RES IUDICATA У ЕНГЛЕСКОМ И АМЕРИЧКОМ ПРАВУ
RES IUDICATA IN ENGLISH AND AMERICAN LAW

Summary/Abstract: The term res iudicata refers to the general doctrine that an earlier and final adjudication by a court or an arbitration tribunal is conclusive in subsequent proceedings involving the same subject matter or relief, the same legal grounds and the same parties (the so-called "triple-identity" criteria). On one hand, res iudicata has a positive effect (judgment or award is final and binding between the parties) and, on the other side, a negative effect (the subject matter of the judgment or award cannot be re-litigated a second time, also referred to as ne bis in idem). The res iudicata principle applies in all principal legal systems to prevent the same claimant from, bringing the same claim against the exact same respondent. In mainly common law jurisdictions, the doctrine also applies to prevent the same parties from rearguing an issue that has been determined in earlier proceedings between them. The doctrine has been further extended in a limited number of common law jurisdictions to prevent a party raising issues in subsequent proceedings, between the same parties^ that could have been raised in the earlier proceedings, but were not. In international arbitration, the binding effect of arbitral awards is prescribed by many institutional rules. The institutional provisions expressly proscribe the positive res iudicata effect of an award, but they also imply that by agreeing to arbitration pursuant to such rules, the parties accept the negative res iudicata effect of any valid arbitral award. In international arbitral practice, awards are also generally regarded as having res iudicata effect, to a greater or lesser extent. There are many reported cases where commercial arbitral tribunals have applied res iudicata principles. Since arbitral tribunals are not necessarily required to apply the same procedural rules as domestic courts and have greater freedom to apply procedural rules that are appropriate for international arbitration (institutional international rules, and, increasingly uniform laws), there is a greater likelihood of harmonization of the rules referring to res iudicata, which would be an important incentive to the further, development of international trade.

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