The Preclusive Effect of National Court Decisions in International Investment Arbitration – Res Judicata or Issue Estoppel Applicable or Not?

46 Pages Posted: 12 Jun 2017

See all articles by Philippus Jooste

Philippus Jooste

Victoria University of Wellington, Faculty of Law, Student/Alumni

Date Written: September 1, 2016

Abstract

It is accepted that a breach of an international investment agreement does not necessarily constitute a breach or violation of an investment treaty or international law norm applicable between an international investor and a host state. It is common that the adjudication of breaches of these agreements be determined by the host state’s national courts or private tribunals. These national courts and tribunals determine issues of law and fact and these issues may again be pertinent in international investment arbitration – in the context of an alleged violation by a host state of the relevant investment treaty or international law norm. The view held in some investment awards is that the international investment tribunal is bound by these national court judgements under the principles of res judicata or issue estoppel, unless these determinations were made in breach of the relevant investment treaty or international law. The view held in other awards is that it is not bound. This paper investigates the law, literature and awards on the question as to what extend the international investment tribunal should be bound by these national determinations. It concludes that in the absence of any express agreement between the parties otherwise, the international investment tribunal is bound by these national court determinations, and hence res judicata or issue estoppel applies – subject only to review under general principles or customary rules of international law.

Keywords: international investment arbitration, international law, res judicata, issue estoppel

JEL Classification: K00, K10, K12, K30

Suggested Citation

Jooste, Philippus, The Preclusive Effect of National Court Decisions in International Investment Arbitration – Res Judicata or Issue Estoppel Applicable or Not? (September 1, 2016). Victoria University of Wellington Legal Research Paper, Student/Alumni Paper No. 15/2017. Available at SSRN: https://ssrn.com/abstract=2984735

Philippus Jooste (Contact Author)

Victoria University of Wellington, Faculty of Law, Student/Alumni ( email )

PO Box 600
Wellington, Victoria 6140
New Zealand

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