Conflict of Laws. Jurisdiction of Courts: Divorce. Application of Res Judicata to Prevent Collateral Attack on Jurisdiction of Subject Matter

1939 ◽  
Vol 52 (4) ◽  
pp. 683
Keyword(s):  
Subject Matter ◽  
Conflict Of Laws ◽  
Res Judicata

The Prevention of Abusive Cross-Border Re-Litigation

2002 ◽  
Vol 51 (4) ◽  
pp. 943-957 ◽  
Author(s):  
Peter Barnett
Keyword(s):  
Subject Matter ◽  
Cross Border ◽  
Res Judicata ◽  
Simple Question ◽  
Foreign Judgment ◽  
Domestic Setting ◽  
Brussels Regulation

The title for this paper poses a deceptively simple question, and it is this: How do we utilise an earlier obtained judgment from country X to prevent abusive re-litigation in country Y? To this question the answer might appear obvious: one reaches for the doctrine of res judicata, that arcane yet fundamental body of law which provides that an earlier judgment is conclusive in a second suit involving the same subject-matter and same legal bases. However, while the doctrine of res judicata is well understood in the domestic setting, it is not entirely obvious how the doctrine applies to foreign judgments to prevent abusive re-litigation before the English courts. Nor is it obvious how the various judgment recognition regimes—in particular the regime established by the Brussels Regulation1—pre-ordain the preclusive effects to which a foreign judgment can give rise if relied upon to prevent abusive cross-border re-litigation.

The Doctrine of Res Judicata Before International Commercial Arbitral Tribunals

2016 ◽  
Author(s):  
Schaffstein Silja
Keyword(s):  
International Law ◽  
National Court ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
Conflict Of Laws ◽  
International Commercial Arbitration ◽  
Res Judicata ◽  
Central Hypothesis ◽  
Private And Public ◽  
Two Stages

There are currently no rules in international commercial arbitration law and practice assuring the coordination between arbitral awards and/or national court judgments rendered in identical or related cases. This lack of coordination is unsatisfactory, particularly in light of the ever-growing tendency of parties to submit their commercial disputes to international commercial arbitration and the increasing complexity of international arbitration. Today, international commercial transactions and the disputes to which they give rise regularly involve multiple parties, contracts and issues. As a consequence, these disputes (or certain aspects of these disputes) are increasingly tried in multiple fora. In such circumstances, difficult issues regarding the res judicata effects of prior judgments or awards are likely to arise before international commercial arbitral tribunals. The central hypothesis underlying this research is that transnational principles of res judicata should be elaborated for international commercial arbitral tribunals. This solution is justified for several reasons. First, it is justified given the differences among domestic laws regarding res judicata and the difficulties surrounding the formulation of appropriate conflict-of-laws rules. Second, it avoids inappropriate analogies between international arbitration proceedings and litigation. Finally, the solution provides guidance and ensures a certain degree of fairness, certainty and predictability, which is expected by arbitration users. This research seeks to achieve its aims in two stages: Part One examines the doctrine of res judicata in litigation, analysing the doctrine as applied in different domestic laws, as well as in private and public international law. Part Two aims to determine whether and to what extent the res judicata doctrine may be applied by international commercial arbitral tribunals. It aims to demonstrate that transnational principles of res judicata should be elaborated and will seek to formulate such principles.

Part II The Doctrine of Res Judicata in International Commercial Arbitration, 5 Search for an Appropriate Approach

2016 ◽  
Author(s):  
Schaffstein Silja
Keyword(s):  
Comparative Law ◽  
Commercial Arbitration ◽  
Conflict Of Laws ◽  
International Commercial Arbitration ◽  
Res Judicata ◽  
The Law

This chapter presents possible approaches in dealing with the problem of the res judicata doctrine in international commercial arbitration, namely the conflict-of-laws approach, comparative law approach, and transnational approach. The conflict-of-laws approach defines clear and generally accepted conflicts-of-law rules allowing arbitrators to determine the law or laws governing res judicata. The determination of conflict-of-laws rules will depend on the characterisation of res judicata as being of substantive or procedural nature. The comparative law approach compares different domestic laws to determine generally accepted res judicata principles common to a majority of states. Lastly, the transnational approach formulates uniform, autonomous res judicata principles that are better adapted to the particularities of international commercial arbitration created for litigation.

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