The ending of disputes or any suit is a main objective of arbitration. Most of
the arbitration award are voluntarily respected, so the protection given by the
doctrine of res judicata is rarely tested. As a result, the application is not
always well understood. This paper explores the scope of cause of action
estoppel, issue estoppel, and the abuse of process doctrine in the context of
arbitration proceeding internationally.
The research paper gives practical
guidance in the scope and limits of the given principle before UK, Singapore,
Australian courts. It concludes that the practitioners need to be aware of the
significant limitation of the doctrine of res judicata to evaluate the risk that
arbitral award may not fully determined a dispute.
In the international arbitration there is one of the fundamental objectives is
present i.e., finality of decision. While most of the arbitral award are
voluntarily respected and remarkably which has been devoted by the national
courts or commentators to the res judicata doctrine and estoppel.
While understanding the nuances of the estoppel and res judicata it can assist
practitioners to asses on the opportunities following an award and inform the
cause of action and pleadings.
This research paper gives the practical guidance on the scope of the given
doctrine to country like UK, Singapore and Australia. How res judicata applied
in arbitration and with the help of various other principle in different country
like UK, Singapore and Australia?
Doctrine of res judicata and final decision
Historically, inaccurate pleadings and judgment tended to cancel the different
facts of the res judicate doctrine, making the field more difficult to search.
The modern tendency has been to use the doctrine of res judicata to cover all
these given doctrines of estoppel. A final judicial and arbitral determination
animate the estoppel. In the arbitration it is well established that an award is
final and bonding and creates the doctrine of res judicata between the parties.
This doctrine of res judicata may be distilled into three conceptually through
inter-related with the principle i.e., cause of action estoppel, issue estoppel,
the abuse of process. The given principle is overlap and more than one may apply
to the same facts.
The cause of action estoppel is the narrowest and the strongest part of the res
judicata shield. It prevents a party from the asserting a cause of action or
defense that has been previously determined in the proceeding between the same
It never prevents two separate cause of action which is arising from the same
set out of facts. In practical way, it is more unlikely that party will attempt
or relitigate a matter which is having the same cause of action and decided by
the arbitral tribunal.
In the case of issue estoppel, it prevents the parties from seeking the
reagitate the issue that was in the reasoning of previous arbitral decision even
when the cause of action is different. It is broader concept then the cause of
action estoppel and it may be complicated to apply and protection it offers
successful parties in an arbitration to limitation.
In UK and Australia, the estoppel extends to issue that should have but not
actually raise in the earlier proceedings. In the doctrine of issue estoppel, it
may raise in respect of point but it didn't argue and in Singapore where
litigant raise a point but it concedes or fails to argue that's why Singapore
has preferred to apply the doctrine of abuse of process.
In the special circumstances, when the element of issue estoppel is established,
the court may be decline to apply the special circumstances doctrine.
In Singapore and UK, the issue estoppel doctrine is more flexible than the cause
of action estoppel.
Special circumstances are not a closed category and it will depend upon the
facts of the case. For example: 1. Default judgment 2. The revelation of new
material not reasonably discovered in the earlier proceeding.
The special circumstances exception and judicial tendency toward caution may
limit the scope of issue estoppel doctrine quite substantially. For the
practitioners it is very important to note the extent of limitation in asses the
risk of relitigating of matter which may determine in an arbitration.
In the case of abuse of process, this doctrine is voluntary appearance of the
inherent power which court of justice must be possess to prevent the misuse of
its procedure. In the context of res judicata doctrine from the given case
"Henderson vs. Henderson in UK
" and "Port of Melbourne authority vs. Anshun Pty
Ltd in Australia
Proceeding that are not estoppel it may be nevertheless constitute an abuse of
There are some points where proceeding would be abusive if:
- oppressive or unjustly harass the defendants
- dishonestly element
- produce inconsistent which involve relitigating a claim
- not argued which is abandoned
An arbitral award is the decision where it will be considering as res judicata
in any subsequent proceeding that the same parties is attempt to bring the case
against each other. In res judicata, it considered as final decision which
binding upon the parties.
Res judicata applies apply that the subject matter of judgment is previously
heard and final and cannot be relitigate as judgment is final and between the
parties which subject to any appeal and challenge.
The common law approached which allowed the various res judicata plea i.e., a
plea of cause of action estoppel, issue estoppel or abuse of process.
It is not possible to list all the comprehensive possible form of abuse so one
cannot any fast rule to determine on the given facts.
Identity of parties
In the principle of cause of action estoppel, the parties to the earlier and
subsequent proceeding must be same. Where a party commence a proceeding in a
representative capacity it will be also binds the person which they are
representing. The person who acts in a representative capacity may sue
separately in their own capacity.
In case of issue estoppel, the requirement for the parties in the earlier and
subsequent proceeding also applied to issue estoppel. The so called broader,
approach or the principle to issue estoppel in which one that didn't strictly
require the identity of parties.
There is one case which dealt with issue estoppel and considered that collateral
estoppel i.e., "Rachel S. Grynberg, Miriam Z. Grynberg and RSM Production
Company v. Grenada" in which it is well established as a general principle of
law applicable in international arbitral tribunal being a species of res
In the principle of abuse of process, in the litigation this doctrine is broad,
flexible and merit based which does not require any identity of parties to same
in the UK and Singapore.
But the presence of new party it will be very difficult to establish that a
subsequent proceeding is abusive. In the case of arbitration, UK court have made
that clear that special circumstances will be arbitral determination that
prevent the litigation or arbitration where the parties are not same.
In Australia the court haven't yet abandoned the requirement of identity of
parties, anshun estoppel has been limited to situation where the parties to the
earlier subsequent proceeding are same.
In the international investment tribunal have applied a civil law approach to
res judicata in the case of "Gavazzi v. Romania" where it is applied a triple
identity criterion to consider that there was no res judicata as under the
international law three condition must be fulfilled for a decision to binding
effect in later proceeding i.e., object of claim, the cause of action and the
parties are identical.
This research paper concludes that the doctrine of res judicata protects the
side of international arbitration by ensuring finality of the disputes. As we
know, most of the arbitral award are voluntarily respected and the protection
offered by the doctrine of res judicata is rarely tested.
In the practical term, it says that the shield offered by the doctrine of res
judicata may in fact be less certain and less effective than it is commonly
assumed. As we know, that cause of action estoppel is narrow but strongest
principle. Issue estoppel is not so simple to apply and the court have to
exercise caution in deploying it.
So the special circumstances is exception to the doctrine which has also
increased scope in the UK and Singapore. The principle of abuse of power which
is rarely deployed to preclude the proceeding. However, the practitioners must
be aware of the limitation of the doctrine of res judicata to more accurate and
assess the risk associated with arbitration and even in situation where appeal
rights are also heavily circumscribed.
The international disputes are becoming more complex which involve multi
proceeding that means more arbitral tribunals will have to rule on the doctrine
of res judicata issues. By this it may increase the no. of arbitral award will
outcome especially in international commercial arbitration.
- Rachel S. Grynberg, Miriam Z. Grynberg and RSM Production Company v.
Grenada ICSID Case no. ARB/10/6, Award,10 December 2010 para 4.6.6; amco
asia corporation v. republic Indonesia decision on May 10, 1988.
- Article 1355 of the French Civil Code which reads as follows: "The
authority of res judicata applies only with respect to the subject-matter of
the judgment. The subject-matter of the claim must be the same; the claim
must have the same ground; the claim must be between the same parties, and
brought by and against them in the same capacity." Which is retrieved on
24th April 2022.
- Effem foods pty ltd v. Trawl industries of Australia pty ltd (1993) 43
FCR 510 538 39 (GUMMOW J) which is retrieved from the website of http://www.arbitrationmatter.com
- Varun Ghosh BA (HONS), LLB (west Aus.); LLM (cantab) is a senior
associate at king & wood Mallesons, Perth and sessional lecturer at
university of western Australia which is retrieved on 24th April 2022.
- Gary B Born, international commercial arbitration (2nd edition, Kluwer
Law international, 2014) 3741.
- See e.g., Henderson v Henderson (1843) 3 Hare 100 which is retrieved
from the website of arbitration/resjudicata.com
- Res judicata in arbitration is given in the website of http://www.acerislaw.com
which is retrieved on 24th April 2022.
- The example of case and judgment related to arbitration in res judicata
which is retrieved from the website of http://www.blog.ipleader/arbitration/resjudicata.com
- An uncertain shield: Res judicata in arbitration is retrieved from the
international commercial arbitration matter which there are some case
related to some principle from the website http://viamediationandarbitrationcenter.com