The 24th volume of the Book Series Studi di diritto internazionale ed europeo of the Law School of the University of Milan – Il riconoscimento degli effetti del giudicato nell’arbitrato commerciale internazionale – has just been published. Authored by Michele Grassi – research fellow in International Law in the Department of Italian and Supranational Public Law at University of Milan – the book investigates the functioning of the res judicata doctrine in international commercial arbitration. The author has kindly provided the following abstract.
The description of the res judicata effects of a judicial decision raises complex issues, which have long been debated among legal scholars. From a transnational standpoint, the difficulties incurred in purely internal situations are further complicated by several variables. Domestic legal systems adopt diverging approaches when considering the theory of res judicata, and regulate differently the preclusive and conclusive effects of judgments. Consequently, the problem of determining the res judicata of foreign judgments in domestic litigation is that of identifying which law governs the preclusive and conclusive effects of those decision. Theoretically, in the state in which recognition is sought, the res judicata effects could be governed either by the lex fori or by the law of the system of origin of the foreign judgment (if not by a combination of the two laws). The complexities mentioned above are further compounded when one looks at the operation of the doctrine of res judicata in the context of international commercial arbitration, due to the natural uncertainties that characterise this dispute resolution mechanism. The book analyses the practice of arbitral tribunals and considers the solutions suggested by legal scholarship when confronted with the theory of res judicata in the arbitral context, noting that neither of these offer satisfactory answers to the problem. The book then suggests the adoption of a differentiated approach, depending on: (i) whether the assertion of the effects of a previous decision is aimed at challenging the jurisdiction of the arbitral tribunal or the admissibility of the claim, and (ii) the degree of transnationality of the arbitral proceedings.