On The Issue Of Res Judicata In International Commercial Arbitration

Although res judicata(or res indicata)is a widely accepted principle of law,we are lack of a set of uniform rules of res judicata in international commercial arbitrations.The problem originates from the reality that rules of res judicata vary considerably from jurisdiction to jurisdiction and are deemed as mandatory rules or parts of public policy in domestic law.The immediate cause of the conflict of law is the ambiguity of the connection point,which makes it possible for law in the arbitration seat,law in the recognition/enforcement state,or law governed the arbitration agreement to apply.In the First Section,the writer try to demonstrate that res judicata doctrine in international commercial arbitration is neither mandatory nor parts of public policy,and therefore the parties could compose the rules in accordance with their autonomy.And then we could diminish or even dispel the conflict of law by formulating uniform rules which is in the form of soft law for arbitrators or lawyers to refer to,and for the parties to choose.In the Second and Third Section,on the basis of comparative law research over major jurisdiction and summary of the practices of major arbitral institution,the author try to figure out whether the uniform rules are feasible approach and attempt to refine some pieces where they are.In the Forth Section,the focus is converted to procedural awards or orders,and the author,having in mind that these awards/orders usually involves the division of powers between domestic courts and arbitral tribunals,opposes to the overarching answer and instead support careful analysis case by case(Chapter four).Now that the conlusion of the First to the Forth Sectionis principally academic theory,the analysis and comparative law research are still important to practitioners.The author hope this research will be helpful,even slightly,to both researchers and practitioners.