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Journal articles on the topic 'Res judicata and exequatur'
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1
Hovaguimian, Philippe. "The Res Judicata Effects of Foreign Judgments in Post-Award Proceedings: To Bind or Not to Bind?" Journal of International Arbitration 34, Issue 1 (2017): 79–106. http://dx.doi.org/10.54648/joia2017005.
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This comparative analysis explores the question of preclusive effects arising from arbitration related judgments, particularly when a foreign court has already ruled upon an issue relevant to the grounds for refusal under Article V of the 1958 New York Convention. It argues that arbitration-related judgments like exequatur or non-annulment decisions, along with the res judicata and estoppel effects arising from them, can be subject to recognition in other countries. The article thereby rejects some of the views contending that various legal obstacles stand in the way of such recognition, including its compatibility with the 1958 New York Convention. However, risks of forum shopping and undue imbalances in the parties’ rights ultimately support restricting this recognition to judgments rendered at the arbitral seat only. Such judgments should be able to preclude the re-litigation of identical issues in non-seat countries as a matter of res judicata and estoppel.
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Merchán Murillo, Antonio. "Exigencias formales para el reconocimiento y ejecución de sentencias conforme al convenio relativo a la asistencia judicial en el ámbito civil y mercantil firmado entre Argelia y España: notas al auto de la AP de Valencia, de 23 de abril de 2018 = Formal requirements for the recognition and enforcement of judgments in accordance with the convention on judicial assistance in civil and commercial matters signed between Algeria and Spain: notes to the judicial decree of the provicial court of Valencia, of 23 of april of 2018." CUADERNOS DE DERECHO TRANSNACIONAL 11, no. 1 (2019): 850. http://dx.doi.org/10.20318/cdt.2019.4659.
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Resumen: En el presente estudio se pone de manifiesto las necesidades formales para el reconocimiento y ejecución de sentencia dictada por un Tribunal argelino. No obstante, desde la perspectiva de la cosa juzgada, debe ponerse de manifiesto en este asunto la incidencia de la decisión previa de divorcio.Palabras clave: auto; recurso de apelación; procedimiento de exequátur; Audiencia Provincial.Abstract: The present study shows the formal needs for the recognition and execution of a judgement issued by an Algerian court. However, from the perspective of the res judicata, the incidence of the previous divorce decision must be shown in this matter.Keywords: judicial decree; appeal; exequatur procedure; Provincial Court.
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JUVELIN, Rezara. "Effectiveness of the Recognition and Enforcement of the OHADA`S Arbitral Award." International Journal of Social Science and Human Research 05, no. 03 (2022): 1159–65. https://doi.org/10.5281/zenodo.6396566.
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OHADA is amongst an international organization consists of arbitral tribunal within regions in Africa to deal with international disputes on investment and commercial related. Henceforth, the purpose of the study examines the effectivity of arbitral awards enforcement under the perspectives of OHADA arbitration rules. The study axed through qualitative approach by interpreting legal rules, analyzing cases and commenting the weakness of the charter in terms of enforcement and recognition of arbitral awards. The decision of OHADA arbitral tribunal shall contain intrinsically legal effect to country members, however it leads problematics as the enforcement and recognition rules may be different in every country involved. Hence, the study interpreted the legal rules concerning enforcement and recognition of arbitral awards, effectiveness of the rules. In addition it exerted also the challenges and significant recommendation for improving the arbitration rules on enforcement of arbitral awards. It is found the weakness of the arbitral awards locates on refusal of concerned State to enforce the awards under the domestic law for undefinable conflict of interest
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Kennett, Wendy, Flora Triantafyllou-Albanidou, Peter Fitger, Remo Caponi, and Ernst Gras. "Res judicata." European Review of Private Law 6, Issue 1 (1998): 105–42. http://dx.doi.org/10.54648/199052.
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Both judgements of the German Federal Supreme Court concern the effects of final judgements on later proceedings. A decisive factor is whether the issues arising in the later proceedings are to characterised as new facts which are therefore not affected by the earlier judgement. The judgement of the Supreme Court of 14.7.1995 had the following facts: The owners of a piece of land sued in the first proceedings for a declaration that the owners for the time being of that piece of land had an easement in the form, inter alia, of a right to come and go on part of a road over neighbouring property, and as a subsidiary claim they sought a right of a way as a necessity. The claim as to the right of way was dismissed by means of a binding judgement, because the stretch of road was held to be part of the public one. But this decision was quashed, and after the first proceedings had ended, it was established in a binding judgement of an administrative court, that the road was not a public highway. The same plaintiffs therefore brought new proceedings against the same defendant seeking to ensure that their right to come and go over the disputed stretch of road was not impeded, and as a subsidiary claim that a right of way of necessity should be recognised. According to the Supreme Court, the earlier judgement did not stand in the way of a judgement in these later proceedings. The headnote to the case states: 'If an action for a declaration concerning the existence of a traditional right of way is in part dismissed because there is a public highway there anyway, and if later the administrative authorities and courts deny the existence of a public highway, the res judicata effect of the earlier judgement does not hinder a new action based on the existence of the easement.' The judgement of the Supreme Court of 16.10.1995 had the following facts: A concluded a contract in 1988 under which he bought shares in B for 9360, DM payable in 124 monthly installments. The contract was only partly performed by A. By a final judgement of 4.11.1992, A was required to pay a total of 8256,DM. In a solicitor's letter of 29.3.1993, A exercised his purported right to withdraw his agreement to the contract in reliance on the Law on the rescission of doorstep sales, arguing that the employee of V-GmbH which B had entrusted with the sale of its shares, and in whose home A had given his agreement to the contract, had not given him the required information about his right of rescission, but had kept it to himself with tortious intent. The withdrawal of his agreement formed the basis of an action by A to prevent execution of the agreement formed the basis of an action by A to prevent execution of the judgement of 4.11.1992 (Vollstreckungsgegenklage). In the earlier proceedings, A had not disputed B's claim that information about his right of rescission had been given to A, and that he had confirmed this by by his signature. A took the view that enforcement of the earlier final judgement was impermissable because he had now withdrawn his agreement to the contract which formed the basis of that judgement. In addition he argued that he had a claim based on damage caused by action contrary to bonos mores, because B was vicariously liable for the fraudulent actions of V-GmbH. The landgericht dismissed the Vollstreckungsgegenklage. A's appeals to the Court of Appeal and the Supreme Court were unsuccessful. In this case, in the opinion of the Supreme Court, the res judicata effect of the earlier judgement hindered a judgement in favour of A in later proceedings. The withdrawal of agreement to a contract under the Law on the rescission of doorstep and other similar transactions (HWiG) was not a new fact within the meaning of 767(2)ZPO; it was not to be characterised as an event creating or transforming rights, but rather as a defence to a claim.
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Alexeeva, T. M. "Res judicata properties in the context of decisions of the European Court of Human Rights: correlation and scope." Juridical Journal of Samara University 7, no. 1 (2021): 29–39. http://dx.doi.org/10.18287/2542-047x-2021-7-1-29-39.
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In this article, the author considers the concept of res judicata. It is concluded that res judicata has two main properties: presumption of the truth of the judgment, and prejudice. The author examines the presumption of the truth of the judgment, and prejudice arising from the concept of res judicata in relation to the decisions of the European Court of Human Rights. The author comes to the conclusion that the decisions of the European Court of Human Rights as res judicata have the property of a presumption in full measure. At the same time, due to the expanding competence of the Constitutional Court of the Russian Federation, the power of res judicata of the European Court of Human Rights may be limited. With regard to the second property of res judicata - prejudice, it is concluded that the decisions of the European Court of Human Rights res judicata do not have prejudice of evidentiary value. However, decisions of the European Court of Human Rights res judicata have the property of prejudicial competence of an international (interstate) agency. In this sense, according to the author, res judicata has an intersectoral prejudicial meaning.
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Pinos, Timothy. "Res Judicata Redux." Osgoode Hall Law Journal 26, no. 4 (1988): 713–56. http://dx.doi.org/10.60082/2817-5069.1804.
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Yaffe, Nathan. "Transnational Arbitral Res Judicata." Journal of International Arbitration 34, Issue 5 (2017): 795–833. http://dx.doi.org/10.54648/joia2017038.
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Commercial arbitral awards are universally recognized to give rise to res judicata, but confusion reigns over what law applies to the res judicata effect of a prior arbitral award asserted before a subsequent tribunal. National res judicata laws diverge on key questions such as the availability of issue estoppel and the construction of the ‘triple identity’ test. Yet the normal tools used to manage divergence in potentially applicable laws – choice of law and codification – have failed to work when it comes to the res judicata effect of awards. I argue the answer is to adopt a transnational approach to res judicata in arbitration. Although this approach has support in principle, questions remain about how it would work in practice. I propose that a modified version of Gaillard’s ‘transnational rules method’ contains the seeds of a promising answer. Specifically, tribunals could look to both other commercial tribunals’ awards, as well as International Centre for Settlement of Investment Disputes (ICSID) and International Court of Justice (ICJ) case law on res judicata, to develop a sui generis transnational preclusion standard for international arbitration. This is consistent with informal practices arbitrators have developed with respect to other interstitial issues where choice of law processes do not yield satisfactory results. Finally, I evaluate the implications of taking this approach, as well as its prospects for success.
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Groussot, Xavier, and Timo Minssen. "Res Judicata in the Court of Justice Case-Law." European Constitutional Law Review 3, no. 3 (2007): 385–417. http://dx.doi.org/10.1017/s1574019607003859.
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Forms of res judicata – Unwritten principle of EU law – National procedural autonomy v. EC supremacy – Revision of decisions v. state liability – Finality of administrative decisions v. judicial decisions – Higher respect for judicial decisions than for administrative decisions – Res judicata not absolute – ECJ itself under demands of legal certainty – Analogy between res judicata rules and rules of direct and indirect effect.
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Voser, Nathalie. "Recent Developments on the Doctrine of Res Judicata in International Arbitration from a Swiss Perspective: A Call for a Harmonized Solution." ASA Bulletin 33, Issue 4 (2015): 742–79. http://dx.doi.org/10.54648/asab2015059.
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The Swiss Federal Tribunal has recently rendered three decisions addressing the issue of res judicata in the context of international arbitration, opening the door to possible developments of the doctrine of res judicata as applied in international arbitrations seated in Switzerland. This article elaborates on the Swiss Federal Tribunal's latest decisions on the topic and endeavors to challenge some of the core principles of the doctrine of res judicata as developed in the Swiss practice. The authors propose that arbitral tribunals apply the provisions of the lex arbitri (instead of Article II(3) New York Convention) when examining the requirement of recognition of a foreign state court judgment where an exceptio arbitri was raised in the first proceedings. The article also puts in question one of the key holdings of the Swiss Federal Tribunal, i.e. the application of the Swiss lex fori to the issue of res judicata by an arbitral tribunal seated in Switzerland. Rather than the strict principles of res judicata as developed by the Swiss Federal Tribunal, the authors suggest that arbitral tribunals seated in Switzerland should use their procedural discretion and develop autonomous rules which are more generally recognized and thereby seek to define the core content of the principle of res judicata. In doing so, and in the absence of internationally applicable rules, arbitral tribunals can promote harmonized principles of res judicata better designed for international arbitration than particular national rules.
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Zarzalejos Herrero, Jaime. "Análisis comparado de la cosa juzgada en Derecho inglés = Comparative analysis of the res judicata doctrine under English Law." CUADERNOS DE DERECHO TRANSNACIONAL 10, no. 1 (2018): 489. http://dx.doi.org/10.20318/cdt.2018.4131.
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Resumen: El estudio tiene por objeto el análisis comparado entre la regulación de la doctrina de la res judicata o cosa juzgada en Derecho inglés y en el ordenamiento jurídico español. En primer lugar, el artículo analiza la cosa juzgada –y otras figuras preclusivas que producen efectos similares– desde la perspectiva Derecho inglés. En segundo lugar, se abordará su regulación en Derecho español. Finalmente, el trabajo expone una serie de conclusiones en donde se pone de manifiesto las diferencias y similitudes sobre su regulación en ambos ordenamientos.Palabras clave: res judicata, estoppel, Henderson rule.Abstract: The paper analyses the regulation of the res judicata doctrine under English and Spanish law from a comparative perspective. The paper first examines the regulation of the res judicata doctrine –and other pleas which have similar effects– under English law. Secondly, the paper reviews its regulation under Spanish law. The paper ends drawing some conclusions on the differences and similarities under both legal systems.Keywords: res judicata, estoppel, Henderson rule.
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Theofanis, Rosa. "The doctrine of Res Judicata in International Criminal Law." International Criminal Law Review 3, no. 3 (2003): 195–216. http://dx.doi.org/10.1163/157181203322599101.
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AbstractRes judicata is well-settled as a general principle of international law. But the rules of res judicata in international criminal procedure are undeveloped. Recent cases from the ad hoc criminal tribunals for the former Yugoslavia and Rwanda have added to the understanding of res judicata in international law - demonstrating the risk that new rules of res judicata will implicitly incorporate either a common-law or civil-law definition of what the "law" is. Analysis of issues considered in recent Tribunal jurisprudence - particularly the questions of review and reconsideration - locates potential hazards in the development of the law and provides guidance for the application of the ICC statute.
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Heller, Thomas Allan. "The Current Status of the Preclusive Effects of Judgments in the Federal Court System of the United States of America." Lexonomica 12, no. 2 (2020): 163–210. http://dx.doi.org/10.18690/lexonomica.12.2.163-210.2020.
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Res judicata law in the United States of America has a long, extensive and complex history. The aim of this paper is to provide at least a working summary of some of the most important aspects of the current res judicata law in the federal court system of the United States. The flexible discovery, pleading and joinder rules have given rise to more expansive res judicata law. The paper will discuss what exactly constitutes a judgment; how the federal courts deal with the finality of judgments in multiple parties and multiple claim cases; the final judgment rule; the form of judgments; the methods to enter judgments and significance of entry of judgments; together with a detailed overview of the doctrine of res judicata itself, including the separate, but related twin doctrines of claim preclusion and issue preclusion.
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Tsuvina, Tetiana. "Realization of res judicata principle in civil proceedings: the experience of foreign countries." Law Review of Kyiv University of Law, no. 1 (April 15, 2020): 220–25. http://dx.doi.org/10.36695/2219-5521.1.2020.44.
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 The article is devoted to the analysis of res judicata as an essential element of the legal certainty. Res judicata is considered to be one of the main guaranties of the legal certainty principle in civil procedure which allows a stability of the court decisions in democratic society and increase the public confidence to judiciary. 
 The author analyzes national characteristics of the realization of the principle of res judicata in civil procedure of foreign countries. The author explores the preclusion effect of court decisions, highlighting two effects of the res judicata principle: positive and negative one. The negative effect of res judicata is aimed at preventing the re-consideration of identical disputes between the parties if the dispute has already been resolved by the court, in turn, the positive effect of res judicata allows the parties to refer to circumstances that have already been established by a court decision in the dispute between them, in new proceedings, where they are involved.
 It is concluded that there are significant differences in the understanding of this principle in common law and civil law legal systems. The common law countries have a broad understanding of the res judicata principle, which includes positive and negative effects, and is implemented through such institutions as the claim preclusion and the issue preclusion. Civil law countries follow a narrow approach to understanding of res judicata principle, which is limited only by the negative effect and is reflected in the claim preclusion, which blocks filing an identical claim if there is a final court decision on the dispute between the parties.
 In common law jurisdiction there is a wider conception of the “claim”, according to which it is understood in the context of entire dispute and comprise all claims based on the legal relationship between the parties, whether or not they were the subject of court proceedings. At the same time in civil law countries identity of the claims can be notified with the help of the triple identity test, which contains the identity of the subject of the claim, the identity of the cause of action and the identity of the parties of the claim.
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Koen, L. "Is a jurisdictional decision in international investment law res judicata?" Tydskrif vir die Suid-Afrikaanse Reg 2024, no. 4 (2024): 617–28. http://dx.doi.org/10.47348/tsar/2024/i4a1.
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Die internasionale beleggingsregstelsel word toenemend gekritiseer as gevolg van ’n persepsie dat daar wanbalanse in die stelsel is wat in beleggers se guns werk, wat aanleiding gee tot omstrede debatte oor die regte en verpligtinge van partye. Een terugkerende kwessie draai om gevalle van parallelle prosesse, geïllustreer deur sake soos CME Czech Republic BV v The Czech Republic en Lauder v Czech Republic, waar beleggers en meerderheidsaandeelhouers afsonderlik identiese eise voor beleggingstribunale ingestel het. Die beginsel van res judicata, gewortel in die versekering van finaliteit en prosedurele doeltreffendheid, het na vore gekom as ’n potensiële oplossing om parallelle litigasie te voorkom. Nietemin bly die toepassing daarvan in beleggingsarbitrasie omstrede, veral ten opsigte van besluite oor jurisdiksie. In hierdie bydrae word die kompleksiteite rondom res judicata in beleggingsarbitrasie krities ondersoek, met die fokus op die toepassing daarvan op jurisdiksionele besluite. Die artikel ontleed debatte oor die vraag of sodanige besluite binne die tribunaal die effek van res judicata moet hê en ondersoek scenario’s waar tribunale ongunstige toekennings oor jurisdiksie uitreik. Deur analise van relevante sake en regsbeginsels word met hierdie artikel daarna gestreef om prosedurele doeltreffendheid met regverdigheid te versoen, sonder om die afdwingbaarheid van tribunale se beslissing te ondermyn of om ’n party van die reg te ontneem om beswaar aan te teken waar nuwe feite ’n tribunaal van jurisdiksie ontneem. Die beginsel van res judicata, alhoewel bekend in nasionale reg, neem unieke dimensies aan in beleggingsarbitrasie. Die toepassing van res judicata verskil tussen ICSID- en nie-ICSID-prosedures, met implikasies vir jurisdiksionele uitdagings en die finaliteit van besluite. Tribunale het geworstel met die vraag of besluite orr jurisdiksie as finaal en bindend beskou moet word, wat tot teenstrydige interpretasies en prosedurele onsekerhede gelei het. In hierdie artikel word die rigiede toepassing van res judicata op jurisdiksionele besluite gekritiseer en word geargumenteer ten gunste van ’n meer genuanseerde benadering wat prosedurele doeltreffendheid met partye se regte sal balanseer. Dit beklemtoon die praktiese uitdagings van die toepassing van res judicata op aanhoudende prosesse en stel alternatiewe meganismes voor om prosedurele regverdigheid te beskerm. Deur die praktiese implikasies van res judicata te ondersoek, dra hierdie artikel by tot verdere debat binne beleggingsarbitrasie en bied insigte in die versoening van teenstrydige belange in die nastrewing van billike geskilbeslegting.
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Phee, Jung-Hyun, and Jun-Ho Bae. "res judicata of Countervailing Defense." Wonkwang University Legal Research Institute 39, no. 1 (2023): 159–81. http://dx.doi.org/10.22397/wlri.2023.39.1.159.
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Article 216 of the Civil Procedure Act stipulates that in paragragh 1, a final judgement has res judicata only if it is included in the order. Even if the judgement is confirmed, if the judgement in the grounds of judgement is not binding, the dispute may be reproduced and the judgements in the grounds of judgement may be contradictory, so it is a question of whether to recognize the res judicata in the grounds of judgement. On the other hand, as an exception, the determinatioin of whether or not a claim claiming offset in paragragh 2 is established is determined to have res judicata only for the amount opposed to offset. The purpose of acknowledging the res judicata in the court’s judgement on the offset claim is that if the res judicata is not recognized, the dispute over the existence of the plaintiff’s claim will be transformed into a dispute over the existence of the counterclaim filed in another lawsuit, preventing the counterclaim from double exercising the counterclaim. Therefore, in order to understand the legal principles according to the purpose in detail, this paper examined the res judicata power of the countervailing defense. First, the requirements for recognizing res judicata will be divided into automatic bonds and passive bonds. In the former, we will examine whether the court's practical judgement on automatic bonds is necessary, whether the precedent (suspension condition theory) that the judicial effect of the countervailing defense is appropriate, and whether the expression of intention to set off, which is the originally effective time, reaches the other party (revocation condition theory). In the latter case, the existence of passive bonds and whether the passive claims are claims judged as litigation items (or equivalent thereto) are problematic. And, in the case where the defendant makes a defense of set-off, we will review whether it is lawful for the plaintiff to submit a set-off (namely, litigation set-off and non-litigation set-off) as a re-defense. This will be considered in consideration of not only the substantive legal aspect that passive claims must exist, but also the litigation policy aspect of maintaining the stability of the litigation process and eliminating complexity. In addition, we examine the objective scope of the substrate power recognized in countervailing defense, especially if the automatic bond exceeds the passive bond amount, and if the court recognizes only a part of the claim (manual) bond amount, some of the multiple automatic bonds are recognized and some are not recognized. Furthermore, we will look at the positive and negative theories on whether res judicata are recognized in countervailing disputes other than litigation.
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Manish, Kumar. "RES JUDICATA UNDER SECTION 11 OF THE CODE OF CIVIL PROCEDURE." International Journal of Multidisciplinary Research and Modern Education (IJMRME) 8, no. 2 (2022): 55–57. https://doi.org/10.5281/zenodo.8075950.
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Res judicata is a legal doctrine that prevents the same issue from being litigated multiple times between the same parties. Section 11 of the CCP (CPC) embodies this principle, aiming to promote judicial economy, finality of judgments, and prevent inconsistent decisions. This research paper examines the elements of res judicata under Section 11, the scope and applicability of the doctrine, and its relevance in contemporary legal scenarios. Additionally, the paper explores various judicial interpretations and the challenges faced by courts in applying res judicata. Finally, suggestions for reform are proposed to ensure the effectiveness of Section 11 in achieving its intended objectives.
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Pilkov, K. M. "Res judicata and related doctrines of finality of judgments: comparative aspect." Analytical and Comparative Jurisprudence, no. 3 (February 20, 2022): 15–21. http://dx.doi.org/10.24144/2788-6018.2021.03.2.
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The article contains the results of the analysis of the development of res judicata doctrine into a multicomponent doctrine with different meaning in different legal systems of the world, as well as points out the difficulties of distinguishing this doctrine among other doctrines that have claim preclusive or issue preclusive effects. The article focuses on the broad and narrow meaning of res judicata, procedural links that this principle may have with the application of the estoppel rule in court proceedings. The article pays special attention to three doctrines related to res judicata: full faith and credit; election of remedies and law of the case doctrines. The doctrine of full faith and credit in the US procedural law is viewed as a branch of res judicata. In contrast to res judicata, the doctrine of election of remedies is largely based not on respect for the finality of the judgment, but on the principle of estoppel and thus might be applied in order to bar a subsequent cause of action containing claims that are inconsistent with remedies prayed for in the already considered cause of action, rather than to bar the relitigation of already litigated case. The law of the case doctrine, as it has been developed in the US procedural law and adopted in some other countries, in particular India, is related to res judicata in that both are aimed at ensuring legal certainty and the stability of court judgments. However, unlike res judicata, the law of the case doctrine to some degree allows the discretion of the court, or rather its application is discretion based, it is purely procedural and concerns the stability and consistency of the court's rulings in the same case, rather than the conclusive effect of the final judgment for subsequent proceedings. The article argues that these doctrines, especially the election of remedies doctrine and the law of the case doctrine or their elements can be used to address the problems of fairness and consistency of judgments in procedural law.
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Semakula, Joel. "Res Judicata in Judicial Review." Judicial Review 25, no. 4 (2020): 307–20. http://dx.doi.org/10.1080/10854681.2020.1871716.
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Ilyin, Anton V. "Res Judicata in Criminal Procedure." Zakon 20, no. 8 (2023): 95–110. http://dx.doi.org/10.37239/0869-4400-2023-20-95-110.
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Res Judicata in criminal procedure, which prescribes respect for the legal force of judicial acts adopted in civil proceedings, ensures not only the right to judicial protection and the principle of legal certainty, but also the impossibility of resolving civil disputes about the law within the framework of criminal proceedings. As a result, the scale of the impact of the court decision on the criminal process should be determined precisely from the point of view of the limits of the legal force of the court decision in a civil case, and not from the point of view of what signs of corpus delicti can be established on its basis. The article examines the questions of what the objective limits of res judicata are, whether it can have subjective limits, and what significance the presumption of innocence has in establishing these limits.
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Caraman, Ion. "The difference between the power of res judicata and the authority of res judicata." Journal of the National Institute of Justice, no. 3(58) (October 2021): 8–13. http://dx.doi.org/10.52277/1857-2405.2021.3(58).01.
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The court’s decision is a final product of the judicial activity, aimed to ensure the protection of the persons contested rights, freedoms or legitimate interests. However, in order to establish an effective protection, it is important that the court decision is final has the authority of res judicata. In specialized literature, configured two concepts regarding res judicata. In this article, are highlighted the criteria that delimit this two concepts and the practical and theoretical necessity of such delimitation.
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Streit Lucena, Alice, and Alberto Barreto Goerch. "COISA JULGADA INCONSTITUCIONAL NOS JUIZADOS ESPECIAIS: A VEDAÇÃO LEGAL DA AÇÃO RESCISÓRIA E O USO DA AÇÃO DE DESCUMPRIMENTO DE PRECEITO FUNDAMENTAL COMO SUCEDÂNEO PERMITIDO NA ADPF 615 / UNCONSTITUCIONAL RES JUDICATA AT SPECIAL CIVIL COURTS: LAW PROHIBITION OF TERMINATION ACTION AND REQUEST FOR NON-COMPLIANCE OF FUNDAMENTAL PRINCIPLE AS ALLOWED AT ADPF 615." RFD- Revista da Faculdade de Direito da UERJ, no. 42 (January 24, 2023): 1–23. http://dx.doi.org/10.12957/rfd.2023.63347.
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Resumo: O estudo analisa a possibilidade ou não da desconstituição da coisa julgada inconstitucional quando formada nos Juizados Especiais, considerando a decisão cautelar proferida pelo Ministro Luís Roberto Barroso, do Supremo Tribunal Federal, na Arguição de Descumprimento de Preceito Fundamental (ADPF) nº 615. Questiona-se se a existência da coisa julgada, ainda que inconstitucional superveniente, nos Juizados Especiais, cuja previsão legal específica veda o uso da ação rescisória, permite o cabimento da Arguição de Descumprimento de Preceito Fundamental. O tema visa, através do método dedutivo, analisar a expressão “coisa julgada inconstitucional” e as formas de desconstituição da coisa julgada permitidas no ordenamento jurídico processual civil brasileiro, bem como, a partir desta premissa geral, verificar o posicionamento do Ministro Roberto Barroso na ADPF 615, sob o ponto de vista processual, partindo para uma análise de eventual identificação de ativismo judicial. Utilizou-se também o método histórico para compreender a formação da referida expressão, e o método monográfico ou de estudo de caso ao analisar a decisão judicial. A coisa julgada inconstitucional, tida como formada por uma decisão contrária à Constituição, é uma das modalidades de relativização desse instituto processual. Dentre as formas de desfazimento da coisa julgada o CPC admite a ação rescisória nessas situações. Contudo, em se tratando de Juizados Especiais, a lei veda o cabimento da ação rescisória. Considerando esse contexto e as decisões proferidas contrárias ao Distrito Federal para pagamento de uma gratificação aos professores da rede pública de ensino, o Governador impetrou ADPF, que tramita sob o nº 615 no Supremo Tribunal Federal, para afastar a coisa julgada constituída antes de um entendimento desfavorável a ela ter se firmado em Ação Direta de Inconstitucionalidade no Tribunal de Justiça do Distrito Federal.Palavras-chave: Coisa julgada inconstitucional. Juizados Especiais. Ação Rescisória. Arguição de Descumprimento de Preceito Fundamental. Abstract: The scope of this article is the analysis of res judicata being or not abolished from unconstitutional res judicata done at the Special Civil Court, considering protective order pronounced by Supreme Court Judge Luís Roberto Barros at the request for non-compliance of fundamental principle (ADPF) number 615. The problem to be resolved is whether res judicata, conceived at Special Civil Court, should exist even before an unconstitutional verification which termination action is prohibited by law, allowing ADPF instead, as decided by the Supreme Court. The focus is to analyze, through the deductive method, “unconstitutional res judicata” expression and techniques of invalidate it in the Brazilian Civil Procedural Law (CPC), as well to verify Supreme Court Judge Luís Roberto Barroso statement at ADPF 615, by the processual perspective, examining the possibility of judicial activism. The historical analysis method was used to comprehend how the expression was established, and the monographic method or case of study assisted to analyze the judicial decision. The unconstitutional res judicata, defined as a decision against the Constitution, is one of the ways legal doctrines considered as relativization of this procedural institute, recognized as a major lust. As a common form of undoing res judicata is querela nullitatis, which hypothesis are restricted; sentence fulfillment impugnation, as foreseen at CPCP in cases of unconstitutional res judicata composed after a Constitutional review; and termination action, which is the main practice of res judicata unconstitutional. Therefore, about unconstitutional res judicata, CPC allows termination action in those situations. However, Special Civil Court, article 59 from law 9,099, from 1995, severely outlaws’ termination action. Bearing this information in mind and decision against Federal District Government to pay a benefit to teachers of public education, the Governor started an ADPF at Federal Supreme Court which was processed by number 615, to set aside a res judicata born before a judge unfavorable in a constitutional review at Federal District Court of Law. The analysis discusses the judicial activism.Keywords: Unconstitutional res judicata. Special Civil Courts. Termination action. Request for non-compliance of fundamental principle.
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Pilkov, K. "Res judicata, finality and legal effect of the judgment: interrelation between concepts." Uzhhorod National University Herald. Series: Law, no. 71 (August 25, 2022): 44–48. http://dx.doi.org/10.24144/2307-3322.2022.71.6.
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The article focuses on making distinction between the concepts of res judicata, finality and legal effect of judgments, as these terms are often used in legal literature and case law as interchangeable categories, sometimes as components of each other, sometimes as necessary conditions or consequences of each other.
 The article points out that the concept of ‘finality’ is often used in two contexts. The first one focuses on the properties of a court decision as an act of judiciary, which completes the resolution of a particular cause of action or determination of a particular issue in a specific proceeding, i.e. it is a matter of finality of the judgment in the same proceeding in which it was issued. Thus, finality is one of the preconditions for res judicata to be applied as the principle in subsequent court proceedings, but not the principle itself. The second context of use of ‘finality’ concerns the effect of a judgment in other proceedings and with this meaning ‘respect for finality’ is synonymous with ‘respect for res judicata’. The author also draws attention to the fact that the term ‘res judicata’ is used in two ways: either to denote the known principle which takes effect in the rules on legal consequences of a final judgment taken in one proceeding, in subsequent proceedings; or to indicate the final judgment, which affects the relationships of the parties beyond the court case in which it was adopted, i.e. establishes legal certainty for the parties in their relationships and, accordingly, may create the above-mentioned preclusive effect in other court proceedings. The article also substantiates the thesis that the category of ‘legal effect’ with respect to a judgment, although inherited from Soviet doctrine, still remains practically useful. It does not confront or compete with res judicata, and therefore remains appropriate to be used, above all, in order to specify a moment in time when the judgment becomes final and binding and, in some cases becomes res judicata.
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Taufiq, Ahmad Ivan. "Tinjauan Hukum Acara Perdata terhadap Putusan Ekseptio Res Judicata dalam Perkara Perceraian." UNISKA LAW REVIEW 1, no. 1 (2020): 54. http://dx.doi.org/10.32503/ulr.v1i1.554.
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Penelitian ini mengkaji tentang putusan verstek hakim terhadap perkara perceraian Nomor 1596/Pdt.G/ 2000/PA.Kab.Kdr dan Nomor 2322/Pdt.G/2012/PA.BL sudah memenuhi unsur ekseptio res judicata serta kekuatan hukum ekseptio res judicata perkara perceraian dengan Nomor 1596/Pdt.G/2000/PA.Kab.Kdr dan Nomor 2322/Pdt.G/2012/ PA.BL ditinjau dari sistem peradilan di Indonesia. Metode yang digunakan dalam penelitian ini yaitu yuridis normatif. Hasil penelitian ini menunjukan bahwa putusan verstek antara dua lembaga peradilan agama yakni Pengadilan Agama Kabupaten Kediri dan Pengadilan Agama Blitar sudah memenuhi unsur-unsur ekseptio res judicata dan kekuatan hukumnya berakibat pada penggunaan akta cerai yang dikeluarkan pihak panitera pengadilan agama harus ditolak oleh pegawai pencatat nikah sebagai hukuman bahwa hakim tidak boleh memutus perkara yang telah diputus sebelumnya oleh subyek, objek, dan alasan yang sama.
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Soon, Joel. "Jurisdictional Conflict Between the World Trade Organization and Regional Trade Agreements: Res Judicata Revisited." Journal of World Trade 56, Issue 6 (2022): 899–914. http://dx.doi.org/10.54648/trad2022037.
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This article discusses the long-standing issue of jurisdictional conflict in World Trade Organisation (WTO) jurisprudence, which has, in the recent decades, been exacerbated by the proliferation of Regional Trade Agreements (RTAs). An examination of WTO jurisprudence reveals that jurisdictional conflict stems from the lack of choice of forum clauses in WTO-covered agreements, and the lack of a hierarchy of sources in international law. While there exists legal basis for the application of general principles of international law such as res judicata, a careful analysis demonstrates that there is conceptual difficulty applying the doctrine in the context of WTO disputes. To remedy this, the article argues that the WTO Dispute Settlement Understanding (DSU) could be amended to allow for the operation of res judicata. WTO, res judicata, jurisdiction conflict, regional trade agreements, general principles of law, Dispute Settlement Understanding
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Fernandes, Sylvester Valentine. "Re: Chappel v Hart res judicata?" ANZ Journal of Surgery 80, no. 7-8 (2010): 568–69. http://dx.doi.org/10.1111/j.1445-2197.2010.05386.x.
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Hugh, Thomas B. "Re: Chappel v Hart: res judicata?" ANZ Journal of Surgery 80, no. 7-8 (2010): 576. http://dx.doi.org/10.1111/j.1445-2197.2010.05394.x.
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Laukemann, Björn. "Unionsrechtsschutz und res judicata im Zivilprozess." Zeitschrift für Zivilprozess 130, no. 4 (2017): 439–78. http://dx.doi.org/10.1515/zzp-2017-1300403.
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Barthel, Erik R., Bruce E. Stabile, David Plurad, et al. "Surgical Malpractice in California: Res Judicata." American Surgeon 80, no. 10 (2014): 1007–11. http://dx.doi.org/10.1177/000313481408001021.
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Medical negligence claims are of increasing concern to surgeons. Although noneconomic damage awards in California are limited by the Medical Injury Compensation Reform Act (MICRA) law to $250,000, the total amount of such settlements can increase significantly based on claims for economic damages. We reviewed negligence litigation involving California surgeons to determine outcomes and monetary awards through retrospective review of surgical malpractice cases published in a legal journal. This review was limited to actions involving general surgeons. Such litigation was voluntarily reported by either defense's or plaintiff's counsel at the conclusion of the litigation. Data reviewed included alleged damages incurred by the plaintiff; plaintiff's pre-trial settlement demand, plaintiff or defense verdict, use of alternate means of resolution such as arbitration or mediation, and total monetary award to the plaintiff. A total of 69 cases were reported over a 20-month period: 32 (46%) were plaintiffs’ verdicts, whereas 37 (54%) were in favor of the surgeon. Only 10 (31%) of the plaintiff verdicts were by jury trial, whereas the rest were settled by pretrial agreement, mediation, or arbitration. Of cases settled by alternate dispute resolution, the median settlement was $820,000 (n = 22) compared with a median jury trial award of $300,000 (n = 10).
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Walters, Gretta L. "Fitting a Square Peg into a Round Hole: Do Res Judicata Challenges in International Arbitration Constitute Jurisdictional or Admissibility Problems?" Journal of International Arbitration 29, Issue 6 (2012): 651–80. http://dx.doi.org/10.54648/joia2012041.
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Parties in international arbitrations often raise res judicata challenges before arbitral tribunals and courts. But neither parties nor the tribunals or courts have been clear as to whether these challenges affect the admissibility of a claim or the tribunal's jurisdiction. A close analysis of arbitral awards and court decisions that address res judicata challenges reveals, however, that the question need not be as complicated as parties, tribunals, and courts have made it.
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Pérez, Francisco G. Prol. "O Caso Julgado na Arbitragem Internacional. Alguns Pontos a Considerar." Revista Brasileira de Arbitragem 9, Issue 35 (2012): 37–47. http://dx.doi.org/10.54648/rba2012042.
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ABSTRACT: The interpretation of the effects of res judicata can vary greatly depending if such interpretation is made by a lawyer of Common or Civil law. The same evaluation of the three elements necessary to distinguish that we are facing a res judicata issue (i.e. identical parties, identical contractual object, and identical cause of action) can differ considerably if they are examined by lawyers from different legal traditions. Thus, in relation to the 'identical parties' element, the author evokes the Anglo-Saxon figures of Trust and Privy and the problems arising for the companies of a same group. In relation to the 'identical object' element, the author talks about the need to resolve all the disputes between the parties in the original lawsuit, and regarding the 'identical cause of action', the author refers to the existence of proceedings that may not produce a res judicata effect.
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CHORNOUS, Yuliia, Nataliia VOLKOVA, Antonina ZGHAMA, Yuliia TSAL-TSALKO, and Olha TSYBULSKA. "Res Judicata in Civil, Economic and Criminal Proceedings in Ukraine." Journal of Advanced Research in Law and Economics 10, no. 3 (2019): 753. http://dx.doi.org/10.14505//jarle.v10.3(41).08.
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The need to improve the efficiency of the implementation of the tasks of the judiciary, which is associated with the improvement of evidentiary activities, the saving of procedural time, as well as the use of res judicata (also known as claim preclusion) in the process of proving, determines the relevance of the analysis of the use of res judicata in civil, economic and criminal proceedings in Ukraine. The purpose of the article is to study the legal category of ‘res judicata’ (claim preclusion), problems of the theory and practice of the application of claim preclusion and its use in the exercise of evidentiary activity in civil, economic and criminal process, as well as the study of the limits of the application of claim preclusion. The methodological base is comprised of such methods as the dialectical, the systematic analysis of legal norms, the comparative legal, and the logical-normative method. The study of the res judicata requires the implementation of mechanisms that ensure the impartiality of justice and the unity of the case law, providing analysis of the case law and common standards for the implementation of legal proceedings, the purpose of which is to protect the violated rights and freedoms of natural and legal persons, to improve the legislation in the direction of harmonization of normative-legal acts of national legislation with international standards.
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Azzis, Nadia Murshida Abd. "application of principle of res judicata and estopple in family law cases in Syariah court." Linguistics and Culture Review 5, S4 (2021): 2102–11. http://dx.doi.org/10.21744/lingcure.v5ns4.1928.
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This writing examines the Syariah court’s approach in applying the principle of res judicata and estoppel in family law cases in Syariah. With the existence of the legal provisions, there are still the unclear application of res judicata and the principle of estopple in terms of hearing mal cases especially the matter involved with a monetary claim for example mut’ah cases, child maintenance, and jointly acquired property. Although this principle has been understood by the legal practitioner, the synchronization between the principle of res judicata, estopple, and court procedure is yet to be scrutinized by the Courts. Thus, a qualitative study was carried out along with library research including decided cases in this research. The content analysis method is applied in data analysis. This study indicated that in arriving at a decision, Syariah Court indirectly applied these principles. However, the implementation of these principles should be highlighted to validate the principle of justice in Syariah Courts.
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Liu, Jia-Jia, and Nak-Hyun Han. "Applicability of a Fork-in-the-Road Clause and the Res Judicata Principle in International Commercial Arbitration." Korean Academy Of International Commerce 38, no. 1 (2023): 103–19. http://dx.doi.org/10.18104/kalc.2023.38.1.103.
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Purpose: By analyzing the res judicata principle and the fork-in-the-road clause, which are frequently at issue in international commercial arbitration, this study presents the implications related to these clauses after analysis of Iberdrola v. Guatemala (II).
 Research design, data, and methodology: This study mainly adopts the literature research method, and utilizes domestic and foreign literature as well as Internet data.
 Results: ① The issue of res judicata was decided based on international law and the law of the place of arbitration (Swiss law). ② Based on the triple identity test, the ICSID recognized the arbitration’s denial of jurisdiction under the res judicata principle, and the UNCITRAL claimant was blocked in arbitration.
 Conclusions: It is meaningful that it was decided that the respondent country does not have the right to file a counterclaim, saying that the former takes precedence in cases where the investment treaty and the arbitration rules contradict each other.
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KULICK, ANDREAS. "Article 60 ICJ Statute, Interpretation Proceedings, and the Competing Concepts of Res Judicata." Leiden Journal of International Law 28, no. 1 (2015): 73–89. http://dx.doi.org/10.1017/s0922156514000545.
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AbstractThe judgment of the International Court of Justice (ICJ) of 11 November 2013, interpreting its 1962 judgment in the case concerning the Temple of Preah Vihear, inspires a reconsideration of the role of interpretation proceedings pursuant to Article 60 of the Statute of the Court. In particular, it invites us to take a closer look at the role and scope of the principle of res judicata in public international law in general and as considered in the case law of the Court in particular. This contribution reveals the competing concepts of the principle in interpretation and consecutive original contentious proceedings, and promotes instead a uniform concept that avoids the conflict inherent in current approaches.Section 1 introduces Article 60 of the ICJ Statute (section 1.1.) and thereinafter views interpretation proceedings before the Court in light of the Court's case law, in particular its 2013 interpretation judgment in the Temple case (section 1.2.). Section 2 constitutes the heart of the analysis and discusses what will be identified as the competing concepts of res judicata. Section 2.1. presents the functions, concepts, and case law of res judicata in public international law in general, whereas section 2.2. focuses specifically on the case law of the ICJ and the Permanent Court of International Justice (PCIJ) in this regard. Finally, section 2.3. concludes this study by setting out the approach that the author regards as appropriate to reconcile the competing concepts of res judicata.
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Pilkov, K. M. "Extraordinary review of judgments in civil law jurisdictions." Analytical and Comparative Jurisprudence, no. 3 (September 28, 2022): 82–86. http://dx.doi.org/10.24144/2788-6018.2022.03.14.
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The article is focused on the current problem of distinguishing the means of ordinary and extraordinary review of court decisions, in view of the universally recognized value of the finality of a judgment and the unacceptability of groundless interference with res judicata.
 Based on the examples of some civil law countries the article substantiates the most common grounds for intervention into a final judgment which are considered sufficient, as well as introduces common traits which allow grouping those grounds. The article argues that, in general terms, the most common grounds for an extraordinary review are procedural violations that significantly limited the party in exercising the right to be heard; violations in the evidentiary issues caused by illegal actions of other participants in the proceedings, in particular due to the submission of forged evidence; procedural errors related to the composition of the court.
 The article distinguishes the means of extraordinary review, which might interfere with res judicata, and those that do not, but are aimed at the revision of the courts' interpretation of the law to ensure its development. At the same time, the article pays attention to the fact that in cases where the review may intervene into res judicata, errors in matters of law (e.g. incorrect application of substantive law) are excluded from the list of grounds for extraordinary review.
 The article pays attention to the problem of extraordinary reviews being initiated by actors other than parties to the case. The author refers to the case-law of the European Court of Human Rights and argues that an extraordinary review, which does not lead to interference with res judicata, can be initiated by such actors who pursue public interests in the development of law in order to achieve unity in its interpretation. With respect to cases where the review interferes with res judicata, procedural laws in many European countries is evolving towards eliminating these remedies as they are infringing the right to a fair trial.
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Turmo, Araceli. "National res judicata in the European Union: Revisiting the tension between the temptation of effectiveness and the acknowledgement of domestic procedural law." Common Market Law Review 58, Issue 2 (2021): 361–90. http://dx.doi.org/10.54648/cola2021023.
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This paper presents an overview of recent ECJ case law concerning res judicata, with a focus on the way in which EU law affects national rules related to this principle. A series of recent judgments has confirmed the importance of the issue in the broader context of the impact of EU law on national judicial systems and the circulation of judgments. The ECJ mostly confirms trends visible in earlier case law, signalling an awareness of the importance of this rule for national judicial systems and restricting exceptions to what appears strictly necessary in order to ensure the effectiveness of EU law. However, the case law also presents interesting new developments, including a challenge of cross-jurisdictional national res judicata whose consequences are as yet unclear and a more in-depth engagement with national procedural systems on the basis of the principles of equivalence and effectiveness. The overall impression is one of maturation of the case law although some progress still needs to be made, in particular with regard to the clarity of the Court’s discourse on EU and national principles of res judicata.
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Knežević, Marko. "Required joinder of parties in civil procedure and extension of res judicata effect." Zbornik radova Pravnog fakulteta, Novi Sad 57, no. 2 (2023): 443–64. http://dx.doi.org/10.5937/zrpfns57-43686.
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The paper deals with specific problem regarding required joinder of parties in litigation, namely legal consequences of rendering the judgment despite the failure to join a necessary party, but with court's failure to detect the issue, i.e. is the lacking necessary party bound by judgement? Dominant opinion, both in domestic and foreign representative legal theory and case law, decline res judicata effect, while some Serbian scholars accept it. Research based on constitutional and dogmatic scale shows that extension of res judicata effect could not be deemed as Serbian lex lata. The concept of required joinder of parties is based on protection of right to be heard of all necessary parties, so the contrary standpoint would diminish, or moreover infringe such basic human right. In addition, there is no legal ground for such extension of res judicata effect, bearing in mind provisions of Serbian Code of Civil Procedure. Lastly, if lacking necessary party would be bound by judgement, the very concept of required joinder of parties would be reduced ad absurdum.
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Погорецький, В. "Паралельні арбітражні процеси і принцип res judicata". Юридична Україна, № 3 (2008): 75–79.
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Kovtun, N. N. "Res Judicata of the Reformed Russian Cassation." Russian Journal of Legal Studies 2, no. 4 (2015): 121–30. http://dx.doi.org/10.17816/rjls18087.
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In the article the author analyzes the conformity of the new cassation proceedings in Russia with the fundamental principle of res judicata, consequences that derive from this principle and announced aims of the reform, that was realized by adoption of the Federal Law № 433-FZ of December 29, 2010.
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강현중. "A study on RES JUDICATA(claim preclusion)." KOOKMIN LAW REVIEW 19, no. ll (2007): 99–149. http://dx.doi.org/10.17251/legal.2007.19..99.
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Gilbert, K. "Don't be a Martyr to Res Judicata." Journal of Intellectual Property Law & Practice 1, no. 8 (2006): 507–9. http://dx.doi.org/10.1093/jiplp/jpl080.
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Park, Jaewan. "Collection Actions and Expansion of Res Judicata." Institute for Legal Studies 39, no. 4 (2022): 199–233. http://dx.doi.org/10.18018/hylr.2022.39.4.199.
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Saleem, Hafiz Abdul Rehman, Hamid Mukhtar, and Imtiaz Ahmad Khan. "Dimensions of Res Judicata Applicability in Pakistan." Spring 2023 3, no. 2 (2023): 686–94. http://dx.doi.org/10.54183/jssr.v3i2.166.
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Res judicata is a matter of public policy and right during any litigation. The doctrine is discussed in the Code of Civil Procedure 1908 (CPC 1908) with an exhaustive instance of applicability and inapplicability in Section 11. However, the explanation given in Section 11 appears in-exhaustive considering the broader spectrum of cases and scenarios. This manuscript consolidates the instances that complement section 11 to formulate the ever-exhaustive list of instances for the proper application of res judicata. The study conducted case-based research and extracted the rules formulated in the judicial decisions by the higher judiciary. The present research contemplates a better comprehension of the rules that can save the public right of litigation and also inhibit unnecessary instances of frivolous litigation.
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Jon, Wonyol. "Res Judicata of Arbitral Awards in Korea." Korea Association of the Law of Civil Procedure 28, no. 1 (2024): 261–98. http://dx.doi.org/10.30639/cp.2024.2.28.1.261.
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Arbitral awards have preclusive effects, as well as national court judgments under res judicata principle, and this is stipulated in Arbitration Act of Korea. The extent of preclusive effect of court judgments, however, differs from country to country, especially between civil law jurisdictions and common law jurisdictions. The civil law jurisdictions usually preclude only the claims of the previous lawsuit to be relitigated, whereas the common law jurisdictions preclude both claims and issues of the previous lawsuit.
 Although preclusive effects of arbitral awards often have international character, there is no consensus in the extent of the effects. Each jurisdiction applies its own preclusive effect of court judgment to its arbitral awards.
 Recently KCAB in revision of its international arbitration rules is considering expansion of preclusive effect to the issues of the awards. However, in present situation where arbitral preclusive effect is determined according to the effect of court judgment in each country, this expansion could break the consistency between Arbitration Act and the Arbitration Rules.
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Kornezov, Alexander. "Res judicata of national judgments incompatible with EU law: Time for a major rethink?" Common Market Law Review 51, Issue 3 (2014): 809–42. http://dx.doi.org/10.54648/cola2014062.
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There is currently much uncertainty about the extent to which EU law can affect national rules on res judicata. The reason for this is the mainly casuistic approach which has so far prevailed both in the case law and in the doctrine. This article puts forward a new framework for examining the matter. It argues, in essence, that EU law can - and should - impose, on the one hand, stricter limits on the authority of res judicata of national judgments incompatible with EU law and, on the other hand, allow retrial in certain circumstances for the purpose of remedying a violation of that law.
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Gupta, Ritunjay. "Res Judicata in International Arbitration: Choice of Law, Competence & Jurisdictional Court Decisions." Asian International Arbitration Journal 16, Issue 2 (2020): 193–220. http://dx.doi.org/10.54648/aiaj2020021.
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Given the twin goals of finality and efficiency, the doctrine of res judicata has come to be applied, although less frequently, in the international arbitration context as well. However, being largely perceived as a proverbial ‘twilight issue’ in international arbitration, its application is fraught with uncertainties and inconsistencies. Amongst the more compelling concerns regarding the subject matter, this Article tackles the ambiguities around the choice of law analysis for preclusion standards; the doubts regarding the arbitral tribunal’s kompetenz-kompetenz to address the issue; and the peculiar nature of jurisdictional court decisions and its res judicata effect in subsequent arbitral proceedings. Rarely, if ever, does the lex arbitri shed light on the precise standards of preclusion to be applied in a particular case. Instead, the choice of law analysis by arbitral tribunals are guided by a fluid balancing act between varying degrees of private rights and public interests. While the The International Law Association (ILA) Recommendations (Resolution No. 1/2006) do come close to a purported international standard, its limited acceptability within the community and lean adoptability across jurisdictions, brings to the fore the uncertainties attached to the doctrine itself. Confusion further ensues when the authority of the tribunal to decide on its own jurisdiction is brought into question on confronting the defense of res judicata. While the New York Convention’s mandate of recognition of awards empowers the Courts to afford res judicata effect to a prior adjudication, the same conflicts with the arbitral tribunal’s own competence to address arguably procedural arbitrability issues such as this. These concerns amplify manifold when an arbitral tribunal encounters a prior Court’s decision regarding the tribunal’s jurisdiction, including the question of non-arbitrability of the disputed claim. In the absence of exacting standards and principles to deal with any of these issues, different tribunals have been discharging their own brand of the doctrine’s broad interpretation. This Article expounds the existing literature on the subject, and thereafter, attempts to analyse each of these complex and controversial issues to better equip practitioners and arbitrators when faced with such concerns; at least until universal conformity is achieved through promulgations bordering a truly international standard. Res Judicata, Claim Preclusion, Choice-of-Law, Kompetenz-Kompetenz, Jurisdictional Decisions
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Seok, Hyunsoo. "The successor of subject-matter in dispute and the subjective extent of Res Judicata." Institute of Legal Myongji University 23, no. 2 (2025): 241–58. https://doi.org/10.53066/mlr.2025.23.2.241.
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Regarding whether the successor of subject-matter in dispute subsequent to a closure of pleadings is the successor subsequent to a closure of pleadings specified in Article 218, Paragraph 1 of the Civil Procedure Act(hereinafter ‘Article 218 successor’), Supreme Court precedent basically takes the position that ‘the successor of subject-matter is the Article 218 successor if the objects of lawsuit is based on real rights, but not if the object of lawsuit is based on obligation’, but especially in the case that subject-matter in dispute is inherited from a losing plaintiff, it takes the position that ‘even if the objects of lawsuit is based on real rights, the successor of subject-matter is not the Article 218 successor.’ The purpose of this paper is to examine whether the above precedents are valid, and to seek standards that can keep theoretical consistency and lead to desirable results in specific cases regarding the subjective extent of Res Judicata to the successor of subject-matter in dispute. It is generally believed that the scope of the successor of subject-matter in dispute subject to res judicata is determined according to the theory of the objects of lawsuit. However, the standard for determining the scope of the above successor should be efficiency in the compulsory execution procedure, not the theory of the objects of lawsuit. And in terms of this efficiency, regardless of whether the subject-matter in dispute is inherited from the plaintiff or the defendant, and whether the plaintiff or the defendant prevails, the subjective extent of Res Judicata extends to the successor if the claim is on real rights. Compared to making a uniform conclusion that res judicata does not extend to the successor in cases where the subject-matter in dispute is inherited from the losing plaintiff as in precedent, taking the view that ‘in the above case, if the claim is based on real rights, the res judicata extends to the successor' has the advantage of being able to reflect the specific factual situation and derive a result appropriate for each factual situation.
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Muchiri, Samson. "Using res judicata to resolve jurisdictional conflicts between WTO and regional trade agreements’ dispute settlement mechanisms." Kabarak Law Review 2 (December 16, 2023): 1–35. http://dx.doi.org/10.58216/klr.v2i.345.
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The WTO has a renowned dispute settlement body, distinguished from other dispute settlement bodies by its compulsory and exclusive jurisdiction. However, regional trade agreements provide for rights and obligations similar to those guaranteed by the WTO thus, causing material jurisdictional overlaps between the WTO institutions and regional dispute resolution institutions. Potentially, a State aggrieved by measures that contravene rights or obligations within such overlaps has two alternative fora for dispute resolution. Where the regional trade agreement dispute resolution mechanism resolves the dispute first, the compulsory and exclusive nature of the WTO jurisdiction allows the matter to be re-determined at the WTO level, causing jurisdictional conflicts and duplicative proceedings. Although it is an established principle in customary international law, res judicata is not provided in any of the instruments guiding the jurisdiction of the WTO dispute settlement system. The jurisprudence of WTO Panels and the Appellate Body are also thin on this matter. Seemingly, the inclination has been to exercise the compulsory and exclusive jurisdiction, without regard to other existing fora. This paper therefore suggests clear recommendations to be employed in widening the existing WTO jurisprudence on res judicata as a solution to jurisdictional conflicts. In doing so, this paper further acknowledges the possible criticisms against res judicata in WTO dispute settlement and provides possible solutions to these challenges to ensure the peaceful and harmonious coexistence of the WTO dispute settlement mechanisms vis-à-vis those of regional trade agreements. Using the South American region as an example, this paper enunciates the jurisdictional overlaps and proposes the application of res judicata by the WTO dispute settlement mechanisms in judicial restraint
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Jordaan, Donrich. "TAKING A SECOND BITE AT THE APPEAL CHERRY: MOLAUDZI v S." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 19 (September 12, 2016): 1. http://dx.doi.org/10.17159/1727-3781/2016/v19i0a1282.
Full textAbstract:
The principle of res judicata is well-established in our law: essentially it means that parties to a dispute have only one metaphorical "bite at the cherry". The "bite" can entail appealing through the hierarchy of courts, but once the parties have exhausted their appeals, they cannot re-litigate the same dispute. However, in the recent case of Molaudzi v S 2015 2 SACR 341 (CC) the appellant attempted to appeal to the Constitutional Court twice: the first time the application for leave to appeal was dismissed; the second time the application was granted and the appeal upheld. The appellant got a second "bite at the cherry". In Molaudzi v S the Constitutional Court developed the common law by creating an interest-of-justice exception to the principle of res judicata and – for the first time in the Constitutional Court's history – overturned one of its own judgements. In this case note I present the background of the case of Molaudzi v S, analyse the judgement, and differentiate it from another Constitutional Court case that dealt with res judicata, namely Mpofu v Minister for Justice and Constitutional Development 2013 2 SACR 407 (CC).
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Zaugg, Niklaus. "Objective scope of res judicata of arbitral awards Is there room for discretion?" ASA Bulletin 35, Issue 2 (2017): 319–33. http://dx.doi.org/10.54648/asab2017028.
Full textAbstract:
In its landmark decision DFT 141 III 229 – also known as the “US law firm decision” –, the Swiss Federal Tribunal confirmed its previously established doctrine on the controlled transfer of a foreign award’s effects (“Kontrollierte Wirkungsübernahme”) when determining the objective scope of res judicata of a foreign arbitral award. The concept implies that the binding effect of a foreign award cannot go beyond the determinations contained in its operative (or dispositive) part. Such narrow approach to res judicata has been criticised by various authors. It is considered inappropriate in the context of international arbitration because arbitrating parties ordinarily wish to have their disputes resolved in a comprehensive manner. Given the lack of any pertinent and authoritative transnational principles, it is further argued that arbitral tribunals should be vested with the power to discretionarily determine the scope of res judicata of a previous award. In doing so, arbitral tribunals are expected to notably take into account the legal traditions and the parties’ expectations involved in a specific arbitration. It is suggested by the author of this article that an arbitral tribunal’s entitlement to discretionarily determine the objective scope of res judicata of a previous award not only conflicts with the provisions of the Swiss lex arbitri but also with the parties’ need for legal certainty and, as the case may be, their interest to have certain aspects of a dispute omitted from a final adjudication. The legitimate interest of parties in having a dispute settled in a comprehensive manner should be addressed by enabling them to flexibly decide what aspects of a dispute they wish to submit to a final adjudication, and at what point in time. The respective intentions of the parties should be communicated to the arbitral tribunal by filing or abstaining from filing corresponding applications for prejudicial declaratory relief.