To some extent, we can establish a parallel between the principles of “sanctity of contracts”, encapsulated by the Latin maxim “pacta sunt servanda”, and the principle of finality and stability of arbitral awards having the effects of “res judicata”. Once a case is decided, the decision produces its effects, and those effects must remain untouched. At the same time, we have also learned from the Roman law that a decision has the power to ‘facit de albo nigrum aequat quadrata rotundis’, that is, to turn white into black, and square into circle. In short, a court decision—and, therefore, an arbitral award—produces final effects, as powerful as introducing a change in the legal system.
Consistent with this view, the literature and authority related to the “res judicata” effects of an arbitral award show us that a final award may only be subject to modification or revocation under very strict circumstances, such as awards obtained by fraud or tainted by other criminal actions.
However, some jurisdictions such as France and Switzerland have been allowing an extension of the subsequent revocation or modification of an arbitral award in cases other than awards obtained by fraud or tainted by similar actions. Indeed, on one occasion, the Swiss Federal Tribunal admitted that “a revision may be sought when the petitioner subsequently discovers significant facts or decisive evidence which he could not adduce in the previous proceedings to the exclusion of facts and evidence which emerged only after the award. The new facts must be significant, i.e. they must be suitable to change the factual basis of the award so that an accurate legal evaluation could lead to another decision.”