Res

Judicata
William S Dodge

Content type: Product: Max Planck

Encyclopedia entries Encyclopedia of Public
Article last updated: International Law [MPEPIL]
January 2006

Subject(s):
International organizations, practice and procedure — Arbitration — Mixed Claims Commissions —
Advisory opinions — Res judicata — Rule of law — General principles of international law — Revision of
judgments
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law
under the direction of Rüdiger Wolfrum.

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber:
EPIL Contributors; date: 11 May 2016

Electronic copy available at: http://ssrn.com/abstract=2778726

 A. The Notion
1 Res iudicata is the doctrine that a final adjudication by a court or arbitral tribunal is conclusive
(Judgments of International Courts and Tribunals; see Judgments of International Courts and
Tribunals, Revision of; Judicial and Arbitral Decisions, Validity and Nullity). It is said to have both a
positive and a negative effect. The positive effect is that a judgment or award is binding upon the
parties and must be implemented in good faith (bona fide). The negative effect is that an issue
decided in a judgment or award may not be relitigated. Res iudicata is most commonly associated
with its negative effect.

2 The rationale for the doctrine of res iudicata is two-fold. First, as a matter of public policy, there
must be an end to litigation. Second, as a matter of private justice, no one should be proceeded
against twice for the same cause (Ne bis in idem).

3 Res iudicata is widely accepted and applied by international courts and tribunals. The
International Court of Justice (ICJ) has held that its own judgments have the force of res iudicata by
virtue of Art. 60 ICJ Statute, which provides that such judgments are ‘final and without appeal’
(Corfu Channel Case [Assessment of the Amount of Compensation Due From the People’s
Republic of Albania to the United Kingdom of Great Britain and Northern Ireland] [Judgment on
Compensation] 248; Corfu Channel Case). Judge Anzilotti’s dissenting opinion in Interpretation of
Judgments Nos 7 and 8 (The Chorzów Factory) additionally characterized res iudicata as one of
‘the general principles of law recognized by civilized nations’ under Art. 38 (1) (3) PCIJ Statute (now
Art. 38 (1) (c) ICJ Statute; at paras 1–7; see also General International Law [Principles, Rules and
Standards]; General Principles of Law). International arbitral tribunals have also sometimes stated
that the doctrine of res iudicata is a rule of international law. The tribunal in the Trail Smelter
Arbitration (US v Canada) (1941) observed: ‘That the sanctity of res iudicata attaches to a final
decision of an international tribunal is an essential and settled rule of international law’ (at para.
1950).

B. The Requirements
4 ‘It is a well established rule of law that the doctrine of res iudicata applies only where there is
identity of the parties and of the question’ (Re Newchwang [GB v US] 324). Identity of the question
is sometimes divided into identity of the object or relief (petitum) and identity of the grounds (causa
petendi), so that Judge Anzilloti, for example, stated that there were ‘three traditional elements for
identification, persona, petitum, [and] causa petendi’ (Chorzów Factory Case, Opinion by M
Anzilotti para 1).

1. Identity of the Parties

5 For the doctrine of res iudicata to apply, the parties to the two proceedings must be the same.
Art. 59 ICJ Statute provides that ‘[t]he decision of the Court has no binding force except between
the parties and in respect of that particular case’. Similar provisions are found in treaties
establishing other tribunals for international disputes (Judicial Settlement of International Disputes),
such as Art. 1136 (1) North American Free Trade Agreement (1992) (‘NAFTA’). Even in the absence
of such a provision, however, international tribunals applying the doctrine of res iudicata have
required identity of the parties.

6 A recent application of the requirement that the parties be identical is a dispute involving the
Dutch company CME and the Czech Republic. The dispute gave rise to two arbitration[s]
(arbitration): one between CME and the Czech Republic under the Czech-Netherlands bilateral
investment treaty (the London Arbitration) and one between CME’s controlling shareholder Ronald
Lauder, a citizen of the United States, under the Czech-US bilateral investment treaty (the
Stockholm Arbitration). The London tribunal found in favour of the republic, which then argued that

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber:
EPIL Contributors; date: 11 May 2016

Electronic copy available at: http://ssrn.com/abstract=2778726

 the award was binding as res iudicata on the Stockholm tribunal. The Stockholm tribunal rejected
this argument in part because of the lack of identity of the parties, and the Svea Court of Appeals
reached the same conclusion when the republic moved to have the Stockholm award set aside.
The court observed that:

one of the fundamental conditions for … res iudicata is that the same parties are involved
in both cases …. Identity between a minority shareholder, albeit a controlling one, and the
actual company cannot, in the Court of Appeal’s opinion, be deemed to exist in a case
such [as] the instant one. (Czech Republic v CME Czech Republic BV 967.)

2. Identity of the Question

7 For the doctrine of res iudicata to apply, the question in the two proceedings must also be the
same. It is sometimes stated that both the object or relief sought (petitum) and the grounds (causa
petendi) must be identical. In practice, however, international tribunals have not allowed claimants
to avoid the effect of res iudicata by seeking different relief on the same grounds. Thus, in the
Delgado Case, a claimant who had been denied compensation for the rents, profits, and income of
land seized was not allowed to bring a new claim on the same grounds for the value of that land.

8 International courts and tribunals have denied res iudicata effect to an earlier proceeding when
the question in the later proceeding is new, even when it arose from the same facts. In the Haya de
la Torre Case [Columbia v Peru] [Merits] (Haya de la Torre Cases), the ICJ held that its earlier
determination that a grant of diplomatic asylum (Asylum, Diplomatic) by Columbia was illegal and
must be terminated was not res iudicata with respect to Peru’s subsequent claim that Haya de la
Torre be surrendered. The court said, ‘the question of the surrender of the refugee was not
decided by the judgment of 20 November. This question is new …. There is consequently no res
iudicata upon the question of surrender’ (Haya de la Torre Case [Columbia v Peru] [Merits] 80).

9 In Re Newchwang, an arbitral tribunal refused to give res iudicata effect to an earlier decision
that the Newchwang was not responsible for a collision with the US collier Saturn in a subsequent
suit alleging that the Saturn was responsible for the collision. The tribunal observed that ‘[w]hatever
… be the connection in fact between the two questions, they are not identical’ (Re Newchwang
324).

10 In the Case Czech Republic v CME Czech Republic BV 965 discussed above, the Stockholm
tribunal denied res iudicata effect to the London award in part on the ground that the two
arbitrations were based on different bilateral investment treaties, with comparable but not identical
provisions. In the set-aside proceeding, the Svea Court of Appeal, while not ruling out application of
res iudicata on that basis, observed ‘[t]he mere fact that the arbitrations were initiated under
different investment treaties which were entered into between different states … militates against
[res iudicata] being applicable at all’ (Czech Republic v CME Czech Republic BV 965).

C. Scope

1. Effect of Reasoning
11 The res iudicata effect of an international judgment or award may extend beyond the dispositif
to the reasoning that supports it. While noting in his Chorzów Factory dissent that ‘only the terms of
a judgment are binding’, Judge Anzilotti remarked that ‘it is almost always necessary to refer to the
statement of reasons to understand clearly the operative part’ (Chorzów Factory Case, Opinion by
M Anzilotti para. 2). Similarly, the Permanent Court of Arbitration (PCA) in United States v Mexico,
Re the Case of the Pious Fund of the Californias (Pious Fund Arbitration) observed:

that all the parts of the judgment or the decree concerning the points debated in the

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber:
EPIL Contributors; date: 11 May 2016

Electronic copy available at: http://ssrn.com/abstract=2778726

 litigation enlighten and mutually supplement each other, and that they all serve to render
precise the meaning and the bearing of the dispositif … and to determine the points upon
which there is res iudicata and which thereafter cannot be put in question. (At 17)

12 Dictum, on the other hand, has no res iudicata effect. An opinion that ‘is irrelevant to the point
actually decided … has no binding force’ (Polish Postal Service in Danzig [Advisory Opinion] 30).
The Franco-Venezuelan Mixed Claims Commission (Mixed Claims Commissions) accurately stated
the rule in the Compagnie Générale de l’Orénoque (1905):

Every matter and point distinctly in issue in said cause and which was directly passed
upon and determined in said decree, and which was its ground and basis, is concluded by
said judgment, and the claimants themselves and the claimant government in their behalf
are forever estopped from asserting any right or claim based in any part upon any fact
actually and directly involved in said decree. (At 355)

2. Decisions on Preliminary Objections

13 In general, decisions on preliminary objections lack res iudicata effect. The ICJ said in the
South West Africa Cases (Second Phase) (South West Africa/Namibia [Advisory Opinions and
Judgments]), ‘a decision on a preliminary objection could never be preclusive of a matter
appertaining to the merits, whether or not it has in fact been dealt with in connection with the
preliminary objection’ (at para. 59). Similarly, the NAFTA Chapter 11 tribunal in Waste Management
v Mexico observed ‘that, in general, the dismissal of a claim by an international tribunal on grounds
of lack of jurisdiction does not constitute a decision on the merits and does not preclude a later
claim before a tribunal which has jurisdiction’ (at 1323). The Waste Management v Mexico tribunal,
however, recognized an exception to this rule where a decision on jurisdiction necessarily decides
an identical issue later raised on the merits (ibid 1324).

3. Annulment Decisions
14 The res iudicata effect of an annulment decision may be more limited than the effect of a
decision on the merits. In the Amco v Indonesia Case (1988), the second tribunal reasoned that
because of the limited role of ad hoc committees within the scheme of the Convention on the
Settlement of Investment Disputes Between States and Nationals of Other States (‘ICSID
Convention’), res iudicata would attach only to the dispositif of an annulment decision and not to its
reasoning (at 552; Amco v Indonesia Case; see also International Centre for Settlement of
Investment Disputes [ICSID]).

4. Decisions of Domestic Courts

15 Historically, it has also been true that the decisions of national courts do not bind international
courts and tribunals as res iudicata. As the first tribunal in Amco v Indonesia Case (1984)
observed:

[A]n international tribunal is not bound to follow the result of a national court … [n]o matter
how the legal position of a party is described in a national judgment, an international
arbitral tribunal enjoys the right to evaluate and examine this position without accepting
any res iudicata effect of a national court. (At 460)

16 This limitation derived in part from the fact that both the parties and the question in the
international proceeding were not identical to those in the domestic one. Such reasons may carry
less force today when private parties may bring direct claims against governments that often
depend in part upon issues of domestic law. Thus, the NAFTA Chapter 11 tribunal in Azinian v
Mexico, despite its quotation of Amco, followed the decision of a domestic court, reasoning that ‘[a]

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber:
EPIL Contributors; date: 11 May 2016
 governmental authority surely cannot be faulted for acting in a manner validated by its courts
unless the courts themselves are disavowed at the international level’. (At 551)

D. Conclusion
17 Because the requirements of res iudicata are stringent, international courts and tribunals have
frequently reaffirmed the doctrine in principle while denying its application to the particular case.
Nevertheless, a rule of res iudicata remains necessary for the proper functioning of any legal
system—the international no less than the domestic. As the arbitral tribunal in the Trail Smelter
Arbitration observed: ‘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’. (At 1950–51)

Select Bibliography
B Cheng, General Principles of Law as Applied by International Courts and Tribunals
(Stevens London 1953) 336–72.
M Reisman ‘The Breakdown of the Control Mechanism in ICSID Arbitration’ [1989] Duke LJ
739–807.
V Lowe ‘Res Iudicata and the Rule of Law in International Arbitration’ (1996) 8 AfrJIntlCompL
38–50.
S Rosenne, The Law and Practice of the International Court (4th ed Nijhoff Leiden 2006) vol
3 Procedure.
I Scobbie ‘Res Iudicata, Precedent and the International Court: A Preliminary Sketch’ (1999)
20 AustYBIL 299–317.
W Dodge ‘National Courts and International Arbitration: Exhaustion of Remedies and Res
Iudicata Under Chapter Eleven of NAFTA’ (2000) 23 Hastings Intl&CompLRev 357–83.
Y Shany, The Competing Jurisdictions of International Courts and Tribunals (OUP Oxford
2003) 22–28, 164–73 and 245–55.
Committee on International Commercial Arbitration ‘Interim Report: “Res iudicata” and
Arbitration’ in AHA Soons and C Ward (eds) Report of the Seventy First Conference held in
Berlin 16–21 August 2004 (International Law Association London 2004) 827–61.
A Reinisch, ‘The Use and Limits of Res Iudicata and Lis Pendens as Procedural Tools to Avoid
Conflicting Dispute Settlement Outcomes’ (2004) 3(1) The LPICT 37–77.

Select Documents
Amco Asia Corporation and others v Republic of Indonesia (Case No ARB/81/1, 20
November 1984) (1993) 1 ICSID Rep 413.
Amco Asia Corporation and others v Republic of Indonesia (Case No ARB/81/1,
resubmission on jurisdiction, 10 May 1988) (1993) 1 ICSID Rep 543.
Azinian v Mexico (NAFTA Chapter 11 Arbitration Tribunal, 1 November 1999) (2000) 39 ILM
537.
CME Czech Republic BV v Czech Republic (Final Award) (Svea Court of Appeals, 14 March
2003) 426.
Compagnie Générale de l’Orénoque (1905) in
JH Ralston and WT Sherman Doyle (eds) Report of the French-Venezuelan Mixed Claims
Commission of 1902 (Government Printing Office Washington DC 1906) 244.
Czech Republic v CME Czech Republic BV (Svea Court of Appeals, 15 May 2003) (2003) 42
ILM 919.
Delgado Case (Spanish-US Claims Commission 1881) in
JB Moore (ed) History and Digest of the International Arbitrations to which the United

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber:
EPIL Contributors; date: 11 May 2016
 States Has Been a Party (Government Printing Office Washington DC 1898) 2196.
Haya de la Torre Case (Columbia v Peru) (Merits) [1951] ICJ Rep 71, 79.
In the Matter of the SS Newchwang (GB v US)
(American British Arbitration Claims Tribunal) in ‘Judicial Decisions Involving questions of
International Law’ (1922) 16 AJIL 301.
Interpretation of Judgments Nos 7 and 8 (The Chorzów Factory) (Separate Opinion of Judge
Anzilotti) PCIJ Rep Series A No 13.
Pious Fund of the Californias (Mexico v US) (1902) Hague Court Report 1.
Polish Postal Service in Danzig (Advisory Opinion) PICJ Rep Series B No 11.
South West Africa (Ethiopia v South Africa; Liberia v South Africa) (Merits) [1966] ICJ Rep 6.
The Corfu Channel Case (Assessment of the Amount of Compensation Due From the
People’s Republic of Albania to the United Kingdom of Great Britain and Northern Ireland)
[1949] ICJ Rep 244.
Trail Smelter Case (US v Canada) (1941) 3 RIAA 1905.
Waste Management, Inc v Mexico (Mexico’s Preliminary Objection Concerning the Previous
Proceedings) (NAFTA Ch 11 Arbitration Tribunal, 26 June 2002) (2002) 41 ILM 1315.

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber:
EPIL Contributors; date: 11 May 2016