Latest News

Resjudicata in Arbitration

Resjudicata in Arbitration

Arbitration is one of the mechanism of alternative dispute resolution in which the parties solve their disputes outside the court. The dispute is determined by a neutral third party . The decision given by the arbitrator is usually binding upon both the parties.

The process of arbitration

  • Filing of a case 
  • Selection of an arbitrator
  • Preliminary hearing and scheduling order
  • Discovery process
  • Hearing /Arbitration hearing
  • Post Arbitration briefs
  • Final Arbitral Award

Advantages & Disadvantages of Arbitration

Advantages of Arbitration

  • Shorter length of the proceedings.
  • Lower costs of the proceedings
  • Selection of an arbitrator by the parties
  • It is a private /informal and economic procedure.
  • It is faster than litigation in court.

Disadvantages of Arbitration

  • Parties pay for arbitrator and agency.
  • Rights of appeal are limited.
  • Lack of formal discovery
  • Limited recourse.
  • Uneven playing field.

Resjudicata in common law 

According to section 11 of CPC , No court shall by any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between the parties under whom they or any of them claim , litigating under the same titile in a court competent or by such subsequent suit or the suit in which issue has been subsequently raised and has been heard and finally decided by such court.

Essentials of Resjudicata

  • There must be two suits one former suit and the other subsequent suit.
  • Parties of the former and Subsequent suit or the parties under whom they or any of them claim should be same.
  • The subject matter of the subsequent suit should be identical or releated yo former suit whether actually or constructively.
  • The case must be finally decided between the parties.
  • The former suit should be decided by the court of competent jurisdiction.
  • Parties in the former as well as in subsequent suit must have litigated under the same title.
  • The parties were given full and fair opportunity to be heard on the issue.

Exceptions to the plea of Res Judicata

  • Judgement in original suit obtained.
  • Different cause of action .
  • When there is interlocutory order.
  • Waiver of a decree of Res Judicata.
  • Court not competent to decide.
  • When there is change in law.

Does the doctrine of Resjudicata applicable in Arbitral proceedings?

Condition 1 : when the matter for the same title have arisen already , then the matter can be taken for the second time under the same title.

In the case of Shri Sai Enterprises vs. Mahanagar Telephone Nigam Ltd and ors.

In this case , the award of 1st arbitrator was challenged before the court , the court modified the award party . The matter again placed before the second arbitrator by the impunged award and the second arbitrator exceeded its jurisdiction and passed award or all claims already settled by 1st award . Hence, there is no question of re-agitating the same issue even on the facts as well as or laws of resjudicata.

Condition 2: Whether parties entered into an arbitration agreement can refer their disputes in appeal during the pendency of an appeal before Supreme Court? 

Under section 8 of the Act , A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall refer the parties to arbitration . Hence the parties can refer their dispute in appeal , but it is necessary that agreement must be already in existence before the action is brought in the Court.


Hence the doctrine of Resjudicata doesn't apply to the cases of arbitral proceedings . And the type of  dispute taken once under the arbitration agreement can be taken again under the same title ,by same parties.

  • Introduction
  • Conditions
  • Conclusion

BY : Riya Sehgal

All Latest News