Principle Of Res Judicata Research Articles

Obavezujuće dejstvo pojedinačnih pravnih akata - dejstvo presude krivičnog suda u pravnom poretku

The unity of the legal order is the foundation of the rule of law. It also implies the internal harmony of decision-making, ie. the absence of contradictory court decisions in the unified legal system. In order to realize this ideal, it is necessary for the legal system to foresee that legally binding and final individual legal acts mutually bind state bodies. The unity of the legal system can be only achieved when the system provides that conviction judgment rendered by a criminal court bind civil court in the subsequent civil proceedings. Civil courts should be also bound by a decision rendered by a criminal court if the defendant is acquitted of the charge, in case criminal court has solved some preliminary question that is important for deciding in civil proceedings. Such a system exists in Austria and Serbia. In principle, a verdict rendered by a criminal court should produce effects erga omnes. On the other hand, in Germany and Anglo-Saxon legal systems, the principle of independence of criminal and civil justice applies. However, the difference between the previous and the latter system is not as significant as it seems at first glance, because the judgment of the criminal court in civil proceedings has a significant probative value. From the point of view of the Constitution of Serbia, as well as the European Convention on Human Rights and Fundamental Freedoms, the principles of independence of the courts in making decisions, the requirement that a court must only be bound by the Constitution and the law are not an obstacle for the legislator to determine that the final judgment of the criminal court binds the civil court. The principle of res judicata, which forms one of the foundations of the rule of law, is much broader in Anglo-Saxon than in Euro-continental law. This particularly applies to the application of the institute issue or collateral estoppel which derives from the Roman principle of venire contra factum proprium. The principle serves to prevent substantial injustice. The principle of the rule of law requires legal certainty and predictability which implies the absence of contradictory court decisions in a unified legal system. In order to avoid the possibility of making contradictory court decisions, it is necessary to reexamine the ambit of the res judicata principle and to extend the application of the principle of venire contra factum proprium and preclusion in order to achieve procedural fairness.

On compensation of losses incurred as a result of court judgements or arbitration awards

As case law has proven, a court judgement or an arbitration award, which resulted the losses of the party, serve as a basis for claiming these losses as damages from a breaching party. In these cases, we do not deal with the issues of recognition of foreign judgements or arbitration awards, but rather on recognition of the mere fact of the issuance of a decision against the party which was suffered the damages and wants that the breaching party compensates them. The legal ground for this recognition is the commonly known principle of res judicata. Compensation of losses becomes more complicated in situation when a foreign element is involved in the relation. Firstly, it may happen that the applicable foreign law does not allow adjudication of damages in these situations or make it conditional by various requirements. Secondly, recognition of amounts paid under foreign judgements or arbitration awards as losses depends on the degree of trust of the local courts to these foreign judgements and awards. In case a claim on compensation of losses which claimant incurred under foreign judgements and arbitration awards is filed in the court, the court faces with the question as to the starting point of a limitation period. The Russian case law evidences that alimitation period for claiming damages starts from themoment of issuance of the relevant court judgement or arbitration award and their came into effect, but not from the moment of breaching by the relevant party of its initial obligation, which was the basis for filing a claim in foreign court or arbitration institution.

Revisiting the International Court of Justice Procedure for the Revision of Judgments

The International Court of Justice (“ICJ”) is a court of first and last instance. Its decisions are “final and without appeal.” At first blush, this seems uncontroversial; it is a simple restatement of the well-established principle of res judicata. But if the court makes a judicial pronouncement without all the facts to hand, can one say that the decision is legitimate and authoritative? Pursuant to article 61 of the ICJ’s Statute, the court does have the authority to revise a judgment in certain, limited circumstances. Revision is a remedy that enables the court, upon the application of a party, to reconsider an otherwise final and binding decision. An application for revision is admissible when a new fact is discovered that was unknown to the parties and the court during the proceedings, and which would have the effect of overturning or altering the court’s judgment.

Some views from the South African Constitutional Court on patent revocation and infringement matters: Ascendis Animal Health (Pty) Ltd v Merck Sharp Dohme Corporation and Others 2020 (1) SA 327 (CC)

In South African law, the substantive requirements for a patent may be scrutinised during infringement proceedings or revocation proceedings. Lack of novelty (or anticipation) is a ground for revocation of a patent but can also serve as a defense in an infringement matter. After a series of decisions by the Commissioner of Patents and the Supreme Court of Appeal on infringement and revocation matters relating to Merck’s Patent 98/10975 and its alleged infringement by Cipla (now Ascendis), the Constitutional Court was asked to deliberate the matter in Ascendis Animal Health (Pty) Limited v Merck Sharp Dohme Corporation and Others 2020 (1) SA 327 (CC). The main issue related to the principle of res judicata, and whether invalidity of a patent may be considered as a defense during infringement matters after the validity of the patent was already determined during revocation proceedings between the same parties. The decisions also considered whether each revocation ground constituted a separate issue or whether revocation is the issue for purposes of determining whether a matter is res judicata. A review of all the preceding decisions also indicate that the Supreme Court of Appeal may have developed the way in which lack of novelty is determined in South African law, but without explicitly acknowledging that the approach is different. The Constitutional Court’s evenly split decisions (per Khampepe J and Cameron J) indicate different approaches to reaching just and fair outcomes in patent matters. While Khampepe J’s decision focuses more on the need to remove invalid patents from the register, Cameron J’s decision focuses on preventing harm from piecemeal litigation.

Distinguishing Interpretation and Revision Proceedings at the International Court of Justice

Abstract There is a need − both conceptual and practical − to distinguish clearly the procedures applicable to interpretation and revision at the ICJ. To do so, the article first undertakes an analysis of the relevant provisions of the Statute – Articles 60 and 61 – and of the Rules of Court. The differences between both proceedings with regard to their introduction before the Court, the ICJ’s jurisdiction to consider them, and their different admissibility requirements will be addressed. Then, it considers issues pertaining to the relationship between an original judgment – the one to be interpreted or revised – and the judgment in interpretation or revision. The pivotal role of the principle of res judicata is taken into account. Furthermore, the piece attempts to attribute a proper characterisation to interpretation and revision proceedings, as either new cases, incidental proceedings, or a hybrid conception between those two more conventional denominations.

Víctor Pey Casado and President Allende Foundation v Republic of Chile: Layers of Preclusion

In a Decision dated 8 January 2020, the ad hoc Committee in Victor Pey Casado and President Allende Foundation v Republic of Chile decided in favour of the Respondent by declining to annul a 2016 Award—the second in the dispute. The decision is remarkable, not just because it serves as the final chapter in the longest-running ICSID dispute to date, but also because it illustrates the many difficulties that may arise from the application of the principle of res judicata in resubmission proceedings. This case comment focuses on the Committee’s application of res judicata: to this end, it succinctly reviews the background to the dispute (Section II), addresses the decision of the Committee (Section III) as well as the Separate Opinion (Section IV), and comments on the Tribunal’s application of the doctrine and its potential implications for future cases (Section V).

Jus Gentium and the Primary Principles of International Law

Jus gentium is a system of rules of law that takes its origins even from the inter-ethnic Roman law, that contains the basic principles of regulation of both internal and international law. Thanks to the jus gentium the customary general principles of law and the general principles of international law have been transferred from the ancient law to the middle ages when they were established as well as. Most of the general principles of law of peoples have become today the imperative principles of international law, and the general principles, that were developed by the Roman jurists, foremost, it is the principles of equality, justice, and humanism, that were reciprocated by the law of European states, eventually transformed into the general principles of national law, and through them - the basic principles of international law. Jus gentium made a significant impact on the formation of the basic principles of international law on the European continent, and later on - universal international law. In the structure of Roman law, three main elements were distinguished: jus civile, jus naturale, jus gentium. The main source of international law is usually jus gentium, but today international law also accumulates the general principles of law (jus naturale) and universally recognized principles of domestic law (jus civile), which is confirmed by the norm of art. 38 of the Charter of the United Nations. In jus gentium, we find the origins of the principle of sovereignty, establishes the principle of bona fide compliance, the principle of mutual courtesy (comitas gentium), develops the principle of succession, there are first principles of territorial space, the principle of res judicata - the principle of binding for the parties to the court decision. Most procedural and technical principles have their source jus gentium.

Applicability of the Excess of Power Doctrine to the ICJ and Arbitral Tribunals

Abstract The problem with regard to the excess of power doctrine, one of the most controversial issues in the procedure of international courts and tribunals, was invoked in certain recent cases, such as the Bosnian Genocide case and the South China Sea case. To solve this problem, it is necessary to examine two relevant legal notions: the principle of competence-competence; and the principle of res judicata. First, the principle of competence-competence has been regarded as a relative power of arbitral tribunals in the sense that it is limited by the application of the rules of treaty interpretation. This means that there are possibilities, in the substantive sense, of an excess of power even when the principle of competence-competence is applied. Second, the international jurisprudence has shown that the force of res judicata can be excluded by a post-award agreement of the parties. Thus, it is possible, substantively and procedurally, to examine the possibility of an alleged excess of power having been committed by an arbitral tribunal and this understanding has been accepted by the ICJ in its jurisprudence. On the contrary, the ICJ has denied the possibility of an excess of power by itself, on the basis of the absolute power of competence-competence and the principle of res judicata. Here, several problems remain unsettled with regard to the difference between the possibility of an excess of power by ad hoc arbitral tribunals and the possibility of an excess of power by the ICJ.

Taking a Second Bite at the Appeal Cherry: Molaudzi v S

The principle of res judicata is well-established in our law: essentially it means that parties to a dispute have only one metaphorical "bite at the cherry". The "bite" can entail appealing through the hierarchy of courts, but once the parties have exhausted their appeals, they cannot re-litigate the same dispute. However, in the recent case of Molaudzi v S 2015 2 SACR 341 (CC) the appellant attempted to appeal to the Constitutional Court twice: the first time the application for leave to appeal was dismissed; the second time the application was granted and the appeal upheld. The appellant got a second "bite at the cherry". In Molaudzi v S the Constitutional Court developed the common law by creating an interest-of-justice exception to the principle of res judicata and – for the first time in the Constitutional Court's history – overturned one of its own judgements. In this case note I present the background of the case of Molaudzi v S, analyse the judgement, and differentiate it from another Constitutional Court case that dealt with res judicata, namely Mpofu v Minister for Justice and Constitutional Development 2013 2 SACR 407 (CC).

Habeas Corpus and Innocence: A Remedy for the Wrongly Convicted

Once a conviction takes place, in the event that proof of innocence comes to light after all appeal routes have been exhausted, the wrongly convicted will have little opportunity to get that evidence before a court and will remain imprisoned. The elusive silver bullet of exculpatory DNA evidence may well give support to the post-appellate extraordinary remedy of ministerial review pursuant to.696.1 of the Criminal Code but evidence relative to the far more frequent incidents of mistaken eyewitness identification, false confessions, perjured jailhouse informant testimony or otherwise faulty forensic science will very likely never see the light of day in the criminal justice process. Therefore, when all else has failed, this paper proposes that “The Great Writ of Liberty” of habeas corpus as a fundamental error conviction device may well be the last best hope to get evidence of innocence before a court for the purposes of exoneration. The traditional approach, relying upon the limitations of statutory jurisdiction only, stands for the proposition that habeas corpus cannot be used to circumvent the ordinary appeal process. This promotes the interests of finality for criminal convictions and the principle of res judicata. It is different matter however when there is no longer recourse to appellate remedies, either because all appeals have failed or the time for pursuing same has elapsed. In this regard, the production of fresh evidence leading to proof of innocence that has come to light post-conviction and appeal can better be served by the “purposive” interpretation of habeas corpus as a Charter remedy. A careful reading of the case law and legislation reveals that there is no doctrinal basis upon which to forestall the Great Writ of Habeas Corpus as a serviceable remedy to get proof of innocence before a court to exonerate the wrongly convicted.

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

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.

ARE ITALIAN COURTS DIRECTLY BOUND TO GIVE EFFECT TO THE JURISDICTIONAL IMMUNITIES JUDGMENT?

The answer to the question of whether Italian courts are directly bound to give effect to the Jurisdictional Immunities decision depends on both the content of the obligations established by the International Court of Justice (ICJ) concerning remedies and the peculiarities of the Italian legal system. While the ICJ affords a certain margin of appreciation to Italy in the implementation of the dispositif, the requirement that judicial decisions infringing Germany’s immunity must cease to have effect confirms a consistent trend towards the expansion of the subjective scope of ICJ judgments. The problem of whether action by either the executive or the legislative branches of government is an essential prerequisite for court implementation of the ICJ judgment should be solved by having regard to both preexisting domestic judicial proceedings and the hierarchical rank of the obligation to comply under domestic law. It is argued that national courts have to ensure the direct application of the Jurisdictional Immunities judgment in ongoing proceedings where no decision has become final. In addition, recent practice shows that even the tension between the duty to comply and the principle of res judicata might be resolved by the judiciary, giving prevalence to the former.

Revision Proceedings under the ICSID Convention: Suggestions for a Possible Interpretation of the Prerequisites of Article 51 of the ICSID Convention

Recently, not only the number of ICSID proceedings in general has increased but also the number of annulment and revision proceedings challenging the finality of an ICSID award. This development can be seen as reflecting the increasing dissatisfaction among certain of the players in the field with the outcome of an ICSID award specifically and the ICSID system in general. It thus appears not unlikely that the number of revision proceedings as one of the currently available remedies to challenge the finality of an ICSID award will further increase. While three applications for revision have been filed so far, only one decision in an ICSID revision proceeding has been rendered by an arbitral tribunal. In view of the scarcity of jurisprudence and literature in the field of ICSID revision proceedings, the authors discuss legal standards governing ICSID revision proceedings in general and the burden of proof and weighing of evidence in ICSID revision proceedings specifically. In applying these standards to each of the prerequisites of Article 51 of the ICSID Convention, which must be met in order for an application for revision to be successful, the authors provide guidance for determining the prospects of success of an Article 51 revision application. The authors conclude that, in light of the presumption in the ICSID Convention in favour of the finality of an award, revision should be an exceptional remedy. The prerequisites of Article 51 of the ICSID Convention should be interpreted restrictively. A balance needs to be struck between the principle of res judicata and legal stability, on the one hand, and the interests of justice and procedural fairness, on the other hand. In view of the fact that the ICSID Convention provides generally for the finality of an award and does not foresee an appeal mechanism, such a mechanism should not be introduced through the ‘back door’ in the guise of an application for revision.

Mandatory Consumer Law, Ex Officio Application of European Union Law and Res Judicata: From Océano to Asturcom

In Oceano, followed by the rulings in Cofidis, Mostaza Claro, Rampion and Pannon, the ECJ held that national courts must abandon their judicially passive role to ensure ex officio that consumer rights are sufficiently protected. In the Asturcom case, the Court had to decide whether a national court hearing an action for enforcement of a final arbitration award has to determine of its own motion the possible unfairness of an arbitration clause, if the arbitration award became final and acquired the force of res judicata. This article analyses ECJ consumer case law leading up to the decision in Asturcom. It also examines the implications of this ruling on national procedural law in greater detail. It is argued that the ECJ, in developing an autonomous concept of public policy, introduced EU standards with far reaching impacts on the principle of res judicata in consumer arbitration. Given this, the manifold implications of the Asturcom case on consumer arbitration law in particular and civil procedures in general are examined.

The Impact of European Law on Domestic Procedural Tax Law: Wrongfully Underestimated?

CJ case law reveals that European law is having an increasing influence on procedural tax law. In this article, an overview of the influence of European law on procedural tax law will be depicted. Procedural tax law is here defined as the totality of rules regarding the manner in which material tax liabilities should be expressed in the actual payment of tax. The authors will describe the above-mentioned influence in two articles. In part 1, the authors first outline the European law framework against which domestic procedural tax law should be tested. Subsequently, they discuss in more detail the notable influence of European Community (EC) law to several specific domestic rules and concepts of procedural tax law, such as entitlement to compensation for EC infringements, unlawful administration of justice, rules of evidence, and fixed payment of procedural costs. In part 2, the authors discuss whether national time limits, the impossibilities for an administrative body to re-examine an earlier decision, procedural legal effect, and the principle of res judicata, are compatible with European law.

Cour de Cassation (liére Chambre) – Hof van Cassatie (1e Kamer) (Belgique/Belgium/Belgien)

Abstract. Responsibility of the state for faults committed in the course of the administration of justice. Principle and conditions of application. 1. Consequences resulting from the personal exemption enjoyed by the institutions of the state, in particular judges and officials of the ministere public. 2. Consequences resulting from the judicial nature of the act which causes loss and of the principle of res judicata. 1. The responsibility of the state is not necessarily excluded by the fact that the institution itself may not be liable for the act which causes loss even though it may have issued the act, either because the institution cannot be identified, or because the act cannot be regarded as a fault on the part of the institution (. . .), or because this act is a fault but the institution itself is personally exempted from liability. The state may, in general, be regarded as responsible for the loss resulting from a fault committed by a judge or an official of the ministere public where such a person has acted within the limits of his or her statutory powers, or would reasonably be regarded as having acted within these limits. 2. The principles of the separation of powers, the independence of the judiciary as well as the principle of res judicata do not imply that in general terms the state is protected from the obligation to make good the damage caused to another by its fault or by the fault of its institutions in the course of the administration of justice, in particular in the course of the performance of those acts which directly constitute the object of the judicial function. However, if the fault committed by a judge or by an official of the ministere public constitutes the direct object of the judicial function, the claim for compensation of loss cannot, in general, be accepted unless the act in question has, on the grounds of violation of an established legal principle, been removed, amended, annulled or withdrawn by a decision which itself has the authority of res judicata and the original act does not itself now have the authority of res judicata.

Principle of the Rule of Law in the Case-law of the European Court of Human Rights

The article is devoted to the interpretation of the principle of rule of law in the practice of the European Court of Human Rights. The concept of the rule of law, along with democracy and human rights makes up the three pillars of the Council of Europe and is endorsed in the Preamble to the ECHR. The Preamble to the ECHR states that the governments of European countries are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law. The rights most obviously connected to the rule of law include: the right of access to justice, the right to a fair trial, the legal principle that measures which impose a burden should not have retroactive effects the right to an effective remedy, anyone accused of a crime is presumed innocent until proved guilty etc.
 The author concludes that there is an expediency of grouping separate requirements of the rule of law in the practice of the ECtHR around concepts, which are concluded to be elements of the rule of law in a democratic society. Such elements of the rule of law in the practice of the ECHR are recognized as legality, legal certainty, fairness of a trial and the priority of human rights.
 Legality supposes that authorities need a legal basis for measures which interfere with a right of an individual, as well as quality requirement for the law such as accessibility, foreseeability and no arbitrariness. Legal certainty encompasses foreseeability in application of the law; non-retroactivity of legislation; the principle of res judicata; mandatory execution of court decisions and consistency of judicial practice. Fair trial requirements devoted into two groups: general requirements (access to court, independent and impartial tribunal, execution of court decisions etc.) and requirements for criminal proceedings (presumption of innocence, principle nullum crimen sine lege etc.)
 It is noted that the legality, legal certainty, fairness of a trial are formal requirements of the rule of law, thus the priority of human rights is a substantive (material) requirement of the rule of law. The aforementioned testifies to the natural-legal approach that the ECHR is guided by in interpreting the rule of law in its practice, understanding it primarily as the rule of human rights.

The Orinoco Steampship Company Case Before the Hague Tribunal

On the 9th of April, 1911, the Hague court will celebrate its first decennial. The first decade of the court was opened by the submission on the part of the United States and Mexico of the Pious Fund case to the tribunal for its decision, and of the eight cases so far submitted to the court and brought to trial during the first decade, the United States has been a party in four, and in a fifth, the Japanese House Tax case, the United States agreed to abide by the result. The last case to be tried was the Orinoco Steamship Company case submitted by the United States and Venezuela.Both the Pious Fund and the Orinoco Steamship Company case raised important questions vitally affecting the future of international arbitration. Both cases were peculiar in that they dealt with a question which had already been once before decided by an arbitral tribunal. In both cases the effect of the previous arbitral decision was submitted as a preliminary question to the Hague court. In the Pious Fund case the preliminary question submitted was as to whether the claim, as a consequence of the former decision of Sir Edward Thornton, umpire under the convention between the United States and Mexico of 1868, was within the principle of res judicata. The court sustained the contention of the United States, by holding that the rule of res judicata applies to international arbitral sentences “ rendered within the limits of the jurisdiction fixed by the compromise,” and accordingly rendered judgment in favor of the United States, without considering the merits of the claim.