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Arbitral Res Judicata: A Transnational Approach of Its Application


Arbitral res judicata, also known as issue estoppel or collateral estoppel, refers to the legal doctrine that precludes re-litigation of issues or claims that have already been decided in a previous arbitration award. This principle plays a crucial role in the finality and efficacy of arbitral proceedings, promoting the resolution of disputes in a timely and conclusive manner. A comparative transnational analysis of arbitral res judicata involves examining how this doctrine is recognized and applied in different jurisdictions. Below, I provide an overview of the concept and then delve into a comparative analysis with references and case law.

Definition and Framework

Arbitral res judicata suggests ‘the proposition that a Court’s or tribunal’s conclusive adjudication of a conflict is final and binding on the subject matter in dispute and cannot be relitigated by a subsequent court or tribunal.’[1] This notion prevails in the idea that parties should not be allowed to pursue the same issues in future arbitral proceedings. The principle seeks to uphold effective time and resource management as well as the affirmation of an arbitral award’s integrity and finality. There is a slight diversity, as regards the application of res judicata in arbitration, among many domestic and international jurisdictions, that are mainly influenced by prevailing legal practices, arbitration laws, and judicial decisions. Their respective consideration parts when determining (a) Which parties may assert res judicata, (b) When a decision or award attains res judicata effect, and (c) Whether res judicata principles form part of a country’s public policy.[2]

Comparative Analysis

  1. Common Law Jurisdictions:

The concept of res judicata is generally broader in common law jurisdiction as compared to civil law jurisdictions. In common law jurisdictions, the principles that constitute res judicata are derived and developed through precedent. Common law countries such as India, the United States and the United Kingdom, have long recognized and applied the doctrine of res judicata in the context of arbitration. The U.S. Supreme Court, in the case of Buckeye Check Cashing, Inc. v. Cardegna[3], emphasized the importance of enforcing arbitral awards and extending the res judicata effect to prevent parties from re-litigating the same issues in subsequent proceedings.

Furthermore, res judicata, in these jurisdictions, has been subdivided into claim preclusion[4] and Issue preclusion[5]. On the one hand, claim preclusion involves the barring of a party from relitigating or denying a claim that has been conclusively decided on the merits between the same parties and on the same legal basis from the same facts. On the other hand, in issue preclusion, a party is bound by a previous Court’s or tribunal’s determination of a specific issue, whether legal or factual, provided that the issue was ‘essential’ to the prior judgment.[6]

As to what it means for an issue to be considered ‘essential’ to the prior judgement, in England, it has been defined as ‘necessary to establish a cause of action.’[7] India approaches it as ‘matters directly and substantially in issue.’[8] Contrary to the others, the American view allows third parties to rely on issues of fact or law that have reached finality even if the third party was not a party to the prior proceeding.[9]

While the principles are not codified in domestic legislation, court precedent allows for the application of res judicata principles to arbitral awards the same as courts.


  1. Civil Law Jurisdictions:

Civil law jurisdictions, such as some countries in continental Europe, Latin America, and the Middle East, principally acknowledge the doctrine of res judicata which can be found encoded within their civil codes. In the case of Norsk Hydro ASA v. Statoil ASA,[10] the French Cour de Cassation held that the principle of res judicata applies to arbitral awards, emphasizing the need for finality in dispute resolution.

However, the scope of the principle is narrower in civil law jurisdictions as compared to common law jurisdictions. Res judicata in civil law countries only encompasses claim preclusion and not issue preclusion, although even then the exact scope depends largely on the respective domestic laws. For example, in Switzerland and Germany, the preclusive application of res judicata is limited to actual prior determinations and not the reasoning of a court or tribunal, whereas, in the Netherlands, Italy, Belgium, and France, res judicata is also inclusive of the ratio decidendi.[11]

 In these jurisdictions, res judicata is determined through the application of a ‘triple identity test’[12] which requires the (1) Identification of the object: relief sought must be the same (2) Identification of the grounds upon which the claim is based: the legal basis must be the same, and (3) Identification of the parties: unrelated third-parties are not bound by a prior award or decision. The principles of res judicata in civil law are accepted as applicable to arbitral awards, wherein some jurisdictions have gone as far as to codify the same.[13]  


  1. International Law:

The concept of res judicata has also grown in popularity as an international law principle. International adjudication institutions such as the ‘International Court of Justice’ (ICJ) have openly and extensively applied the doctrine. In the celebrated Chorzow Factory Case,[14] Judge Anzilotti so profoundly recognized res judicata as one of the ‘general principles of law recognized by civilized nations.’[15]

Many jurisdictions have adopted the UNCITRAL Model Law on International Commercial Arbitration, which provides a framework for the recognition and enforcement of arbitral awards. Article 35 of the Model Law recognizes the finality of arbitral awards and their res judicata effect, contributing to a harmonized approach across jurisdictions.

Res judicata, under international law, is applied and takes effect with due consideration to (1) a subsequent matter claiming the same relief as the prior proceeding (2) the sameness of the grounds upon which the claims are being made (3) the sameness of the parties, and (4) the prior proceeding having been conducted before an international court or tribunal.[16] The last requirement precludes the binding effect of decisions made by domestic courts in proceedings subsequently brought before an international dispute settlement body.


Application of Arbitral Res Judicata:

The application of arbitral res judicata has evolved, influenced by both national legal systems and international arbitration practice. Below is an outline of how arbitral res judicata is applied and its evolution in international arbitration.


  1. Recognition and Enforcement:
    • When a party seeks to enforce an arbitral award in a different jurisdiction, the principle of res judicata plays a crucial role. Many jurisdictions recognize the finality of arbitral awards, and enforcing courts often apply res judicata to prevent the re-litigation of issues already decided in the award.
  2. Parallel Proceedings:
    • Res judicata may also be invoked when parties attempt to initiate parallel or subsequent arbitral proceedings based on the same or related issues. The doctrine discourages parties from bringing repetitive claims, promoting the efficiency and finality of the arbitration process.
  3. Relation to Contractual Estoppel:
    • In some instances, arbitral res judicata is closely related to contractual estoppel, where parties are deemed to have agreed that certain issues or facts, once decided in a previous arbitration, cannot be re-litigated in subsequent proceedings.

Evolution in International Arbitration:

  1. UNCITRAL Model Law:
    • The United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration, adopted by many jurisdictions, including both common law and civil law systems, recognizes the finality of arbitral awards. Article 35 of the Model Law explicitly provides for the res judicata effect of arbitral awards, contributing to a harmonized approach.
  2. International Conventions:
    • The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards has played a significant role in shaping the application of res judicata in international arbitration. The Convention requires courts to recognize and enforce arbitral awards, and many national laws implementing the Convention incorporate the principle of res judicata.
  3. Judicial Decisions:
    • International courts, such as the International Court of Justice (ICJ) and national courts with jurisdiction over international arbitration matters, have issued decisions that emphasize the importance of finality in arbitral awards. These decisions contribute to the development and application of arbitral res judicata in the international context.
  4. Evolution of Customary International Law:
    • Over time, the consistent recognition of the res judicata effect of arbitral awards across jurisdictions has contributed to the development of customary international law in the field of international commercial arbitration. This evolution reflects a growing consensus on the need for finality in cross-border dispute resolution.

Challenges and Future Developments:

  1. Complexity of Multi-Tiered Dispute Resolution Clauses:
    • The rise of multi-tiered dispute resolution clauses, involving multiple stages such as negotiation, mediation, and arbitration, poses challenges to the application of res judicata. Determining the finality of each stage and its impact on subsequent proceedings requires careful consideration.
  2. Harmonization Efforts:
    • Efforts to harmonize arbitration laws and practices, such as the work of organizations like UNCITRAL, continue to shape the application of res judicata. Ongoing initiatives seek to enhance the enforceability and recognition of arbitral awards globally.


In conclusion, the application of arbitral res judicata in international arbitration has evolved to reflect the need for finality, efficiency, and consistency in cross-border dispute resolution. The principles laid out in international conventions, model laws, and judicial decisions contribute to a framework that promotes the res judicata effect of arbitral awards across diverse legal systems.

While the concept of arbitral res judicata is widely accepted across jurisdictions, the extent of its application and the specific requirements for its invocation may vary. A transnational comparative analysis reveals a convergence of principles, especially in jurisdictions adopting international arbitration standards. This underscores the global recognition of the importance of finality in arbitral proceedings, ensuring that parties are not subjected to repetitive and protracted disputes. As the field of international arbitration continues to evolve, ongoing efforts to address challenges and enhance harmonization will further shape the application of arbitral res judicata.



[1] Gretta Walter, Fitting a s Square Peg into a Round Hole: Do Res Judicata Challenges in International Arbitration Constitute Jurisdictional or Admissibility Problems?, Journal of International Arbitration, (©Kluwer Law International 2012, Volume 29 Issue 6) pp.651 – 680

[2] Ibid.

[3] Buckeye Check Cashing Inc. v. Cardegna, 546 U.S. 440 (2006)

[4] Known as ‘Cause of action estoppel’ in England: Barnett, supra n. 2 and; ‘res judicata’ in America: Allen v. McCurry, 449 U.S. 90, 94 (1980)

[5] In England it is called ‘Issue estoppel’: Barnet, op cit. In America it is called ‘Collateral estoppel’: Allen v McCurry, op cit.

[6] Gretta Walter, Op cit.

[7] Sarrio S.A v. Kuwait Inv. Auth., (1997) All E.R. (D) 71 (Eng.)

[8] Amalgamated Coal Fields Ltd. V. Janapada Sabha A.I.R. 1964 S.C. 1013 (India)

[9] Park Lane Hosiery Co. v. Shore, 439 U.S. 322, 331 (1979)

[10] Norsk ASA v. State Property Fund of Ukraine (2002) APP.L.R 10/18

[11] See ILA Interim Report, supra n. 1, at 15 (summarizing the civil laws on this point

[12] Ibid. at 14.

[13] ILA Interim Report, Op cit. at 16

[14] Factory at Chorzow, Germany v. Poland, Judgment, Claim for Indemnity, Merits, Judgment No. 13: (1928) PCIJ Series A No. 17, ICGJ 255 (PCIJ 1928), 13th September 1928.

[15] Ibid at 27 (Dec. 16)

[16] Czech Republic B.V. v. Czech Republic, Final Award and Separate Opinion para. 435 (Ad Hoc UNCITRAL Arbitration Rules 2003)

  • This principle plays a crucial role in the finality and efficacy of arbitral proceedings, promoting the resolution of disputes in a timely and conclusive manner
  • es judicata, in these jurisdictions, has been subdivided into claim preclusion and Issue preclusion .
  • A transnational comparative analysis reveals a convergence of principles, especially in jurisdictions adopting international arbitration standards.


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