I. Res judicata, 1 a general principle of international law recognized by civilized nations

A. The principle of res judicata in international law

1. There is no doubt that res judicata is a principle of international law, and even a general principle of law within the meaning of Article 38(1)(c) of the Statute of the International Court of Justice. 2

2. With regard to the principle of res judicata, Judge Anzilotti stated in his dissenting opinion in the Chorzöw Factory case (Interpretation) (1927):

[I]t appears to me that if there be a case in which it is legitimate to have recourse, in the absence of conventions and custom, to 'the general principles of law recognized by civilized nations', mentioned in No. 3 of Article 38 of the Statute, that case is assuredly the present one. Not without reason was the binding effect of res judicata expressly mentioned by the Committee of Jurists entrusted with the preparation of a plan for the establishment of a Permanent Court of International Justice, amongst the principles included in the above-mentioned article (Minutes, p. 335). 3

3. Similarly, in its final award (1941), the Trail Smelter arbitral tribunal stated that:

The sanctity of res judicata attached to a final decision of an international tribunal is an essential and settled rule of international law.

If it is true that international relations based on law and justice require arbitral or judicial adjudication of international disputes, it is equally true that such adjudication must, in principle, remain unchallenged, if it is to be effective to that end. 4

4. As to the meaning of res judicata, the Permanent Court of International Justice decided in the Société commerciale de Belgique case (1939), that 'recognition of an award as res judicata means nothing else than recognition of the fact that the terms of that award are definitive and obligatory'. 5

5. res judicata has two effects. First, that which is res judicata is final. Once a case has been decided by a valid and final judgment, the same issue may not be disputed again between the same parties, so long as that judgment stands. [Page44:] This negative effect of res judicata has frequently been expressed in the maxim non bis in idem. It however only attaches to the final judgment of a competent tribunal. Where a tribunal has merely declared itself to have no jurisdiction to entertain a suit, this does not prevent the same issue from being presented before another tribunal which may be competent. Secondly, res judicata, that is to say what has been finally decided by a tribunal, is binding upon the parties to the decision. 6

6. As to the limits of res judicata, it is well established that a judicial decision is only res judicata if it is between the same parties and concerns the same question as that previously decided. As the British-United States Claims Arbitral Tribunal (1910) stated, '[i]t is a well established rule of law that the doctrine of res judicata applies only where there is identity of the parties and of the question at issue'. 7

7. It must also be pointed out that not everything contained in the decision acquires the force of res judicata. In its Advisory Opinion concerning the Polish postal service in Danzig (1925), the Permanent Court of International Justice stated that 'once a decision has been duly given, it is only its contents that are authoritative, whatever may have been the views of its authors . . . It is certain that the reasons contained in a decision, at least in so far as they go beyond the scope of the operative part, have no binding force as between the parties concerned'. 8 In other words, views expressed by the tribunal in its judgment which are not relevant to the actual decision on the question at issue have no binding force and are not res judicata.

8. However, as Judge Anzilotti expressed in his dissenting opinion in the Chorzöw Factory case (Interpretation) (1927):

When I say that only the terms of a judgment are binding, I do not mean that only what is actually written in the operative part constitutes the Court's decision. To the contrary, it is certain that it is almost always necessary to refer to the statement of reasons to understand clearly the operative part and above all to ascertain the causa petendi. But, at all events, it is the operative part which contains the Court's binding decision. 9

9. Finally, '[i]t is generally admitted that the principles of litispendency and res judicata do not apply to questions decided as incidental and preliminary points'. 10 In other words, a decision that does not deal with the merits of the claim does not constitute res judicata as to those merits. A contrario, if, in deciding whether or not it has jurisdiction, an international tribunal is required to decide an issue that touches on the merits, the decision on this issue will be held to be res judicata as between the parties to that decision in subsequent proceedings on the merits. 11

B. res judicata in national legal systems

10. In his treatise on res judicata, estoppel and foreign judgments, 12 Peter Barnett points out that, to the extent that it upholds the sanctity of the final judicial pronouncement, the doctrine of res judicata is not only a general principle of law recognized by civilized nations, it also reflects 'a wisdom that is for all time':

Indeed, the importance of finality and conclusiveness in disputes is evident in ancient precedents: 'in the spirit of the law as expounded by Hindu commentators'; in Greek custom; and amongst the principles of the Roman jurists. 13[Page45:]

It is therefore not surprising, given their Roman law inheritance, that both those countries whose legal systems are based on civil law and those belonging to the common law tradition have a shared conception of res judicata.

11. Two fundamental principles underlie the doctrine of res judicata: the interest of the state that there be an end to litigation, and the fact that no person should be proceeded against twice for the same cause. The main purpose of the doctrine is to avoid repetitious and wasteful litigation. 14

1. Res judicata in english law

12. In England, in order for a decision to qualify as res judicata, it must be pronounced by a judicial tribunal of competent jurisdiction and the decision itself must be a judicial decision that is final and conclusive and on the merits. Arbitral awards amount to judicial decisions for res judicata purposes. 15

13. Once there is a decision that qualifies as res judicata, it may be relied upon in subsequent proceedings for preclusive purposes. In other words, the decision can prevent or preclude the commencement or continuance of subsequent proceedings involving the same or similar subject matter between the same (and possibly related) parties or their privies.

14. The existence of a decision that is res judicata may give rise to four preclusive pleas under English law: cause of action estoppel, issue estoppel, former recovery and abuse of process. 16

15. Cause of action estoppel prevents a party in subsequent litigation from asserting or denying the existence of a particular cause of action, the existence or non existence of which has been determined in previous litigation between the same parties. 17

16. Issue estoppel is a plea that may be raised when fundamental issues determined in an earlier proceeding are raised in later proceedings. 18 Issue estoppel covers only those matters which the prior judicial decision necessarily established as a legal foundation or justification for its conclusion. 19

17. Former recovery is a plea that the party in whose favour relief has been granted is now attempting to reassert the same claim in order to obtain further relief.

18. Lastly, abuse of process is based on the rule set out in Henderson v. Henderson.20 It requires the parties, when a matter becomes the subject of litigation between them in a court of competent jurisdiction, to bring their whole case before the court so that all aspects of it may be finally decided once and for all. 21

2. Res judicata in civil law legislation

19. In France, Article 1351 of the Civil Code provides that res judicata applies only to what has been decided in the judgment. It goes on to state that the claim must be the same, it must be based on the same issue and involve the same parties acting in the same capacity. In Belgium, a similar provison was first contained in the Civil Code and is now found in Article 23 of the Judicial Code ('JC'). The rules on res judicata are alike in both countries. 22 In Switzerland, where res judicata is a principle of federal law, the rules are little different. 23[Page46:]

20. res judicata pertains only to decisions in which a court delivers a ruling on a matter in dispute. Article 480 of the French New Code of Civil Proceedings ('NCPC') states that a judgment which, in its operative part, decides all or part of the main claim has res judicata effect with respect to the matter it decides as soon as it is rendered. On the other hand, in cases where there is no dispute but the law requires the matter to be submitted to a court (for instance, for ratification), the decision rendered by the court has no res judicata effect. Likewise, there is no res judicata effect to interlocutory judgments such as appointments of experts (Article 482 NCPC), or interim orders (Article 488(1) NCPC). The lack of res judicata effect pertains only to the main claim, however. Hence, although a trial court will not be bound by the operative part of an interim order rendered in separate summary proceedings with respect to a matter that has been brought before that court, such order cannot be reconsidered by the judge who rendered it, unless new facts emerge changing the basis on which the order was made.

21. On the other hand, Article 480 NCPC states that a judgment ruling on a procedural objection, such as a jurisdictional plea, shall also have res judicata effect with respect to the matter it decides from the moment it is rendered.

22. A judgment acquires res judicata effect upon being rendered, even if it may be subject to appeal. In other words, res judicata exists irrespective of any right to appeal, albeit provisionally, given that the judgment may be called into question as a result of the appeal. It the appeal is dismissed, the judgment becomes final and, according to the traditional French expression, acquires 'force de chose jugée', 24 upon which its enforceability depends. 25

23. Only the operative part of the judgment is recognized as having res judicata effect, not the reasons. 26 Moreover, such effect is limited to those issues that have been the subject of the parties' discussions and on which the court has actually ruled. The reasons for the judgment do not have res judicata effect. At the very most, they may be used to interpret the operative part and serve to clarify the meaning and scope of what has been decided. However, courts have acknowledged that the reasons for a decision may partake of the res judicata effect that applies to the operative part, whenever such reasons are a necessary adjunct to such operative part. 27

24. Is it possible for the effect of res judicata to extend to issues that have been implicitly settled as part of the decision? Both French and Belgian courts have answered yes to this question. In other words, not only the formal pronouncements are res judicata, but also the secondary issues that have necessarily been resolved by the court in the process of reaching its decision and which would deprive the decision of its logical basis if they were to be denied.

25. In order for res judicata to be raised as an objection to subsequent proceedings, a number of conditions must be satisfied: identity in thing sued for, identity of parties and the capacity in which they act. For instance, parties do not act in the same capacity in two successive proceedings, if they act personally in one and as the representative of a legal entity in the other. Also, the cause of action must be identical in both cases.

26. A plea of res judicata is not a matter of public policy. The parties may therefore waive objections based on res judicata and courts are not entitled to raise them of their own accord. Such objections may be considered to be public policy only when, within the same proceedings, a ruling is made on the consequences of a previous decison that has become final. This is because it is [Page47:] generally considered that once a court has finally decided various issues in the course of proceedings, it no longer has jurisdiction over that part of the dispute and cannot go back on its decision. 28

II. res judicata applied to arbitral awards

27. It is now commonly accepted that arbitral awards have res judicata effect. 29 It is indeed so provided in the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) 30 and in various national statutes.

28. In France, Articles 1476 and 1500 NCPC state that once an arbitral award has been rendered it has res judicata effect with respect to the dispute it settles. The same is true in Belgium where Article 1703 JC provides that, unless the award is contrary to public policy or the dispute is not capable of settlement by arbitration, the arbitral award is res judicata once it has been notified to the parties and thereafter may not be challenged before arbitrators. Article 1055 of the German Code of Civil Procedure provides that an arbitral award has the same effect between the parties as a final and binding court judgment. Similar provisions also exist in the Netherlands (Article 1059 of the Code of Civil Procedure), Austria (Article 594 of the Code of Civil Procedure) and Switzerland (Article 190 of the Act on Private International Law). 31

29. On the other hand, it appears that '[n]owhere in a statute of a common law country is it stated that an arbitral award has a res judicata effect like a judgement'. 32 The UNCITRAL Model Law on International Commercial Arbitration just mentions that the award 'shall be recognized as binding' (Article 35(1)). The US Federal Arbitration Act does not even provide that an award is binding upon the parties. Nonetheless, in the United States arbitral awards are in principle regarded as having res judicata effect, including collateral estoppel, and judicially confirmed awards enjoy full faith and credit under the US Constitution. 33 In England, Article 58 of the Arbitration Act 1996 states that the award is 'final and binding'. Although there is therefore no doubt that res judicata applies to arbitration as it does to litigation, 34 it has been pointed out that '[t]he doctrine of res judicata, in either its broad or its narrow sense, has no application to issues falling outside the terms of the arbitration agreement; and it is doubtful whether the rule in Henderson v. Henderson applies to issues which are outside the scope of the matters referred to the arbitrator even though they fall within the terms of the arbitration agreement'. 35

30. An arbitrator who renders an award in violation of res judicata runs the risk that the award might be subsequently set aside: [Page48:]

- either for lack of a valid arbitration agreement 36 or because the tribunal has exceeded its mandate, 37 having become functus officio upon rendering the first award;

- or because its reasons contradict those of the first award; 38

- or on account of a violation of due process; 39

- or, in exceptional cases, because of a violation of public policy, as is the case in France, for example, when a second award rendered in the same proceedings as a prior initial award decides on a part of a dispute for which the arbitral tribunal was already functus officio.40 Otherwise, an objection on the basis of res judicata is generally not considered to be a matter of public policy.

31. Once the principle of res judicata has been accepted, three questions arise:

(i) Under what conditions does res judicata apply?

(ii) What is the scope of res judicata?

(iii) If an award is not res judicata, what value should be given to it by other arbitrators?

These are of course very broad issues which exceed the scope of this article. We will therefore limit our analysis to a review of decisions in which they have been dealt with in relation to multicontract and multiparty disputes.

32. As to the first question, the arbitral tribunal in ICC case 6363 stated in its final award of 1991 that '[w]here there is, cumulatively, identity as regards parties, subject matter of the dispute petitum, and causa petendi, between a prior judgement and a new claim, the new claim is barred by the principle of res judicata'. 41 Of course, the law of the seat of the arbitration must also be taken into consideration in this connection, since the moment at which the award becomes res judicata may vary from one jurisdiction to another: it may be the moment the award is made, after it has been notified to the parties, or when there is no longer any possibility of challenge. It should also be kept in mind that in certain countries, like France and Belgium, res judicata serves private interests only, 42 which means that an objection based on res judicata may be raised by the parties alone and not ex officio by a court or arbitral tribunal.

33. As to the scope and limits of res judicata, this issue was addressed in ICC cases 2475 and 2762 in 1977. 43 A had concluded a contract with B for the purchase of steel. It had also concluded a contract of supply of the same product to C which, in turn, had entered into an agreement for the sale of the same product to D and D had resold the steel to E. The manufacturer did not supply the products and none of the contracts was performed. This led to four different proceedings: C commenced arbitration proceedings against A; E sued D before the Belgian courts and was found liable; E therefore commenced arbitration proceedings against C; and C, as a reaction, started a new arbitration against A. The latter two arbitrations were consolidated. Since a first award had already been rendered concerning the relations between A and C, the question arose as to whether and to what extent the first award was res judicata and also whether the arbitral tribunal was bound by the decision of the Brussels Court of Appeal, which had declared its decision common to C and A. The arbitral tribunal decided that the first award was res judicata and further stated: [Page49:]

It would be paradoxical to contend that an arbitrator ruling under the auspices of the ICC would not be bound by an award previously rendered between the same parties on the same issues by another arbitrator also ruling under the auspices of the ICC. 44

It is true that even if the ICC Rules of Arbitration do not contain any provisions concerning res judicata, it would be difficult to imagine the ICC International Court of Arbitration approving a second arbitral award between the same parties on the same subject matter that contradicts a prior award already approved by the Court. On the basis of the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, the arbitral tribunal also considered that it was bound by the decision rendered by the Brussels Court of Appeal. As to the scope of res judicata, the arbitral tribunal decided that, in accordance with French and Belgian law, the effect of res judicata was not limited to the holding in the case but also extended to the reasoning. Hence, it could not reconsider the issue of force majeure raised by A in the first arbitration and rejected by the arbitral tribunal in that case in the reasons for its award.

34. It should again be pointed out that, in principle, res judicata applies only to the operative part of the award, i.e. the part of the award containing the decision. It does not normally extend to the reasons, which will only be taken into consideration to determine the meaning and the scope of the operative part. 45 It is however generally considered that res judicata extends to the reasons which are a necessary adjunct to the decision, that is to say the ratio decidendi of the award. In other words, the fact that the latter is located in the body of the award rather than in its operative part is irrelevant. 46

35. The issue of the scope of res judicata has also been addressed in other arbitral awards. For example, in the final award of 31 May 1988 rendered in ad hoc proceedings, the arbitral tribunal decided that 'the principle of res judicata prevents the re-opening of necessarily decided points'; 47 it does not prevent the clarification or interpretation of a decision, nor does it prevent a decision from being rendered on points left undecided by an award. In an award of 28 March 1984 in ICC case 3267, the arbitral tribunal decided that

the binding effect of its first award is not limited to the contents of the order thereof adjudicating or dismissing certain claims, but that it extends to the legal reasons that were necessary for such order, i.e., to the ratio decidendi of such award. Irrespective from the academic views that may be entertained on the extent of the principle of res judicata on the reasons of a decision, it would be unfair to both parties to depart in a final award from the views held in the previous award, to the extent they were necessary for the disposition of certain issues. By contrast, the arbitral tribunal made clear in other parts of its first award that the views expressed therein on certain other aspects of the case were of a preliminary nature only and without prejudice to its final decision. On such aspects, the arbitral tribunal holds itself entirely free to adopt other views with the benefit of further evidence and investigations. 48

36. The third question concerns whether and to what extent an arbitral tribunal should take into consideration an award rendered in another connected arbitration which is not res judicata. It recently arose in a well-known ICC case involving four arbitration proceedings arising from the same project. One of the central issues in each arbitration related to the existence of deceit at the time the supply agreements were entered into. The cases were heard by four different panels. In one case, 49 the claimant submitted to the arbitrators a final award rendered in one of the other three cases, 50 in which the tribunal had recognized the existence of deceit and had consequently declared the contract at issue void and ordered the defendant to pay [Page50:] damages to the claimant. The second arbitral tribunal pointed out in its award that the parties were not the same in the two cases; that the arbitration in question took place on the basis of a different supply contract and arbitration agreement, albeit with the seat of arbitration in the same city; that the applicable law was also different, and that it could not be assumed that the same evidence was equally available to both arbitral tribunals. The tribunal therefore concluded:

This arbitration tribunal is not bound by the X award; nor are the parties to these arbitration proceedings. There can be no issue estoppel. Nonetheless, it provides a helpful analysis of the common factual background to this dispute. Accordingly, we have borne its findings and conclusions in mind, whilst taking care to reach our own conclusions on the materials submitted by these parties in these proceedings.

The tribunal finally found in favour of the defendant, considering that, on the basis of the facts and the applicable law, it could not - as was the case in the previous award - conclude that there had been deceit.

37. In another case where the arbitral tribunal decided that a previous decision was not res judicata, it however decided that the first decision could not be ignored:

Parts of it represent an authoritative ruling on the position of ME country law on certain matters that may be relevant in this case. 51

38. This approach was not followed by an arbitral tribunal in ICSID proceedings initiated by a company against Egypt after an award rendered by an ICC arbitral tribunal between the same parties and in relation to the same dispute had been set aside by the Paris Court of Appeal, whose decision was subsequently upheld by the French Court of Cassation. 52 The Paris Court of Appeal held the ICC award to be invalid because Egypt had not consented to submit the dispute to ICC arbitration. SPP, the company initiating the proceedings, submitted however to the new arbitral tribunal that it should 'adopt and incorporate as its own the pertinent findings of facts made by the ICC Arbitral Tribunal concerning SPP(ME)'s performance of its obligations under its agreements'. The ICSID arbitral tribunal found this submission unacceptable, both in principle and under the ICSID Rules of Procedure for Arbitration Proceedings (Arbitration Rules). It considered that the submission asked the tribunal to abdicate its fact-finding function and adopt as its own the findings of a tribunal that had been held to have overstepped the powers conferred upon it by the arbitration clause. According to the tribunal, such an approach is hardly compatible with the basic function of evidence in the judicial process, which is to enable the tribunal to determine the truth concerning the conflicting claims of the parties before it. 53 Moreover, under Article 47 of the ICSID Arbitration Rules, ICSID tribunals are compelled to make their own findings of fact: 54

1. The award shall be in writing and shall contain:

[...]

(g) a statement of the facts as found by the tribunal; [...]

39. Lastly, there is another, more delicate aspect of the question of res judicata that deserves attention. If an arbitral tribunal has jurisdiction over a contract A but not over a related contract B, it is nonetheless unquestionably entitled to take into consideration contract B when deciding the dispute relating to contract A. 55 However, there are cases in which arbitrators must go further and rule on a point that is not part of the issues they are required to decide but which determines, or is merely relevant to, the outcome of the dispute they are hearing. For instance, [Page51:] they may be required to rule on the existence, validity or performance of a related contract over which they have no jurisdiction, because the coming into effect of the disputed contract depends on the existence or validity of that other contract.

40. In award no. 1491 of 20 July 1991 of the Chamber of National and International Arbitration of Milan, 56 the issue concerned the termination of a subcontract due to the embargo on Iraq. The question arose as to whether the fact that the arbitrator did not have jurisdiction over the main contract prevented him from deciding on the consequences of the embargo on this contract. He held that the characterization of the Iraq embargo and its consequences was common to both contracts and that the legal nature of the subcontract meant that the consequences of the embargo on the main contract could have an effect on the outcome of the dispute relating to the subcontract. He pointed out, however, that the effects of the embargo on the main contract might be assessed differently in proceedings between the contractor and the owner. The reasoning of the arbitral tribunal showed that it considered itself entitled to decide on the effect of the embargo on the main contract, despite the fact that it had no direct jurisdiction over this contract, but that it should treat the matter as a preliminary issue in relation to the settlement of the dispute relating to the subcontract. Under such conditions, the risk of conflicting decisions could not be regarded as a determining factor. Besides, the arbitral tribunal's decision on the question would have no res judicata effect in respect of the parties to the main contract, but would be merely a preliminary step before ruling on the subcontract and have no effect on the owner's rights and obligations. In other words, there could be no question of taking the arbitrator's decision on the preliminary issue as res judicata if that issue were to arise at a later date as the main issue in litigation between the owner and the general contractor.

41. As aptly stated by François-Xavier Train in his aforementioned thesis: 57

If the point at issue relates to the dispute before the arbitral tribunal, is necessary or relevant to the outcome of that dispute and is arbitrable, then the arbitral tribunal can and should take cognizance of it . . . However, it should do so, not with a view to 'deciding' the issue, but simply for the purpose of settling the issues dependent on that point that come within its jurisdiction. Neither the parties to a different agreement - even if they are the same - nor the arbitrators ruling on that agreement - even if they are the same - are in any way bound by the conclusion reached by the arbitral tribunal on the preliminary issue. 58

III. Conclusion

42. res judicata is a very ancient concept and must be considered a general principle of international law recognized by civilized nations. It not only applies to judicial decisions but also, albeit possibly with limited restrictions, to arbitral awards. As evidenced by the awards which have been analyzed in this article, arbitral tribunals are often confronted with the issue of res judicata, especially in the context of multiparty disputes.

1
See also on the topic B. Hanotiau, 'Problems Raised by Complex Arbitrations involving Multiple Contracts-Parties-Issues - An Analysis' (2001) 18 J. Int. Arb. 251 at 356, and 'Quelques réflexions à propos de l'autorité de chose jugée des sentences arbitrales' in Liber Amicorum Lucien Simont (Brussels: Bruylant, 2002) 301.

2
B. Cheng, General Principles of Law as Applied by International Courts and Tribunals (London: Sweet & Maxwell, 1953, repr. Cambridge: Grotius, 1987) at 336-372 and authorities cited.

3
P.C.I.J. Ser. A, No. 13 at 27. See Procès-Verbaux at 315-316.

4
3 UNRIAA 1905 at 1950-1951, cited by B. Cheng, supra note 2 at 336. See also in more recent case law the judgment of 18 November 1960 in which the International Court of Justice dismissed a challenge against an arbitral award rendered in 1906 by the King of Spain in a boundary dispute between Honduras and Nicaragua, [1960] I.C.J. Rep. 192; the advisory opinion of 13 July 1954 concerning the effects of awards of compensation made by the United Nations Administrative Tribunal, in which the International Court of Justice referred to res judicata as a 'well-established and generally recognized principle of law', [1954] I.C.J. Rep 47 at 53; the request for interpretation of the judgment of 11 June 1998 in the land and maritime boundary case between Cameroon and Nigeria, [1999] I.C.J.Rep. 31 at 39; and the case relating to the boundary dispute between Qatar and Bahrain, [2001] I.C.J.Rep. at § 203, in which the res judicata principle was taken for granted.

5
Ser. A/B, No. 78 at 174-175.

6
B. Cheng, supra note 2 at 337-338.

7
In the matter of S.S. Newchang, Claim No. 21, reprinted in (1922) 16 AJIL 323 at 324.

8
P.C.I.J., Ser. B, No. 11 at 28-30.

9
P.C.I.J., Ser. A, No. 13 at 24.

10
Opinion of Mr Ehrlich, the Polish national judge in the Chorzöw Factory case (Merits) (1928), P.C.I.J. Ser. A, No. 17 at 76.

11
See e.g. The Sennar, [1985] 2 All E.R. 104.

12
P.R. Barnet, Res Judicata, Estoppel and Foreign Judgments: The Preclusive Effect of Foreign Judgments in Private International Law (Oxford University Press, 2001) at 8.

13
Ibid. and references cited.

14
Ibid. at 9.

15
Ibid. at 13.

16
On issue estoppel in particular, see V.V. Veeder's article, hereafter, pp. 73-79.

17
Thoday v. Thoday, [1964] P. 181 at 197 (C.A.) (Diplock LJ).

18
Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), [1967] 1 A.C. 853 (H.L.).

19
The sophistication of issue estoppel was noted by Fullagar J in Jackson v. Goldsmith (1950), 81 C.L.R. 446 at 467-468 (High Court of Australia).

20
(1843) 3 Hare 100, 67 E.R. 313.

21
See the judgment of Lord Bingham in Johnson v. Gore Wood & Co., [2001] 2 W.L.R. 72 (H.L.). See also P.R. Barnett, supra note 12 at 24.

22
With regard to France, see the important study by R. Perrot & N. Fricéro, 'Autorité de la chose jugée' in Jurisclasseur Procédure civile, fasc. 554. With regard to Belgium, see A. Fettweis, Manuel de procédure civile, 2d ed. (Liège: Faculté de droit de Liège, 1987) at 267ff; J. van Compernolle, 'Considérations sur la nature et l'étendue de l'autorité de la chose jugée en matière civile', case comment on Belgian Cass. 1re, 10 September 1981, [1984] Revue critique de jurisprudence belge 241; J. van Compernolle & G. Closset-Marchal, 'Examen de jurisprudence (1985 à 1996)', [1997] Revue critique de jurisprudence belge 495 at 522.

23
See especially W.J. Habscheid (in collaboration with S. Berti), Schweizerisches Zivilprozess- und Gerichtsorganisationsrecht, 2d ed. (Basel: Helbing & Lichtenhahn, 1990) at § 39ff; W.J. Habscheid, Droit judiciaire privé suisse, 2d ed. (Geneva: Georg, 1981) at 305ff.

24
Article 500 NCPC.

25
Article 501 NCPC.

26
Article 455 NCPC.

27
R. Perrot & N. Fricéro, supra note 22, point out, however, that recently courts have adopted a more formalistic approach and that anything that does not formally appear in the operative part of the decision has no res judicata effect, as Article 480 NCPC does not allow reference to be made to the reasons for the decision, even if they are decisive.

28
R. Perrot & N. Fricéro, supra note 22 at §§ 187,188 and the French case law referred to.

29
See commentary on the award of 1979 in ICC case 3383, S. Jarvin & Y. Derains, Collection of ICC Arbitral Awards (1974-1985) [hereinafter ICC Arbitral Awards I], ICC Publication 433, 394 at 397.

30
Article III, which however only refers to arbitral awards as 'binding'.

31
See also the references cited in J.F. Poudret & S. Besson Droit comparé de l'arbitrage international (Zurich: Schulthess, 2002) at § 475ff.

32
P. Schlosser, 'Arbitral Tribunals or State Courts: Who must Defer to Whom?' in Arbitral Tribunals or State Courts: Who must Defer to Whom?, ASA Special Series No. 15 (Swiss Arbitration Association, 2001) 15 at 21.

33
US courts have also repeatedly affirmed that a res judicata objection to a new arbitration based on prior arbitration proceedings is a legal defence that, in turn, is a component of the dispute on the merits and must be considered by the arbitrator, not the courts. See e.g. Chiron Corporation v. Ortho Diagnostics Systems, Inc., 207F.3d 1/26 (9th Cir. 2000); John Hancock Mutual Life Insurance Cy v. Olick, 151F.3d 132 (3d Cir.1998); National Union Fire Insurance Cy v. Belco Petroleum Corp., 88F. 3d 129 (2d Cir. 1996). On the issue of res judicata in commercial arbitration, see R. Shell, 'Res Judicata and Collateral Estoppel Effects of Commercial Arbitration' (1988) 35 UCLA L. Rev. 623; S. Riback, 'Are Arbitrations Final?' (1995) 67:7 New York State Bar Journal 18 and 'Res Judicata and the FAA' (1988) 9 World Arbitration and Mediation Report 291.

34
See the judgment of Lord Diplock in Fidelitas Shipping Co. Ltd. v. V/O Exportchlep, [1965] 1 Q.B. 630.

35
M.J. Mustill & S.C.Boyd, The Law and Practice of Commercial Arbitration in England, 2d ed. (London: Butterworths, 1989) at 413.

36
E.g. pursuant to Article 1704(2)(c) JC or Article 1502-1 NCPC.

37
E.g. pursuant to Article 1704(2)(d) JC or Article 1502-3 NCPC.

38
E.g. pursuant to Article 1704(2)(j) JC.

39
E.g. pursuant to Article 1704(2)(g) JC or Article 1502-4 NCPC.

40
As affirmed by the French Court of Cassation; see D. Hascher, 'L'autorité de la chose jugée des sentences arbitrales', address to the French Committee on Private International Law, 7 February 2001, in Travaux du comité français de droit international privé, Pedone [forthcoming], and references cited.

41
(1992) XVII Y.B. Comm. Arb 186 at 198. See also Smithkline Beecham v. Biogen, Inc. 1996 WL 209897 (S.D.N.Y.), ASA Bulletin 1997.141. A dispute arose between the same parties to two different licensing agreements, one granting a licence for the world other than US and Japan and providing for arbitration in London under English law, and the other granting a licence for the US and providing for arbitration in New York under New York law. A first award under the first contract was rendered in favour of the claimant in London. The New York tribunal then proceeded with the second arbitration. It concluded that collateral estoppel did not affect the New York proceedings because the two arbitrations addressed 1) different agreements with different arbitration clauses and 2) different contractual rights. The New York arbitral tribunal found in favour of the defendants. See also the final award of 14 March 2003 rendered pursuant to the UNCITRAL Arbitration Rules in CME Czech Republic BV v. The Czech Republic, published on www.cetv-net.com at § 432ff.

42
It seems that in France, however, the question is still debated. See e.g. C. Vergne's case comment on Paris Court of Appeal (1st Suppl. Ch.), 21 March 1991, Rev. arb. 1993.94.

43
ICC Arbitral Awards I, supra note 28, 325.

44
Ibid. at 328.

45
On this issue see e.g. the award rendered in the ICSID case Amco Asia Corporation and others v. Republic of Indonesia, J.D.I. 1989.143 (Annot. E. Gaillard).

46
See the discussion on this issue in D. Hascher, supra note 40 at 11-16 and especially his commentary of the 1995 award in ICC case 8023.

47
(1990) XV Y.B. Comm. Arb. 30 at 56. See also annotation to ICC case 3383, ICC Arbitral Awards I, supra note 28 at 398: 'The solutions adopted in an arbitral award have res judicata effect with respect to another arbitral tribunal until such time as the validity of the award is challenged before the relevant state authority. In particular, it is not up to the second tribunal to check that the award satisfies the conditions that need to be met in order for it to be recognized by the judicial authorities.'

48
(1987) XII Y.B. Comm. Arb. 87 at 89.

49
Award of 28 November 1997 in ICC case 7061 [unpublished].

50
Award of 4 August 1995 in ICC case 7056 [unpublished].

51
Award of 1991 in ICC case 6363, (1992) XVII Y.B. Comm. Arb. 186 at 201.

52
Southern Pacific Properties (Middle East) Limited v. Arab Republic of Egypt (the 'Pyramid' case), decision on jurisdiction of 14 April 1988, (1991) XVI Y.B. Comm. Arb. 16 at 39.

53
Ibid. at 39-40.

54
Ibid. at 40.

55
A principle clearly stated by the ad hoc panel hearing the application to set aside the award rendered in the ICSID case Klöckner v. Cameroon and in many arbitral awards. See author's article on complex arbitrations referred to supra note 1 at 356 and the 1997 ICC award in case 8764 [unpublished] cited by F.-X. Train in his thesis Les contrats liés devant l'arbitre du commerce international (University of Paris X Nanterre, 2001) at 422. As Mr Train rightly points out (p. 423), privity of contract does not prevent trial courts from drawing on a deed foreign to one of the parties involved for material to help clarify their decisions.

56
(1993) XVIII Y.B. Comm. Arb. 80.

57
F.-X. Train, supra note 55 at 429.

58
See also the other examples cited by F.X. Train, supra note 55 at 433-34.