Realization of res judicata principle in civil proceedings: the experience of foreign countries
The article is devoted to the analysis of res judicata as an essential element of the legal certainty. Res judicata is considered to be one of the main guaranties of the legal certainty principle in civil procedure which allows a stability of the court decisions in democratic society and increase the public confidence to judiciary.
The author analyzes national characteristics of the realization of the principle of res judicata in civil procedure of foreign countries. The author explores the preclusion effect of court decisions, highlighting two effects of the res judicata principle: positive and negative one. The negative effect of res judicata is aimed at preventing the re-consideration of identical disputes between the parties if the dispute has already been resolved by the court, in turn, the positive effect of res judicata allows the parties to refer to circumstances that have already been established by a court decision in the dispute between them, in new proceedings, where they are involved.
It is concluded that there are significant differences in the understanding of this principle in common law and civil law legal systems. The common law countries have a broad understanding of the res judicata principle, which includes positive and negative effects, and is implemented through such institutions as the claim preclusion and the issue preclusion. Civil law countries follow a narrow approach to understanding of res judicata principle, which is limited only by the negative effect and is reflected in the claim preclusion, which blocks filing an identical claim if there is a final court decision on the dispute between the parties.
In common law jurisdiction there is a wider conception of the “claim”, according to which it is understood in the context of entire dispute and comprise all claims based on the legal relationship between the parties, whether or not they were the subject of court proceedings. At the same time in civil law countries identity of the claims can be notified with the help of the triple identity test, which contains the identity of the subject of the claim, the identity of the cause of action and the identity of the parties of the claim.
Andrews N. (2012). Three Paths of Justice: Court Proceedings, Arbitration and Mediation in England. New York: Springer.
Hovaguimian Ph. (2017). The Res Judicata Effects of Foreign Judgments in Post-Award Proceedings: To Bind or Not to Bind? Journal of International Arbitration. Vol. 34. 1. 79-106.
Brekoulakis S. (2006). The Effect of an Arbitral Award and Third Parties in International Arbitration: Res Judicata Revisited. The American Review of International Arbitration. 2006. Vol. 16. 1. 177-209.
Schaffstein S. (2012). The Doctrine of res judicata before International Arbitral Tribunals: PhD Thesis. Geneva.
Van de Velden J., Stefanelli J. (2009). The Effect in the European Community of Judgments in Civil and Commercial Matters: Recognition, Res Judicata and Abuse of Process. London: British Institute of International and Comparative Law.
Friedenthal J.H., Kane M.K., Miller A.R. (2005). Civil procedure. Fourth Edition. Hornbook series. Thomson/West
Lilly G.C. (1993). The Symmetry of Preclusion. Ohio State Law Journal. Vol. 54. 2. 289-329.
Bursak A. (2016). Notes. Preclusions. New York University Law Review. 91. 1651-1683.
Restatement of the Law (Second), Judgment. ALI/UNIDRROIT, 1982.
Kevin M. (2016). Res Judicata as Requisite for Justice. Rutgers University Law Review. Vol. 68. 1067-1141.
De Matos Diogo A. (2018). Res Judicata “Beyond Borders”: Finality and Conclusiveness Of Prior Decisions In International Arbitration. Lisbon.