The doctrine of res judicata safeguards the final and binding effect of decisions in three ways.
II. Rationale and context
A general principle of international law,7 res judicata is not codified explicitly. Notwithstanding phrases stating that decisions are “final and binding between the Parties” (e.g. Articles 59, 60 ICJ Statute),8 res judicata’s specifics come down to jurisprudence. Many discussions on the specifics under international law exist due to divides between national doctrines.9
IV. Applicable law
Treaty tribunals apply international law to res judicata.12 For arbitral tribunals with their seat in a national jurisdiction, the potential conflict-of-laws approaches to res judicata are plentiful and rarely settled by appellate jurisprudence.13 For this reason, several arbitral tribunals,14 the ILA15 and academic authors16 favoured the creation of transnational principles.
V. Requirements under international law
A. Final decision
Res judicata can be based upon partial decisions and non-annulled parts of arbitral awards,17 but not on interim decision. Several other preliminary requirements known from national laws have not yet been addressed in detail by international jurisprudence, such as:
B. Same subject-matter
The potentially-precluded pleading must concern the same claim and cause of action of the prior decision, both of which are often addressed together (herein as “subject-matter”).20 The prior decision must be assessed on the basis of its dispositif (operative part) and the reasoning – particularly with regard to the matters that the parties brought before the prior tribunal for adjudication.21 The resulting principles are:
C. Same legal order
National judgments on treaty/customary international law are not binding on international tribunals.33 This rule serves the rationale enshrined in Article 27 VCLT.
If the national judgment, by contrast, adjudicated on a contract or national law and the international tribunal deals with a treaty claim, res judicata will already fail for difference in subject-matter.34 The national judgment can only be a fact on e.g. national law’s content or as a measure. The fate of subsequent claims under umbrella clauses depends on whether the latter create independent treaty rights.
D. Same parties
All parties of the subsequent proceedings must either be parties to the prior decision, successors or “privies”. “Privity” requires a certain proximity.35 Subsidiaries and majority shareholders are “privies” according to several authorities,36 37 whereas the CME and Eskosol tribunals held otherwise due to the succinct facts.38
VI. Functionally-related preclusion doctrines
When res judicata is inapplicable due to the requirements set out above, preclusion might apply under the doctrine of abuse of process or due to a factual effect of the prior decision erga omnes.39
Cheng, B., General Principles of Law as Applied by International Courts and Tribunals, 1953, Chapter 17.
Mayer, P., Litispendance, connexité et chose jugée dans l’arbitrage international, in Liber Amicorum Claude Reymond – Autour de l’arbitrage, 2004, pp. 185-203.
McLachlan, C., Shore, L., and Weininger, M., International Investment Arbitration: Substantive Principles, 2nd ed. 2017, paras. 4.169-4.199.
Shaw, M., (ed.), Rosenne’s Law and Practice of the International Court: 1920-2015, 5th edn. 2017, Vol. III, Chapter 27, para. 391.
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