Every legal order recognizes the need for finality of disputes and it is commonly
known as Res Judicata1
. This principle exists in all jurisdictions and it is aimed at
putting an end to the adjudication of disputes. Some writers suggest it is rooted in
public policy and others take the view as not taking the second bite at the cherry2
principle is important to dispute resolution. Dispute resolution can take many forms
such as litigation, to alternative forms among which is arbitration. The needs of
parties inform the mode of dispute resolution chosen but in recent years the move has
been towards arbitration especially in resolving international transaction disputes. It
has risen to be the preferred mode of dispute resolution not only between parties but
between nations and nations and individuals.
This is due to a number of factors, which includes the ability to choose the law
governing the dispute, the seat, arbitral institution (if one is to be used), arbitrators
and a range of other decisions that shape the procedural makeup and practical conduct
of the arbitration. Arbitration is distinct from other modes of dispute resolution
because of its advantages and the legal force and effect it carries in law. One of such
is the New York Convention 157 countries of the world are signatories to. A
successful convention with the objective of obliging states to recognize arbitration
agreement to the recognition of such resulting awards in any country signatory to it.
However, it is silent on the principle of res judicata. The principle is left at the mercy
of individual nations.
This paper will seek to discuss the Res Judicata principle as a settled doctrine in law
recognized in most jurisdictions and how the recognition of the doctrine in
international arbitration with a global harmonized approach can further help to
reinforce the objectives of the Convention. The paper will shed light on how the
English law applies the doctrine to International Arbitration as one of the leading law
system and place in settling international arbitral disputes.
The International Law Recommendations on Res Judicata in International commercial
arbitration will be analyzed on the impact it has had on international arbitration.
The paper is divided into 4(four) chapters. Chapter 1 will discuss International dispute
processes by focusing on arbitration as the most preferred method of dispute process
with empirical data and explore the reasons behind its recent use some of which are;
the neutrality of the dispute resolution forum, confidentiality, ability to select
arbitrators and enforceability and finality of an arbitral award. Chapter 2 will give a
background to the doctrine, its features, the recognition of the doctrine by the
International Law Association and its recommendations considering the impact it has
made. Thereafter, the New York Convention, its objectives and the absence of the
doctrine in it will be discussed. Chapter 3 will focus primarily on how English law
applies res judicata to International commercial arbitration and the analysis of caselaw on the principle.
Chapter 4 will contain recommendations on how this doctrine can be flexibly applied
to solve issues of parallel arbitrations, and conclude on the need for an international
restatement of the principle to benefit the objectives of the Convention.
Abodunrin, O (2019). The Doctrine of Res Judicata of an International Arbitral Awards. Afribary.com: Retrieved February 29, 2020, from https://afribary.com/works/the-doctrine-of-res-judicata-of-an-international-arbitral-awards
Oluwafikewa, Abodunrin. "The Doctrine of Res Judicata of an International Arbitral Awards" Afribary.com. Afribary.com, 13 Jun. 2019, https://afribary.com/works/the-doctrine-of-res-judicata-of-an-international-arbitral-awards . Accessed 29 Feb. 2020.
Oluwafikewa, Abodunrin. "The Doctrine of Res Judicata of an International Arbitral Awards". Afribary.com, Afribary.com, 13 Jun. 2019. Web. 29 Feb. 2020. < https://afribary.com/works/the-doctrine-of-res-judicata-of-an-international-arbitral-awards >.
Oluwafikewa, Abodunrin. "The Doctrine of Res Judicata of an International Arbitral Awards" Afribary.com (2019). Accessed February 29, 2020. https://afribary.com/works/the-doctrine-of-res-judicata-of-an-international-arbitral-awards