Applicability of Res Judicata in International Arbitration: The Case Prior National Court Judgments

The laws of various States provide for res judicata to prevent parties from relitigating the same dispute and to deem prior judgments conclusive as facts in subsequent proceedings. The reasons behind this attitude are to ensure that adversaries comply with court judgments, prevent the perpetuation of disputes, avoid conflicting decisions, and impose the power of the State through its judiciary. It is no secret that national courts are no longer solely responsible for adjudicating all disputes, and that arbitrators play a significant role in this. In many cases, this situation has given rise to addressing the applicability of res judicata to prior court judgments in international arbitration. The problem is that, although most national laws of different States address res judicata in litigation through careful, sometimes detailed regulation, they have not addressed the same issue in international arbitration. Similarly, international arbitration rules, relevant international conventions, and soft law do not explicitly regulate the applicability of res judicata to prior court judgments in international arbitration.