure guidance to arbitrators and courts in determining its proper contours.

중재판정의 기판력의 범위

Arbitral awards have preclusive effects, as well as national court judgments under res judicata principle, and this is stipulated in Arbitration Act of Korea. The extent of preclusive effect of court judgments, however, differs from country to country, especially between civil law jurisdictions and common law jurisdictions. The civil law jurisdictions usually preclude only the claims of the previous lawsuit to be relitigated, whereas the common law jurisdictions preclude both claims and issues of the previous lawsuit.
 Although preclusive effects of arbitral awards often have international character, there is no consensus in the extent of the effects. Each jurisdiction applies its own preclusive effect of court judgment to its arbitral awards.
 Recently KCAB in revision of its international arbitration rules is considering expansion of preclusive effect to the issues of the awards. However, in present situation where arbitral preclusive effect is determined according to the effect of court judgment in each country, this expansion could break the consistency between Arbitration Act and the Arbitration Rules.

Finality, Res Judicata, and Counter-Epistemic Values in Civil Proceedings

Abstract This article proposes a perspective on res judicata whereby it can be approached as an epistemic barrier to the fact-finding process in subsequent civil proceedings. Being a well-recognized principle, it is enshrined as a strong and respected legal doctrine, recognized in every contemporary modern justice system, allowing courts to apply it confidently and commonly. Res judicata impedes the reiteration of litigation among the same parties on the same topic, and, in so doing, it will not allow further discussion on the issues adjudicated, notwithstanding the fact that new and better evidence might come to be available, and consequently result in a more accurate judgment. Thus, the private and public rationale for res judicata and its preclusive effects can be defined as a non-epistemic value of the public policy that diverts from the truth-seeking purpose of the judicial process toward finality and conclusiveness.

I. L’irripetibilità del processo criminale nell’esperienza giuridica romana

Summary The prohibition of double trial for one and the same fact is a principle that we find theorized and applied in the legal experience of the Romans above all in the field of civil procedural law. Hence modern Romanistic legal science concentrated on this area of law. There are only few specific studies devoted to this subject with reference to criminal procedural law. The problem deserves to be taken up and studied in depth. First of all the author defines the scope of the preclusive effects produced by the judgement as it results from an exhaustive analysis of the epigraphic Lex repetundarum (linn. 1–4, 5, 56). On a more general level, the sources show that the principle of the non-repeatability of criminal prosecutions found substantial application both in the late republican and imperial ages, albeit with the limits and the exceptions that the author highlights. In addition to jurisprudence, the subject of the unrepeatability of the trial lent itself to being dealt with in schools of rhetoric.

Res judicata, finality and legal effect of the judgment: interrelation between concepts

The article focuses on making distinction between the concepts of res judicata, finality and legal effect of judgments, as these terms are often used in legal literature and case law as interchangeable categories, sometimes as components of each other, sometimes as necessary conditions or consequences of each other.
 The article points out that the concept of ‘finality’ is often used in two contexts. The first one focuses on the properties of a court decision as an act of judiciary, which completes the resolution of a particular cause of action or determination of a particular issue in a specific proceeding, i.e. it is a matter of finality of the judgment in the same proceeding in which it was issued. Thus, finality is one of the preconditions for res judicata to be applied as the principle in subsequent court proceedings, but not the principle itself. The second context of use of ‘finality’ concerns the effect of a judgment in other proceedings and with this meaning ‘respect for finality’ is synonymous with ‘respect for res judicata’. The author also draws attention to the fact that the term ‘res judicata’ is used in two ways: either to denote the known principle which takes effect in the rules on legal consequences of a final judgment taken in one proceeding, in subsequent proceedings; or to indicate the final judgment, which affects the relationships of the parties beyond the court case in which it was adopted, i.e. establishes legal certainty for the parties in their relationships and, accordingly, may create the above-mentioned preclusive effect in other court proceedings. The article also substantiates the thesis that the category of ‘legal effect’ with respect to a judgment, although inherited from Soviet doctrine, still remains practically useful. It does not confront or compete with res judicata, and therefore remains appropriate to be used, above all, in order to specify a moment in time when the judgment becomes final and binding and, in some cases becomes res judicata.

Res judicata and related doctrines of finality of judgments: comparative aspect

The article contains the results of the analysis of the development of res judicata doctrine into a multicomponent doctrine with different meaning in different legal systems of the world, as well as points out the difficulties of distinguishing this doctrine among other doctrines that have claim preclusive or issue preclusive effects. The article focuses on the broad and narrow meaning of res judicata, procedural links that this principle may have with the application of the estoppel rule in court proceedings. The article pays special attention to three doctrines related to res judicata: full faith and credit; election of remedies and law of the case doctrines. The doctrine of full faith and credit in the US procedural law is viewed as a branch of res judicata. In contrast to res judicata, the doctrine of election of remedies is largely based not on respect for the finality of the judgment, but on the principle of estoppel and thus might be applied in order to bar a subsequent cause of action containing claims that are inconsistent with remedies prayed for in the already considered cause of action, rather than to bar the relitigation of already litigated case. The law of the case doctrine, as it has been developed in the US procedural law and adopted in some other countries, in particular India, is related to res judicata in that both are aimed at ensuring legal certainty and the stability of court judgments. However, unlike res judicata, the law of the case doctrine to some degree allows the discretion of the court, or rather its application is discretion based, it is purely procedural and concerns the stability and consistency of the court's rulings in the same case, rather than the conclusive effect of the final judgment for subsequent proceedings. The article argues that these doctrines, especially the election of remedies doctrine and the law of the case doctrine or their elements can be used to address the problems of fairness and consistency of judgments in procedural law.

The Ne Bis In Idem Principle in Tax Law: European and Italian Frameworks

In the national and supranational legal area, the need to address the ne bis in idem principle is justified by the growing interest aroused by the most recent pronouncements of the European Courts. The principle prohibits anyone who has already been acquitted or convicted in a previous trial from being tried again. Moreover, it has become a fundamental right enshrined in the European Convention on Human Rights and the Charter of Fundamental Rights of the EU. The interest in the issue also derives from the need to understand whether the approach of the Italian legal system – or any other similar national order – can be considered compliant with European tax law and case law, based on the definitions of criminal and tax offences. Thus, talking about a European legal space means rethinking the idea of punitive power in a dimension that tends to be ‘solidarity-based’. The State can consider itself impervious to repressive demands from outside but is instead called to cooperate actively to safeguard its own guarantees. The traditional self-referential conception of criminal repression effectively summarised in the expression ‘punitive sovereignty’ gives way to an idea of jurisdiction that draws directly from the principle of mutual recognition. In this scenario, the profile of the protection of the individual from the risk of a duplication of the exercise of punitive power for the same fact in different states assumes the role of the first magnitude. Hence, there is a need to act on two levels at the same time: to seek solutions aimed at resolving possible conflicts of jurisdiction (prohibition of competing prosecutions for the same fact), and to attribute, within each Member State, preclusive effects to the previously judged foreigner (ne bis in idem).

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.

What Happens in State Court Stays in State Court: Comity and the Relitigation Exception to the Anti-Injunction Act

Kid: Dad, can I go to the big party? Dad: Did you ask mom? Kid: Yes. She said no. Dad: Sure, you can go. And thanks for asking mom first. Good relationships are built on respect and comity. That, of course, is not comity. But sometimes complexity impedes comity, and Ryan and Solis argue here that a subtopic of the Anti-Injunction Act’s Relitigation Exception fits that mold. The Relitigation Exception applies when related cases are pending in state and federal court and the federal court renders an arguably preclusive judgment. Traditionally, the winner had to take the federal judgment to state court and argue preclusion as a defense. The relitigation exception recognizes that, in some circumstances, the federal-judgment winner may be able to enforce preclusion by getting an injunction from the judgment-rendering federal court. This article is about the federal-judgment winner trying to get two bites at the preclusion apple. That is, the winner raises the preclusion argument in state court planning, if things fail, to then return to federal court for the injunction. Ryan and Solis say that should happen almost never, disagreeing with contrary cases. Once the state court unambiguously rejects the preclusion defense, Full Faith and Credit often requires the federal court to give preclusive effect to the state court’s ruling on preclusion. But even if the preclusion ruling isn’t itself preclusion, it does deserve respect, so long as it is unambiguous. The mom-then-dad thing just isn’t comity.

Rediscovering the Issue Class in Mass Tort MDLs

For the past twenty-plus years, MDL transferee judges have essentially regarded the class device as unavailable as they struggle to organize masses of tort actions sent their way by the JPML. Even the badges and incidents of class practice, in the form of common-fund-based approaches to attorney compensation and lead-counsel structures for case organization, have come under attack from commentators who insist that mass-tort MDLs should not be treated as “quasi-class actions,” and that Rule 23 does not present a “grab bag” from which MDL judges may pick and choose the most convenient implements. Leading lights of the complex litigation academy are emphatic that procedures for selecting and compensating class action counsel are uniquely rooted in the language, history and structure of Rule 23: when pirated away from their doctrinal home, we are told, these collective practices become contraband. The thesis of this essay is that judges and commentators are wrong to categorically reject class-based procedures in mass tort MDLs, as they do. Contrary to popular belief, Rule 23 does provide, if not a grab bag (that’s too opaque), a Black & Decker toolbox chock-a-block with shiny and promising instruments. Most centrally, we contend that Rule 23(c)(4), when properly employed, provides a doctrinally sound and constitutional means for achieving scale efficiencies in mass tort cases. Indeed, the issue class device is unique, among potential approaches to mass-harm litigation, in its ability to confer – meaningfully and durably – preclusive effects to core issues and shave years off of otherwise “black hole” MDL litigations – all while remaining fully consistent with Supreme Court case law, the Seventh Amendment, the text of Rule 23 and other relevant sources of positive law.

Interpreting non-exclusive jurisdiction agreements

This article will argue that exclusive and non-exclusive jurisdiction clauses are in some respects more similar but conversely in other respects less similar than is currently accounted for. Both involve a party submitting to the jurisdiction of a named court or courts which means that the result in cases involving stays or service out should usually be the same. Conversely, a key difference, which is not always given proper weight, is the preclusive effect of exclusive jurisdiction agreements on foreign proceedings. This should usually lead to a different result where a party is seeking an anti-suit injunction to restrain proceedings in a non-chosen court. It is crucial to start by identifying and construing the contractual promises contained in a jurisdiction agreement, both express and implied and both positive and negative. The difference between exclusive and non-exclusive agreements lies in the complex interplay between these positive and negative aspects.

The "Broadest Reasonable Interpretation" and Applying Issue Preclusion to Administrative Patent Claim Construction

Inventions are tangible. Yet patents comprise words, and words are imprecise. Thus, disputes over patents involve a process known as “claim construction,” which formally clarifies the meaning of a patent claim’s words and, therefore, the scope of the underlying property right. Adversarial claim construction commonly occurs in various Article III and Article I settings, such as district courts or the Patent Trial and Appeal Board (PTAB). When these proceedings ignore each other’s claim constructions, a patent’s scope can become inconsistent and unpredictable. The doctrine of issue preclusion could help with this problem. The Supreme Court recently reemphasized in B & B Hardware v. Hargis Industries that administrative decisions can have issue preclusive effect. But district courts and the PTAB use formally different legal standards in claim construction, where the district court takes a narrower view of a patent’s scope. This Note contends that a claim construction determination made by the PTAB under the “broadest reasonable interpretation” standard should, indeed, be the broadest reasonable interpretation of a claim. To facilitate uniformity and public notice, issue preclusion should be applied such that the PTAB’s “broadest reasonable interpretation” is an outer interpretive bound of a patent’s scope in subsequent district court litigation.

Limiting the Last-in-Time Rule for Judgments

A troublesome problem arises when there are two binding but inconsistent judgments: Say the plaintiff loses on a claim (or issue) in the defendant’s state and then, in a second action back home, wins on the same claim (or issue). American law generally holds that the later judgment is the one entitled to preclusive effects. In the leading article on the problem, then-Professor Ruth Bader Ginsburg suggested that our last-in-time rule should not apply if the U.S. Supreme Court declined to review the second court’s decision against giving full faith and credit. Although that suggestion is unsound, the last-in-time rule indeed should not apply if the first judgment is American and the second judgment comes from a foreign-nation court. To establish those contentions, this Article must go to the depths of res judicata and conflicts law, not only here under our last-in-time rule but also abroad where a first-in-time rule reigns. The Article resurfaces from the depths to rearrange the puzzle pieces into a simple reformulation—an elaboration rather than an amendment—of the American law on inconsistent judgments.

The Res Judicata Effects of Foreign Judgments in Post-Award Proceedings: To Bind or Not to Bind?

This comparative analysis explores the question of preclusive effects arising from arbitration related judgments, particularly when a foreign court has already ruled upon an issue relevant to the grounds for refusal under Article V of the 1958 New York Convention. It argues that arbitration-related judgments like exequatur or non-annulment decisions, along with the res judicata and estoppel effects arising from them, can be subject to recognition in other countries. The article thereby rejects some of the views contending that various legal obstacles stand in the way of such recognition, including its compatibility with the 1958 New York Convention. However, risks of forum shopping and undue imbalances in the parties’ rights ultimately support restricting this recognition to judgments rendered at the arbitral seat only. Such judgments should be able to preclude the re-litigation of identical issues in non-seat countries as a matter of res judicata and estoppel.

Justice for All: Certifying Global Class Actions

A federal court should approach the presence of foreigners in a global class-action for monetary relief with an open mind. It should keep them in so long as it can conclude, upon a reflective comparative law analysis, that the judiciary in their nation of origin would uphold the ultimate ruling. For example, Latin American absent class-members should normally stay on board inasmuch as virtually every jurisdiction in their region would allow a U.S. adjudicator to arrive at this conclusion. Accordingly, they would fail, on grounds of res judicata, if they ever tried to re-litigate the matter back home upon a defeat on the merits in the United States. In particular, a tribunal from any one of seven representative regional countries (Mexico, Brazil, Venezuela, Colombia, Panama, Peru, and Ecuador) would most probably find such a U.S. judgment consistent with local due process, as well as with the remaining requirements for recognition. In other words, it would hold that absentees stemming from its jurisdictional territory could not legitimately complain about the preclusive effect since they would have free ridden on the efforts of their representatives with a chance at compensation, would have benefited from numerous fairness controls, and could have similarly faced preclusion in their homeland based on a suit prosecuted by someone else without their authorization. Judges in the United States should engage in a similar in-depth deliberation to decide whether to welcome citizens from anywhere else in the world to the litigation.

The Issue Preclusive Effect of Arbitration Awards

Courts in the United States have two primary means (in addition to individual adjudication) by which to resolve disputes in which numerous claimants have claims against a defendant that raise the same or similar issues. The first is the class action, in which the class representative brings suit on behalf of similarly situated but absent plaintiffs. A judgment in the class action (assuming that a class has been certified) binds the defendant and the absent class members. Since the Supreme Court’s decisions in Concepcion and Italian Colors, however, businesses can reduce if not avoid the risk of class actions by using arbitration clauses with class arbitration waivers in their standard form contracts with consumers and employees. When businesses use such contract provisions, disputes are to be resolved in individual arbitration, with no aggregation of claims either in arbitration or in court. The second primary means of resolving duplicative litigation of similar claims is the doctrine of issue preclusion (also referred to as collateral estoppel). Issue preclusion bars a party from relitigating an issue that was resolved in a prior case involving the same party or parties. The issue must have been fully and fairly litigated and actually decided in the prior case, and only a party to the prior litigation or one in privity with a party is bound by the prior judgment. But a non-party to the prior case can, in appropriate circumstances, rely on issue preclusion against a party to the prior case (what is called “nonmutual issue preclusion”) and preclude relitigation of the issue — i.e., hold the other party bound by the resolution of that issue in the prior case. This paper examines the extent to which arbitration awards have issue preclusive effect, such that issue preclusion might substitute for class actions when businesses use arbitration clauses with class waivers. It further suggests that the law governing issue preclusion in arbitration might develop in ways parallel to the law governing class actions and arbitration: with businesses using “issue preclusion waivers” to avoid the issue preclusive effect of awards, consumers and employees challenging such waivers as unenforceable, and businesses relying on FAA preemption in response.

Understanding Remedy-Stripping Arbitration Clauses: Validity, Arbitrability, and Preclusion Principles

Overzealous adhesion contract drafters frequently try to deprive adhering parties of their remedies by grafting remedy-stripping provisions onto their arbitration clauses. Courts have not sufficiently analyzed such remedy-stripping clauses or attempted to craft a coherent and uniform approach to them. To date, courts have either held the entire arbitration clause unconscionable and therefore unenforceable; severed the offending remedy-stripping terms, to enforce a cleaned up arbitration clause without remedy limitations; or enforced the remedy limitations while holding that arbitration will proceed only on those claims for which the arbitrator is authorized to award remedies. More recently, drafters of remedy-striping arbitration clauses have argued that the FAA's purported mandate that arbitration clauses must be enforceable written preempts state contract doctrines that would deny enforcement to remedy-stripping clauses. If there is any serious possibility of judicial acceptance of this argument, it is crucial to have worked through the issue of the preclusive effect of an arbitration conducted under such an agreement. I argue that, although proper understanding of preclusion principles places the validity of remedy-stripping clauses in a different light, courts are still justified in striking remedy-stripping clauses in their entirety as unconscionable or against public policy. I argue that courts should give the prior arbitration in such circumstances the narrowest preclusive scope that is consistent with established preclusion principles. Finally, I show how taking preclusion principles into account can also resolve the special remedy-stripping problem of class actions.

A Declaratory Theory of State Accountability

Debate persists over the meaning of the Eleventh Amendment and the degree to which it supports the lines drawn by the Supreme Court on fraught questions of state sovereign immunity and accountability. Scholars disagree both as to the legal and historical accuracy of the Court’s expansive conception of sovereign immunity and as to the proper scope of the Ex parte Young action, the primary tool for ensuring state accountability. Characterized as a body of law devoid of principle and subject to arbitrary stops in reasoning, the doctrine has yet to strike a balance between immunity and accountability that enjoys anything close to a consensus. In this Essay, we propose to blend current law and scholarship into a new, historically grounded, declaratory theory of state accountability. Our account builds on the willingness of federal courts to entertain applications for declaratory relief and their reluctance to entertain money claims against the states. We argue that the states should take responsibility for money claims, at least in cases where Congress cannot abrogate state immunity. We suggest a framework within which states give preclusive effect to federal declarations in follow-on suits brought by individuals who seek monetary relief in accordance with state law. Such an approach would honor a surprisingly strong tradition of reliance on declaratory judgments as a tool of government accountability, would preserve state control over the purse strings, and would give state governments a role in securing the effectiveness of judgments against the states comparable to that played by Congress and the executive branch in connection with judgments against the federal government.

Collateral Damage: When Should the Determinations of Administrative Adjudications Have Collateral Estoppel Effect in Subsequent Adjudications?

Collateral estoppel is an equitable doctrine under which a court gives issue preclusive effect to findings of fact or law made in previous proceedings. The U.S. Supreme Court has recently held that under certain circumstances the determinations of administrative adjudications have collateral estoppel effect in federal court. The Court, however, did not address under which circumstances the determinations of administrative adjudications should have collateral estoppel effect in subsequent administrative adjudications. There has been little clear and consistent reasoning in lower federal courts about when collateral estoppel should apply in administrative adjudications, and administrative agencies vary widely in their application of collateral estoppel when conducting adjudications.This Note argues that neither the balancing test used to apply collateral estoppel in federal court nor the more formalistic per se rules proposed by some commentators are appropriate when applying collateral estoppel between administrative adjudications. Instead, courts should defer to agencies, granting them wide discretion to recognize or not recognize the collateral estoppel effect of prior administrative adjudications.

Controversy over Issue Preclusion in Russia’s Criminal Procedure: Can Common Law Offer a Solution?

Even though Russia’s new Code of Criminal Procedure of 2001 had from the very beginning contained the article titled ‘Preclusive Effects,’ it was not until a decision by the Constitutional Court of 2008 that the doctrine of issue preclusion was, in its proper sense, reinstated in Russian criminal law, barring facts definitively established in a civil trial from relitigation in criminal proceedings. Despite heavy criticism that came down on the Constitutional Court for what was seen by law enforcement agents as unwarranted judicial activism, the Russian Parliament soon amended the article in line with the interpretation offered by the Court. This, however, did not end the controversy as critics raised a valid point: an automatic transfer of facts from civil proceedings with a priori more lenient requirements of proof is likely to distort outcomes, harming defendants, the prosecution, and, ultimately, societal interests. This article will turn for apotential solution to common law, which has been able to avoid this problem by clearly distinguishing between different standards of proof applicable in civil v. criminal litigations. It will be shown, using the United States as an example, how courts can effectively use issue preclusion to pursue a number of legitimate objectives, such as consistency of judgments and judicial economy, with due account for the interests of parties in proceedings. At the same time, issue preclusion appears an inappropriate and ineffective means to combat arbitrariness of the judiciary – the end which Russia’s Constitutional Court and law makers arguably had in mind when introducing the doctrine into Russian law.