The Extended Doctrine of Res Judication in International Commercial Arbitration

Abstract

It is widely accepted that the doctrine of res judicata attaches to an international commercial arbitration award. The res judicata doctrine, although universally accepted, is applied inconsistently in common and civil law jurisdictions. The common law has adopted a broader notion of res judicata than civil law jurisdictions. This extended doctrine precludes a party from litigating a subject matter, which could and should have been brought in the prior proceedings. As to raise this subject matter would be an abuse of process. This extended doctrine has never been applied as a point of ratio decidendi in international arbitration, however, its application has been endorsed by the International Law Association. This paper critiques whether the extended doctrine of res judicata is appropriate in international commercial arbitration. Through a comparative review of res judicata and an analysis of decisions that have addressed this issue, it is evident that the doctrine has been applied inconsistently and may have a detrimental effect on the objectives of international commercial arbitration. The paper will conclude that the extended doctrine of res judicata strengthens the finality and efficiency of international commercial arbitration and therefore should be adopted.