Res Judicata - Chapter 7 - Post Award Issues: ASA Special Series No. 38
Luca G. RADICATI DI BROZOLO is Professor of Private International Law at the Catholic University of Milan, where he also teaches Law of International Arbitration and Transnational Commercial Law. He is also a Partner of Bonelli Erede Pappalardo, practicing in the Milan and London offices. His practice focuses on international arbitration, as counsel and arbitrator (including investment arbitration as counsel), and litigation, as well as private international law and European law and competition law, with particular emphasis on private damages litigation. Professor Radicati di Brozolo is the author of five books and over one hundred articles on different topics on arbitration, public and private international law, European Union law, antitrust law, telecommunications law, and the co-editor of the leading Italian commentary of the law of arbitration. He regularly speaks at and organizes academic and professional conferences and sits on the board of editors of several journals (including Les Cahiers de l’Arbitrage/The Paris Journal of International Arbitration, Revue de l’Arbitrage and Rivista dell’Arbitrato). He is a Member of the International Court of Arbitration of the ICC; rapporteur of the Committee on International Commercial Arbitration of the International Law Association; Member of the European Commission’s Expert Group on the Interface between Arbitration and the Brussels I Regulation; Chair of the IBA Sub-Committee on the Recognition of Foreign Judgments; Member of the American Law Institute (Consultative Group on the Restatement (Third) International Commercial Arbitration).
Originally from Post Award Issues: ASA Special Series No. 38
The doctrine of res judicata can come into play in relation to international arbitration in a variety of ways. In the context of a discussion devoted to “Post Award Issues”, res judicata is relevant only insofar as it relates to the effects of arbitral awards. In this connection, the issues that arise are whether a given arbitral award has res judicata effect in the same arbitration (in which case the question is that of the effects of partial or interim awards in subsequent phases of the same arbitration), in other arbitrations (whether or not based on the same arbitration agreement) and in proceedings before domestic courts.
Other aspects of the doctrine which do not involve the effects of awards, and are therefore beyond the scope of this discussion, are the res judicata effects in arbitral or in domestic court proceedings of judgments of domestic courts which deal with arbitration (for instance a finding of nullity or inapplicability of an arbitration agreement) and the res judicata effects in arbitration proceedings of national judgments on issues of substance.
All these topics, including those addressed here, have important practical implications and arise relatively frequently. They also raise thorny questions that might seem to fall within the purview of hardnosed specialists of civil procedure, but actually go to the heart of the law and of the system of international arbitration. In the past decade increasing attention has been focused on this topic,1 partly in the wake of a number of well publicized cases.2 Nevertheless, further reflection is in order.
In essence the questions at bar relate to what are usually called the negative (or preclusive) and the positive (or conclusive) effects of res judicata of arbitral awards (which could be more appropriately termed res arbitrata). The first have to do with the effect of preventing further litigation on a matter that has formed the subject of a prior arbitral award. The second have to do with the effects of the decisions contained in an award in other proceedings, whether or not between the same parties.