Conflict of Laws. Judgment of Foreign Countries as Res Judicata

1925 ◽  
Vol 34 (5) ◽  
pp. 549
Keyword(s):  
Conflict Of Laws ◽  
Res Judicata ◽  
Foreign Countries

scholarly journals Realization of res judicata principle in civil proceedings: the experience of foreign countries

2020 ◽  
pp. 220-225
Author(s):  
Tetiana Tsuvina
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Civil Procedure ◽  
Court Decision ◽  
Court Decisions ◽  
Legal Certainty ◽  
Res Judicata ◽  
Foreign Countries ◽  
Negative Effect ◽  
The Subject

  The article is devoted to the analysis of res judicata as an essential element of the legal certainty. Res judicata is considered to be one of the main guaranties of the legal certainty principle in civil procedure which allows a stability of the court decisions in democratic society and increase the public confidence to judiciary.  The author analyzes national characteristics of the realization of the principle of res judicata in civil procedure of foreign countries. The author explores the preclusion effect of court decisions, highlighting two effects of the res judicata principle: positive and negative one. The negative effect of res judicata is aimed at preventing the re-consideration of identical disputes between the parties if the dispute has already been resolved by the court, in turn, the positive effect of res judicata allows the parties to refer to circumstances that have already been established by a court decision in the dispute between them, in new proceedings, where they are involved. It is concluded that there are significant differences in the understanding of this principle in common law and civil law legal systems. The common law countries have a broad understanding of the res judicata principle, which includes positive and negative effects, and is implemented through such institutions as the claim preclusion and the issue preclusion. Civil law countries follow a narrow approach to understanding of res judicata principle, which is limited only by the negative effect and is reflected in the claim preclusion, which blocks filing an identical claim if there is a final court decision on the dispute between the parties. In common law jurisdiction there is a wider conception of the “claim”, according to which it is understood in the context of entire dispute and comprise all claims based on the legal relationship between the parties, whether or not they were the subject of court proceedings. At the same time in civil law countries identity of the claims can be notified with the help of the triple identity test, which contains the identity of the subject of the claim, the identity of the cause of action and the identity of the parties of the claim.

1. Introduction

2016 ◽  
Author(s):  
Jonathan Hill
Keyword(s):  
International Law ◽  
Private International Law ◽  
Potential Conflict ◽  
English Court ◽  
Choice Of Law ◽  
Conflict Of Laws ◽  
Foreign Countries ◽  
Recognition And Enforcement ◽  
The Subject

This introductory chapter begins by explaining the nature of the subject known as conflict of laws or private international law, which deals with cases before the English court which have connections with foreign countries. The foreign elements in the case may be events which have taken place in a foreign country or countries, or they may be the foreign domicile, residence, or place of business of the parties. In short, any case involving a foreign element raises potential conflict of laws issues. The conflict of laws is concerned with the following three questions: jurisdiction; choice of law; and the recognition and enforcement of foreign judgments. The remainder of the chapter discusses the various stages of proceedings which raise conflict of laws issues.

scholarly journals CONFLICT-LEGAL ISSUES OF REGULATION OF DEPRIVATION OF LEGAL CAPACITY OF INDIVIDUALS AND THE IMPORTANCE OF THIS STATUS FOR OTHER BRANCHES OF LAW

2021 ◽  
Vol 6(72) (3) ◽  
pp. 98-104
Author(s):  
A.V. Rudenko ◽  
A.V. Chaika
Keyword(s):  
Russian Federation ◽  
Legal Issues ◽  
Private Law ◽  
Legal Capacity ◽  
Legal Analysis ◽  
Conflict Of Laws ◽  
Foreign Countries ◽  
International Private Law ◽  
The Russian Federation ◽  
The Law

The article reviews the peculiarities of legal capacity of natural persons in international private law relations and the conflict of laws issues concerning the conditions of deprivation of legal capacity on the territory of different countries. The basic collision bindings that enable to determine the law to be applied and the collisions related to the interpretation and application of the relevant rules. The main problems arising in this area, which may serve as grounds for bypassing the law or not applying the rules, are analysed. In the article there is a comparative legal analysis of international normative legal acts and national legal acts that regulate the relations connected with the recognition of legal capacity of a citizen on the territory of different states (Estonia, Germany, Hungary and others are given as an example), and also considered the order of deprivation of legal capacity of citizens in the Russian Federation and foreign countries, , identified gaps and proposed ways to solve the identified problems, which are based on the fundamental principles of international private legal relations, such as providing foreigners with certain special regimes related to the empowerment of them with rights and obligations similar to the rights and obligations of citizens of the Russian Federation. Actions directed at convergence of legislation are seen as the most reasonable and affordable way to solve the problem.

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.

scholarly journals Recognition of the authority of foreign criminal law in the light of UAE law and the provisions of international conventions: الاعتراف بحجية الحكم الجنائي الأجنبي على ضوء القانون الإماراتي وأحكام الاتفاقيات الدولية

2017 ◽  
Vol 3 (2) ◽  
Author(s):  
‏​‏​‏​​‏​‏​​‏​‏​‏​‏​‏​‏ Izzet Mohammed Al-Amri
Keyword(s):  
Criminal Law ◽  
Organized Crime ◽  
The State ◽  
Comparative Approach ◽  
International Agreement ◽  
Negative Effects ◽  
Foreign Matter ◽  
Res Judicata ◽  
Foreign Countries ◽  
International Conventions

Basic principle is that the criminal verdict in a particular state- according to regional base criminal law- does not have any impact beyond the borders of this state, is that the talk Fiqh began to call the necessity to recognize the executive force of criminal judgment foreigner on the territory of the State, especially with the increase in organized crime activities and the difficulty of detection ,, The research aims to show the extent of recognition of the legislator Emirati all of the negative effects and the effects of positive foreign criminal judgment, according to comparative approach between the UAE law and relevant international conventions, showed results that the legislator UAE has admitted strongly res judicata criminal rule of foreign matter in order to avoid trial person per incident twice, and also acknowledged the executive force of criminal judgment foreigner on the territory of the State provided there is an international agreement between the UAE and foreign countries, including the recognition of foreign rule this impact and the condition of reciprocity, it concluded Find out the importance of the recognition of foreign rule executive strongly as prescribed by the penalties and confiscated private necessity for international cooperation in the fight against organized crime penalty.

scholarly journals Civil Claim in Criminal Proceedings From the Standpoint of Res Judicata in Different Areas of Law

2019 ◽  
Vol 13 (2) ◽  
pp. 283-290
Author(s):  
Olga Nikolajchenko
Keyword(s):  
Public Relations ◽  
Criminal Policy ◽  
Civil Procedure ◽  
Criminal Proceedings ◽  
Res Judicata ◽  
Foreign Countries ◽  
Moral Damage ◽  
Traditional Sense ◽  
Russian Law ◽  
The Right

The problems of a claim and a claim as a form of protection for a violated right have a fundamental significance not only in the traditional sense — for the civilistic areas of law - but, especially, for the theory of criminal, criminal procedure and penitentiary law. Economic aspects make it possible to consider a claim to be a preventative instrument of influencing lawbreakers. Procedural aspects of a claim show that it is effective for the observance of the principle of procedural economy. The criminological aspects of a claim lead to the conclusion regarding the necessity of taking into consideration the connections between different areas of law. The author proves that the value of criminal punishment should not be determined independently, but rather depending on the norms, institutions of criminal law and taking into consideration their interconnection and interdependence with the institutions of other areas of law. Such an approach makes it possible to conclude that the institute of claim, which is significant for interactions between different law areas, holds a special place in the legal sphere and acts as an important element of the crime prevention mechanism. It is a challenge for contemporary international and Russian law to strike a fair balance between the interests of the subjects of public relations. In this connection, the claim has another crucial significance — it ensures the right of the victim for the unhindered access to court by restoring his/her rights and compensating the moral damage inflicted by the criminal act. The realization of this right depends on the formulation of the object and grounds for the claim; their specific features are described by the author in the existing research concepts of the theory of claim developed in the civil procedure law research. The objective of protecting the violated rights of the victim is above the division of law into areas; it is formulated in view of the principle of optionality, which is reflected in both civil procedure and civil legislation of Russia. Taking into account the trends in the criminal policy of foreign countries aimed at the attenuation of the punitive side of the criminal justice system and the development of economic measures of influencing crime, the author presents arguments in support of the legal and actual appeal of a civil claim in criminal proceedings based on the established clauses of the procedural theory and the contemporary needs of the law enforcement practice.

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