Originally from Reflections on International Arbitration - Essays in Honour of Professor George Bermann

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The doctrine of res judicata is well established in investment arbitration. Recognised by domestic courts, it is considered a prime example of a general principle of law and features prominently in the jurisprudence of the International Court of Justice (“ICJ”). Many investment tribunals have equally relied on res judicata and the so-called triple identity test, developed in earlier dispute settlement practice and specifically endorsed by the Permanent Court of International Justice (“PCIJ”)’s jurisprudence.
The main policy reason for this doctrine is clear: litigation should come to an end once a final decision has been rendered. Thus, the finality of a decision does not only imply that it is binding and enforceable, it also entails that the dispute should not be re-litigated.

This latter, often so-called negative effect of res judicata serves not only an obvious general, public interest not to waste resources on litigation where a solution has already been reached, but also the particular interests of defendants who should not be re-exposed to claims that have already been decided upon. In addition, however, it deprives claimants of the opportunity to be heard again.

It is this preclusive effect which is sought by res judicata and justified by the fact that claims have already been decided upon and that the parties already had an opportunity to be heard. This latter aspect – that the parties had an opportunity to litigate their claims – is, of course crucial to ensure that the principle of res judicata does not deprive litigants of their right of access to justice. 

The following thoughts are intended to show how closely intertwined with fundamental policy decisions the sometimes very technical aspects of the application of the res judicata doctrine are. This is particularly the case when it comes to decisions on jurisdiction and not final awards.