The Investment Treaty Arbitration Review: res judicata
By simple definition, res judicata refers to a doctrine that precludes re-litigation of a matter that has been already adjudicated by a court or an arbitral tribunal. The decision of the respective court or the tribunal is considered to be final with the binding effect over the same parties concerning the same subject matter or relief on the same legal grounds.2 While the application of the doctrine differs by jurisdiction, there seems to be a general consensus that the basic concept of res judicata is commonly incorporated into many domestic legal systems and also accepted as part of the public international law.3
Res judicata has been applied to prevent double recovery and inconsistent decisions resulting from duplicative proceedings.4 Indeed, multiple treaties reflecting the general international practice5 explicitly uphold the res judicata doctrine, stating that the cases that have already been decided are final with the binding and enforceable effect. However, as it precludes the reconsideration of the subject matter of a decided case,6 there could be a prejudicial effect to the parties who wish to bring the case to a different forum. Therefore, it is of particular importance to precisely understand the nature of the res judicata doctrine to properly understand its positive and negative effects.
Jurisprudence on res judicata under international law seems to be still developing with many complex issues remaining unanswered, particularly in the field of international investment arbitrations where public international law comes into play.7 This chapter attempts to shed some light on the overall landscape of various approaches to issues revolving around res judicata in the context of international investment arbitration. To this end, the following sections of this chapter focus on, among other topics, (1) the concept of res judicata (Section II), (2) the elements of the doctrine (Section III), (3) its scope and effect (Section IV) and (4) waiver (Section V).
II The concept of res judicata in international investment arbitration
Before discussing the application of res judicata in international investment arbitration, one may wish to ascertain other legal concepts similar to, but must be distinguished from, the doctrine of res judicata. These include, among other concepts, stare decisis and lis pendens, which are (along with res judicata) often used interchangeably to cope with concurrent or multiple proceedings.
i Stare decisis
First, stare decisis (which means 'stand by what is decided' in Latin) or doctrine of precedent is a common law principle requiring a specific principle of law – created by a court – be binding to another court when deciding on identical issues over similar facts.8 While both res judicata and stare decisis concern the binding effect of an adjudicative decision to a subsequent court, they are substantially different. For example, (1) stare decisis applies to not only the parties of the previous case but also to other non-parties, while res judicata binds only the same parties of the prior decision in the subsequent case.9 Also, (2) stare decisis applies as a law governing later cases with similar issues and facts, while res judicata works as a final conclusion of a specific dispute with a preclusive effect, preventing the same dispute from re-opening.10 While the concept of stare decisis usually applies within a domestic judicial system (particularly in common law jurisdictions), it does not apply to any dispute brought under the public international law before international courts or arbitral tribunals.11 This is expressly stated in Article 59 of the State of the International Court of Justice: '[t]he decision of the Court has no binding force except between the parties and in respect of that particular case'. Also, a number of tribunals of investment arbitrations share the same view for arbitral awards,12 noting that such arbitral precedents would only serve, at best, as persuasive authorities for comparable legal questions.13
ii Lis pendens
Second, lis pendens (meaning a 'lawsuit pending' in Latin) describes a 'situation in which parallel proceedings, involving the same parties and the same cause of action, are continuing in two different fora at the same time'.14 Thus, the concept of lis pendens differs from res judicata, as it primarily concerns the concurrent state of pending disputes involving the same parties with identical causes of actions. A lis pendens situation occurs when there is the repetition of a lawsuit already in progress and, therefore, there are redundant claims. One may determine such duplicative claims by applying a 'triple identity test' that requires the same party, the same object and the same cause of action to be found in the concurrent claims.15 This triple-identity test is also used in applying res judicata to determine the identity of prior and subsequent cases.16 That said, this test conflates the nature of the two doctrines because their effects are starkly different. Lis pendens would not deprive the parties of opportunities to pursue remedies through these concurrent claims (for instance, by consolidating the cases), while res judicata would not allow such opportunities because the re-opening of the same dispute is prohibited from the outset. Therefore, an adjudicator, whether a court judge or arbitral tribunal, usually applies stricter identity tests for res judicata than lis pendens.17
III Elements of res judicata
Traditionally, res judicata is applicable in two different disputes only where the following five conditions are met:18 (i) same legal order; (ii) same parties; (iii) same object (petitum); (iv) same ground of case (causa petendi); and (v) finality and binding effect of the prior award. It is notable that the second to fourth conditions (i.e., the same parties, petitum and causa petendi), taken together, constitute the 'triple-identity test' briefly discussed above. Some commentators combine the petitum and causa petendi into one element by considering whether there is 'the identity of question or issue' between two disputes.19 Each of these elements is further examined below.
i Same legal order
The doctrine of res judicata may apply in the context of international arbitration only where both preceding and subsequent proceedings share the same 'legal order'.20 For example, in Helnan International Hotels v. Egypt, the tribunal found that a national court and a commercial arbitral tribunal have different legal orders and, therefore, their decisions cannot preclude each other under the doctrine of res judicata:
A national court and even less a private arbitral tribunal do not have the same authority. They are not performing their duties in the same legal order and their jurisdiction does not have the same scope . . . a decision by a national court or a private arbitral tribunal cannot be opposed as res judicata to the admissibility of an action filed with an international arbitral tribunal. Indeed, either the national court or the private arbitral tribunal did not dispose of that action or had no jurisdiction to do it.21
Similarly, given that the legal order of international investment arbitration is different from that of national courts, tribunals of the former are not bound by the decisions of the latter.22 Also, as there is a difference between international investment and commercial arbitrations, the International Law Association (ILA) viewed that the investment dispute regime 'pertains more to public international law than to international commercial arbitration or at least to the hybrid legal order of BIT arbitrations'.23 The ILA thus indicated that its policy recommendation on the res judicata for commercial arbitration did not apply to international investment disputes. To this extent, national courts, commercial arbitration and investment arbitration seem to have different legal orders from each other, precluding the res judicata effect among themselves.
A fork-in-the-road clause is generally intended to have a preclusion effect similar to res judicata, as it normally requires an investor to choose to bring its claims before either the host state's domestic court or international arbitral tribunal.24 However, this choice neither results from, nor stands for, res judicata. A fork-in-the-road clause would be applicable only when a relevant investment treaty contains it as agreed by the contracting parties of the underlying treaty. On the contrary, res judicata does not need to be included in a treaty unless the contracting parties otherwise agree to exclude the application of the doctrine.25
ii Same parties
In addition to the identity of legal orders between two cases, one must also scrutinise the identity of the parties between the previous and subsequent disputes before applying res judicata. This test seems to be required for any res judicata principles existing across jurisdictions.26 Yet, the detailed standard applicable to this factor or the degree of assessment needed for the identity is still unclear in the context of investment arbitration.27 The main issues often arising from investment arbitrations include, among other things, (1) whether a controlling shareholder of a company and the company under his or her control, or (2) companies under the same business group or those controlled by the same shareholders, respectively, should be considered the 'same parties' for the purpose of res judicata.28 The relevant jurisprudence shows differing views on these questions.29
First, there is a line of jurisprudence that takes an 'economic approach' by flexibly categorising a group of affiliate entities into the same party.30 This approach, which is more observed in ICSID arbitrations than other forums, generally intends to prevent individual companies of a single economic entity (e.g., a corporate group) from re-litigating 'the same dispute under the disguise of separate identities'.31 For example, in Orascom v. Algeria, the tribunal dismissed an investor's claim as it was brought by the same investor who had commenced a separate investor–state arbitration against the same state through its parent company. Specifically, a Luxembourgian investor made investments in an Algerian telecommunication service provider through a minority shareholding in an Egyptian holding company and commenced an ICISD arbitration against Algeria in October 2012 under the Algeria–BLEU (Belgium-Luxembourg Economic Union) bilateral investment treaty (BIT).32 The tribunal noted that the Egyptian holding company, in which the investor had direct shareholding, also commenced a similar ad hoc arbitration against Algeria under the UNCITRAL Arbitration Rules and the Egypt–Algeria BIT in April 2012, and this arbitration was eventually settled in April 2014. Given the repetitive nature of these two cases, the tribunal decided that the Luxembourgian investor's claim was inadmissible because the said two cases shared the same parties.33 The tribunal viewed that the claimant committed an 'abuse of rights' by utilising corporate entities with the same economic interest in initiating two redundant proceedings:
In particular, an investor who controls several entities in a vertical chain of companies may commit an abuse if it seeks to impugn the same host state measures and claims for the same harm at various levels of the chain in reliance on several investment treaties concluded by the host state . . . In other words, several corporate entities in the chain may be in a position to bring an arbitration against the host state in relation to the same investment. This possibility, however, does not mean that the host state has accepted to be sued multiple times by various entities under the same control that are part of the vertical chain in relation to the same investment, the same measures and the same harm.34
Although the tribunal did not specifically mention the doctrine of res judicata in its award, it implied a basis to assess the identity between parties from two different cases for the purpose of res judicata analysis in investment arbitration.
Another line of jurisprudence suggests a 'formalistic approach' that strictly draws a distinction between individual entities existing within the same economic group. The seminal cases are CME v. Czech and Lauder v. Czech. These two arbitral cases were both brought against Czech under UNCITRAL Arbitration Rules based on, respectively, the Netherland–Czech Republic BIT and the United States–Czech Republic BIT. The claimants in these cases, i.e., CME Czech Republic BV and Mr Ronald S Lauder, were in the same corporate group, as the former was entirely controlled by the latter. The tribunal in the Lauder case decided in 2001 that the investor (Mr Ronald S Lauder) was not entitled to any damages.35 The CME tribunal decided to the contrary in 2003, however, ordering the state to compensate the investor (CME Czech Republic BV).36 In these disputes, the CME tribunal did not give any res judicata effect to the Lauder award by finding that the two claimants were not identical and that their claims were grounded on different investment treaties.37 This formalistic approach has been heavily criticised as it resulted in starkly different outcomes even though the two investors were within a large corporate group with the same economic interests.38 Yet, such a negative view on the approach should be qualified to the extent that the Czech government in the CME case expressly waived its right to raise any objection on either lis pendens or res judicata.39 One may consider that the result could have differed if the Czech government did not waive its res judicata objection.
iii Same question or issue
Another essential element to invoke res judicata is the identity of question or issue. This element requires both identity of object (petitum) and identity of ground (causa petendi) between two claims.40 The identical 'object' (petitum) means that the same type of relief is sought, and the identical 'ground' (causa petendi) refers to a situation where the same rights and legal arguments – constituting the same cause of action –are asserted in two separate cases.41 The majority of legal commentators indicate that such identity of petitum and petendi must be determined through a holistic and substantive approach that requires reviewing all relevant facts and circumstances.42 However, arbitral tribunals appear to take differing views depending on the underlying treaties of investment arbitrations. For example, in the Southern Bluefin Tuna case, which concerned Japanese fishing practices in 2000 under the 1982 UN Convention on the Law of the Sea (UNCLOS), the tribunal took the holistic approach.43 While the claimant asserted its claims based on UNCLOS, the tribunal ruled that the claim was the same as that of another dispute arising from a different international convention: the Convention for the Conservation of Southern Bluefin Tuna 1993 (Blufin Convention). Although the tribunal construed the two conventions to be irreconcilable with each other,44 it found that the legal questions, along with the parties and legal orders, of the two disputes were in fact identical.45 Therefore, the UNCLOS tribunal found no jurisdiction over the case as it is barred by the res judicata of the decision rendered under the Blufin Convention tribunal.46 On the other hand, in the CME v. Czech, the UNCITRAL tribunal took a more formalistic approach in determining the identity of petitum and petendi between the two arbitral cases (i.e., the CME case and Lauder case). It held that the legal questions raised in the two cases were not identical for the reason that they arose from two different international investment agreements.47 Accordingly, as discussed above, the CME tribunal did not apply res judicata to prevent the re-litigation of the issues previously resolved in the Lauder case.48
iv Existence of final and binding decision
The last element of res judicata in international investment arbitration concerns whether an arbitral award in the earlier proceedings is final and binding.49 This element would be met only when the previous arbitral award can no longer be challenged before a national court in the place of arbitration,50 and this final nature of the award is fully accepted in the forum where res judicata is invoked.51 A few issues, which still remain unexplored in the field of international arbitration, could arise from this element, particularly regarding whether a certain type of decisions is final and binding. Such decisions in the arbitration settings include, inter alia, (1) partial awards, (2) decisions on preliminary objections and (3) decisions on provisional or interim measures.
There seem to be differing views on whether a partial award could have res judicata effect. The ILA takes a positive position that both final and partial awards may have res judicata because they could entail the final disposition of disputes.52 Also, a line of ICSID jurisprudence seems to follow this position as indicated by the majority opinion in ConocoPhilips v. Venezuela.53 The ConocoPhilips case was a seminal case where an ICSID tribunal delved into the res judicata effect of its partial award rendered in an earlier stage of the same proceedings.54 The majority found a res judicata effect even though new prima facie evidence, which was inadvertently missing in an earlier stage, showed a material error in the partial award.55 The dissenting opinion heavily criticised the majority's conclusion, stating that the res judicata effect granted under such circumstances was inconsistent with the ICSID's unique procedural rules and systems, which was a lex specialis to those of general international law.56 The majority apears to have emphasised procedural clarity and efficiency, given the recent arbitral practice that tends to resolve a single proceeding for a bifurcated (or even trifurcated) procedural stage. Yet, as many commentators still take positions sympathetic to the dissenting opinion,57 more detailed discussions will likely follow for legal scholars and practitioners to reach a certain level of consensus on this question.
Decisions on preliminary matters
Preliminary matters, such as questions relating to arbitral jurisdiction, admissibility, and applicable laws generally do not concern substantive disputes regarding the merits of the case. The finality and binding effect of such preliminary decisions remain without clear answers. Some commentators deny the res judicata of preliminary matters in the first place,58 whereas a few other commentators, including the ILA, take the position that a tribunal's preliminary dispositions, such as a decision on jurisdiction, may have res judicata effect toward the subsequent adjudication on the same matter.59 On the other hand, there have been arbitral tribunals that took a middle ground, as in Waste Management, Inc. v. Mexico.60 In this case, an ICSID tribunal viewed that res judicata for a jurisdictional decision under the North American Free Trade Agreement (NAFTA) Chapter 11 should be denied except when an identical issue is disputed again during the merit phase:
. . . 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. The same is true concerning inadmissibility.61
. . . But at whatever stage of the case it is decided, a decision on a particular point constitutes a res judicata as between the parties to that decision if it is a necessary part of the eventual determination and is dealt with as such by the tribunal.62
Decisions on provisional or interim measure
Lastly, there seems to be a consensus that an arbitral tribunal's decision on provisional or interim measures does not constitute res judicata.63 For instance, the tribunal in Millicom v. Senegal denied the res judicata of provisional measures by indicating that provisional measures 'do not have the same authority as an issue already judged':
It should be added that provisional measures, which are temporary in nature and by definition, may be modified or cancelled at any time by the Arbitral Tribunal, do not have the same authority as an issue already judged (res judicata), are valid only for as long as the proceedings last and become automatically null and void if the Arbitral Tribunal rules that it does not have jurisdiction to hear the dispute.64
IV Scope of res judicata in international arbitration
The next question that could be raised about res judicata is the exact scope of its application. That is, one could argue that the effect of the res judicata is limited only to the operative part (the dispositif) of the earlier decision or it could be extended to cover some or all of its reasonings (the motifs).65 In Apotex v. U.S., the ICSID tribunal, which was constituted under NAFTA Chapter 11, closely addressed this issue with great detail based on various precedents from international courts and arbitral tribunals.66 The Apotex tribunal explained that a tribunal needs to consider both the dispositif and the motifs to find the relevant portion of the prior decision for res judicata purposes, indicating that 'international tribunals regularly look to the prior tribunal's reasons and indeed also to the parties' arguments, to determine the scope of what was finally decided in that earlier proceeding'.67 On this basis, it concluded that 'relevant reasons can be read together with the operative part for the purpose of applying the doctrine of res judicata in this arbitration, similarly to the position under international law'.68
On the other hand, the res judicata of an annulment decision rendered pursuant to Article 52 of the ICSID Convention may be more limited than the effect of a decision on the merits. For instance, the tribunal in Amco Asia Corporation v. Indonesia reasoned that, given the limited role of ad hoc committees as envisioned in the ICSID Convention, res judicata would attach only to the dispositif of an annulment decision, not to its reasoning.69
In commercial arbitration, where party autonomy dictates, parties may agree to waive res judicata of a disposition rendered by a previous tribunal.70 However, no substantive discussion has developed on this issue in connection with investment arbitration. In CME v. Czech, as briefly discussed above, Czech explicitly waived its res judicata defence without any objection to this waiver, and the tribunal considered this fact in denying the res judicata of the Lauder award.71 The CME tribunal thus could not have any chance to substantively review the validity of Czech's waiver of the res judicata. That said, in principle, one may argue that a party's waiver would not be allowed in investment arbitration, given that the public nature of the international investment law regime would prohibit such a waiver by a private decision.72
In the international investment law regime, uncertainty seems to be the only certainty with many unsettled legal questions that need to be further explored. The doctrine of res judicta, which is an important legal mechanism to prevent unjust double recovery or unnecessary, repetitive legal proceedings, is not an exception to that uncertainty. While the res judicata principle applicable in national courts generally is based on well-established rules under domestic laws, the same does not apply to international investment arbitration. However, a few general aspects of res judicata under domestic laws could be applied to international investment arbitration. In any event, far more areas of international investment arbitration remain uncharted for res judicata. Therefore, a legal practitioner should treat the relevant discussions found in arbitral precedents or opinions of legal commentators as a starting point for further research rather than as established rules. Indeed, jurisprudence in this area requires close and consistent monitoring in the future.
1 Junu Kim is a partner, Sejin Kim is a partner and Yoo Joung Kang is a senior associate at Bae, Kim and Lee LLC.
2 International Law Association, Interim Report: 'Res judicata' and Arbitration (2004) (hereinafter ILA Interim Report), p. 2 ('The term res judicata refers to the general doctrine that an earlier and final adjudication by a court or arbitration tribunal is conclusive in subsequent proceedings involving the same subject matter or relief, the same legal grounds and the same parties').
3 id, p. 18 ('It is widely accepted that res judicata is also a rule of international law'); M Kinnear, GR Fischer, JM Almeida, LF Torres and MU Bidegain (eds), Building International Investment Law: The First 50 Years of ICSID, Chapter 5 Res Judicata, p. 56 (Wolters Kluwer, 2015) ('Res judicata is widely recognized across national legal orders, and universally accepted by international courts and tribunals as a rule of general international law'); Jacob van de Velden, Finality in Litigation and Practice of Preclusion - Res Judicata (Merger and Estoppel), Abuse of Process and Recognition of Foreign Judgments, p. 30 (Kluwer Law International, 2017).
4 M Kinnear et al. (see footnote 3), p. 55.
5 For example, Article 53(1) of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID) stipulates that '[t]he award shall be binding on the parties and shall not be subject to any appeal or to any other remedy except those provided for in this Convention'. Also, Article III of the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards provides that '[e]ach Contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following argument'. See also ILA Interim Report (see footnote 2), p. 2 ('Res judicata is said to have: a positive effect (namely, that a judgment or award is final and binding between the parties and should be implemented, subject to any available appeal or challenge) . . . The positive effect is largely uncontroversial').
6 id. ('namely, . . . the subject matter of the judgment or award cannot be re-litigated a second time, also referred to as ne bis in idem').
7 PJ Martinez-Fraga and HJ Samra, 'The Role of Precedent in Defining Res Judicata in Investor-State Arbitration' (2012) International Law, pp. 421, 423–424, 433; A Aman Prasad, Res Judicata: A Boon or A Bane for International Investment Tribunals? (Uppsala University, 2020), pp. 5, 7.
8 S Wilson, H Rutherford, T Storey, N Wortley and B Kotecha, English Legal System, Chapter 2. An overview of the English legal system (Oxford University Press, 2020), p. 36 ('the doctrine of stare decisis (stand by what is decided), indicating when one court is bound by a principle of law coming from another court').
9 M Thomas and C McGourlay, English legal system concentrate: law revision and study guide, 2nd edn (Oxford University Press, 2020), p. 96 '[T]there is a presumption known as stare decisis . . . which means 'to stand by decisions'. This presumption exists only in cases of binding authority and does not apply to persuasive authorities. It is important to note . . . that there is a difference between stare decisis and res judicata; the latter referring to the binding nature of the decision on the parties to that case, as opposed to other parties. The Latin phrase translates roughly to 'the matter has been settled' and refers to situations where the case has now concluded for those parties').
11 A Gillespie and S Weare, The English legal system, 7th edn (Oxford University Press, 2019); M Dixon, R McCorquodale, S Williams and R McCorquodale, Cases & materials on International law, 6th edn (Oxford University Press, 2016), p. 114 (in Trendtex Trading Corp v. Central Bank of Nigeria, a famous English Judge Lord Denning also acknowledged that '[i]nternational law knows no rule of stare decisis'  QB 529, 554).
12 For example, the tribunal of AES Corporation v. Argentine Republic said that '[t]here is no rule of precedent in general international law; nor is there any within the specific ICSID system for the settlement of disputes between one State party to the Convention and the National of another State Party . . . Each tribunal remain sovereign and may retain, as it is confirmed by ICSID practice, a different solution for resolving the same problem.' (ICSID Case No. ARB/02/17, Decision on Jurisdiction, 26 April 2005, paras 23(d), 30)
13 For instance, the tribunal of Liberian Eastern Timber Corporation v. Republic of Liberia stated that 'though the tribunal is not bound by the precedents established by other ICSID tribunals, it is nonetheless instructive to consider their interpretations'. (ICSID Case No. ARB/83/2).
14 International Law Association, Final Report on Lis Pendens and Arbitration (2006), para. 1.2 (hereinafter ILA Final Report); J Fawcett (ed.), 'Declining Jurisdiction in Private International Law', Report to the XIVth Congress of the International Academy of Comparative Law, 1994 (Oxford University Press, Oxford, 1995), p. 27 (emphasis added).
15 H Wehland, The Coordination of Multiple Proceedings in Investment Treaty Arbitration (Oxford, 2013), para. 4.81; UN Commission on International Trade Law (49th session), UN General Assembly: Concurrent proceedings in international arbitration (2016) (hereinafter, UNCITRAL Report on Concurrent Proceedings), p. 7.
16 ILA Interim Report (see footnote 2), p. 2.
17 UNCITRAL Report on Concurrent Proceedings (see footnote 15), para. 26 ('The Brussels Regulation 1215/2012 . . . may shed some light on the application of lis pendens to concurrent proceedings as it provides less strict conditions. Article 29(1) of the Brussels Regulation provides an illustration of a lis pendens mechanism in the context of civil litigation proceedings . . . Article 30 of the Brussels Regulation also sets out a discretionary rule for “related actions”, allowing for concentration of related or connected disputes in one forum. Article 30.3 provides that “actions are deemed to be related where they are so connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgements resulting from separate proceedings''').
18 Martinez-Fraga et al. (see footnote 7), p. 421; Prasad (see footnote 7), pp. 9–10; ILA Interim Report (see footnote 2), pp. 19–22; International Law Association, Final Report on Res Judicata and Arbitration (2006), para. 29; Kinnear et al. (see footnote 3), pp. 56–57.
19 WS Dodge, Res Judicata (2006) Max Planck Institute for Comparative Public Law and International Law, see title B. 2.; A Reinisch, 'The Use and Limits of Res Judicata and Lis Pendens as Procedural Tools to Avoid Conflicting Dispute Settlement Outcomes' (2004) 3 The Law & Practice of International Courts and Tribunals, see title VIII at p. 61.
20 K Hobér, Res Judicata and Lis Pendens in International Arbitration, Hague Academy of International Law, Recueil des Cours Vol. 366 (Martinus Nijhoff 2014), see generally pp. 126–190; Prasad (see footnote 7), pp. 14–15. On the other hand, a 'legal order' refers to 'an aggregate or a plurality of general and individual norms that govern human behaviour, that prescribe, in other words, how one ought to behave'. Hans Kelsen, 'The Concept of the Legal Order', translated by Stanley L. Paulson (from 'Der Begriff der Rechtsordnung' in Logique et Analyse, vol. 1 (1958), pp. 150–67).
21 Helnan International Hotels A/S v. Arab Republic of Egypt, ICSID Case No. ARB 05/19, 3 July 2008, paras 124–125. Same position is found in Industria Nacional de Alimentos, SA and Indalsa Perú, SA v. The Republic of Peru (Decision on Annulment, ICSID Case No. ARB/03/45, September 2007, para. 87) and in Amco Asia Corporation and others v. Republic of Indonesia (ICSID Case No. ARB/81/1, 20 November 1984, para. 177).
22 ILA Interim Report, (see footnote 2), p. 19 ('International dispute settlement organs are not considered to be bound by decisions of national courts or tribunals'); I Brownlie, Principles of Public International Law, 6th edn (Clarendon Press, Oxford, 2003), p. 50 ('There is no effect of res judicata from the decision of a municipal court so far as an international jurisdiction is concerned . . .').
23 International Law Association, Recommendations on Lis Pendens and Res Judicata and Arbitration (2006) (hereinafter 'ILA Recommendations'), see the preamble. However, the ILA did not deny a possibility of its Recommendations' indirect relevance for investment arbitration. See ILA Final Report (see footnote 14), para. 36 ('the ILA Recommendations 'may still have some indirect relevance for BIT arbitrations'). With this regard, ILA's reports and Recommendation will continue to be referenced to the extent necessary.
24 R Dolzer, C Schreuer, Principles of International Investment Law, 2nd edn (Oxford University Press, 2012), p. 267.
25 Prasad (see footnote 7), p. 7 (Res judicata 'can be applied by international courts and tribunals even in the absence of express treaty language, unless the intent to negate the application of the rule is clearly expressed').
26 B Cheng, General Principles of Law as Applied by International Courts and Tribunals (Cambridge University Press, 1953), p. 340; ILA Recommendations (see footnote 23), Article 3.4; ILA Interim Report (see footnote 2), p. 21.
27 Kinnear et al. (see footnote 3), pp. 58–59.
28 id., p. 58 ('With respect to the identity-of-parties requirement, the jurisprudence is Inconsistent regarding whether the controlling shareholders of a company and the company itself should be considered the 'same parties' for purposes of res judicata').
29 See e.g., CME Czech Republic BV v. The Czech Republic, UNCITRAL final Award (14 March 2003), para. 432; RSM Production Corp. et al v. Grenada, ICSID Case No. ARB/10/6, Award (10 December 2010), para. 7.1.5. See also H Wehland (see footnote 15), para. 6.117.
30 C Schreuer, The ICSID Convention: A Commentary (Cambridge University Press, 2001), Article 25, para. 216; ILA Interim Report (see footnote 2), p. 21.
31 Reinisch (see footnote 19), p. 59 ('If such an 'economic approach' is accepted for jurisdictional purposes it would appear that the same standard should also apply for purposes of lis pendens and res judicata. Otherwise individual companies of a corporate group (constituting a single economic entity) might avail themselves of the possibility to endlessly re-litigate the same dispute under the disguise of separate legal identities').
32 Orascom TMT Investments Sàrl v. People's Democratic Republic of Algeria, ICSID Case No. ARB/12/35, Final Award (31 May 2017), para. 485
33 id., see particularly paras 495–505, 521, 524, 539–545.
34 id., para. 542.
35 Ronald S Lauder v. The Czech Republic, UNCITRAL final award, 3 September 2001, paras 234–235.
36 CME Czech Republic BV v. The Czech Republic (see footnote 29), para. 423.
37 Ronald S Lauder v. The Czech Republic (see footnote 35); CME Czech Republic BV v. The Czech Republic (see footnote 29) paras 431–432.
38 A Reinisch, 'The Issues Raised by Parallel Proceedings and Possible Solutions' in M Waibel, A Kaushal, KH Chung, C Balchin (eds), The Backlash Against Investment Arbitration: Perceptions and Reality (Kluwer Law International 2010), pp. 121–122; see also BM Cremades and I Madalena, 'Parallel Proceedings in International Arbitration', 24 Arbitration International (2008).
39 CME Czech Republic BV v. The Czech Republic (see footnote 29), paras 430–431; G Emmanuel, Parallel Proceedings: Investment Arbitration (2019) Max Planck Institute Luxembourg for Procedural Law, para. 58.
40 ILA Recommendations (see footnote 23), Articles 3.2, 3.3; ILA Interim Report (see footnote 2), pp. 20–21; ILA Final Report (see footnote 14), paras 42–43; Dodge (see footnote 19), paras 7–10.
41 Reinisch (see footnote 19), p. 62.
42 ILA Interim Report (see footnote 2), p. 20 ('A number of commentators favour an approach that looks at the underlying nature of a dispute and not at its formal classification'); ILA Final Report (see footnote 14), para. 43 and note 109 ('Cause of action may be construed broadly as all facts and circumstances arising from a single event and relying on the same evidence which are necessary to give rise to a right to relief'); Reinisch (see footnote 19), pp. 64, 72 ('Instead of rigid identity tests, an overall assessment of the parties involved, the legal grounds invoked, the objects pursued and the underlying facts will be necessary in order to avoid a multiplication of proceedings with its inherent danger of conflicting outcomes').
43 Southern Bluefin Tuna Case (Australia and New Zealand v. Japan), Award on Jurisdiction and Admissibility, 4 August 2000, 39 ILM 1359, paras 47–54.
44 id., para. 59 (the tribunal construed Bluefin Convention to exclude the UNCLOS procedures by stating that 'Article 16 of the 1993 Convention 'exclude[s] any further procedure' within the contemplation of Article 281(1) of UNCLOS').
45 id., para. 52 ('the Tribunal concludes that the dispute between Australia and New Zealand, on the one hand, and Japan on the other, over Japan's role in the management of SBT stocks and particularly its unilateral experimental fishing programme, while centered in the 1993 Convention, also arises under the United Nations Convention on the Law of the Sea'); id., para. 54 ('the Parties to this dispute – the real terms of which have been defined above – are the same Parties grappling not with two separate disputes but with what in fact is a single dispute arising under both Conventions. To find that, in this case, there is a dispute actually arising under UNCLOS which is distinct from the dispute that arose under the CCSBT would be artificial').
46 id., para. 65 ('It follows from the foregoing analysis that this Tribunal lacks jurisdiction to entertain the merits of the dispute brought by Australia and New Zealand against Japan').
47 CME Czech Republic BV v. The Czech Republic (see footnote 29), para. 432 ('The Tribunal further is of the view that the principle of res judicata does not apply in favour of the London Arbitration for more than one reason. The parties in the London Arbitration differ from the parties in this arbitration. Mr. Lauder is the controlling shareholder of CME Media Ltd, whereas in this arbitration a Dutch holding company being part of the CME Media Ltd Group is the claimant. The two arbitrations are based on differing bilateral investment treaties, which grant comparable investment protection, which, however, is not identical. Both arbitrations deal with the Media Council's interference with the same investment in the Czech Republic. However, the Tribunal cannot judge whether the facts submitted to the two tribunals for decision are identical and it may well be that facts and circumstances presented to this Tribunal have been presented quite differently to the London Tribunal.').
49 ILA Recommendations (see footnote 23), Article 3.1; G Derbushev, Res judicata and arbitral awards, Central European University, 29 March 2019, p. 74.
50 ILA Final Report (see footnote 14), para. 31; Derbushev (see footnote 49), pp. 74–75.
51 ILA Final Report (see footnote 14), para. 33; Kinnear et al. (see footnote 3), p. 57.
52 ILA Final Report (see footnote 14), para. 19.
53 ConocoPhilips Petrozuata B.V., ConocoPhilips Hamaca B.V. and ConocoPhilips Gulf of Paria B.V. v. Bolivian Republic of Venezuela, ICSID Case No. ARB/07/30, Decision on Respondent's Request for Reconsideration, 10 March 2014.
54 Kinnear et al. (see footnote 3), p. 65.
55 ConocoPhilips v. Venezuela (see footnote 53), paras 20-21 ('As noted, the Respondent characterises the Decision as “interim” or “preliminary” and, accordingly, capable of being reconsidered, perhaps on an informal basis. The only reason suggested in its submissions is the temporal one: a further stage in the proceedings, relating to quantum, remains. The Decision does not however take an interim or preliminary form in respect of the matters on which it rules . . . Those decisions in accordance with practice are to be incorporated in the Award. It is established as a matter of principle and practice that such decisions that resolve points in dispute between the Parties have res judicata effect').
56 ConocoPhilips Petrozuata B.V., ConocoPhilips Hamaca B.V. and ConocoPhilips Gulf of Paria B.V. v. Bolivian Republic of Venezuela, ICSID Case No. ARB/07/03, Dissenting Opinion of Georges Abi-Saab, 10 March 2014, see particularly paras 56–67.
57 Kinnear et al. (see footnote 3), pp. 66–69.
58 Dodge (see footnote 19), para. 13 ('In general, decisions on preliminary objections lack res iudicata effect').
59 ILA Final Report (see footnote 14), para. 20 ('As to awards on jurisdiction99 and subject to the applicable law, the Recommendations do not exclude giving such awards conclusive and preclusive effects. An award declining jurisdiction entails a decision that there is no agreement to arbitrate or that the dispute does not fall within the ambit of the arbitration agreement, and accordingly the general jurisdiction of domestic courts may revive. Positive rulings on jurisdiction in which an arbitral tribunal accepts jurisdiction, may also constitute res judicata').
60 Waste Management, Inc. v. United Mexican States, ICSID Case No. ARB(AF)/00/3, Mexico's Preliminary Objection concerning the Previous Proceedings, 26 June 2002.
61 id., para. 43.
62 id., para. 45.
63 Kinnear et al. (see footnote 3), p. 60, note 23 ('A consensus seems to have emerged concerning the lack of res judicata effect of decisions on provisional or interim measures'); ILA Final Report (see footnote 14), para. 19 ('the Recommendations are not intended to cover any such preliminary or provisional determinations since this solution does not correspond to practice and perceptions in international commercial arbitration').
64 Millicom International Operation B.V. and Sentel GSM SA v. Republic of Senegal, ICSID Case No. ARB/08/20, Decision on the Application for Provisional Measures, 9 December 2009, para. 38. For the same position, see Victor Pey, Casado and President Allende Foundation v. Republic of Chile, ICSID Case No. ARB/98/2, Decision on Provisional Measures, 25 September 2001, para. 14.
65 Kinnear et al. (see footnote 3), p. 59.
66 Apotex Holdings Inc. and Apotex Inc. v. United States of America, ICSID Case No. ARB(AF)/12/1, Award, 25 August 2014, Part VII – Res Judicata: Jurisdiction and NAFTA Article 1139.
67 id., para. 7.30.
68 id., para. 7.35. The ILA takes the same approach. See the ILA Recommendation (footnote 23), Article 4.
69 Amco Asia Corporation and others v. Republic of Indonesia, ICSID Case No. ARB/81/8, Award in resubmitted Proceeding, 10 May 1988, paras 30–46; Dodge (see footnote 19), para. 14 ('In the light of the above determinations of annulment, and the rejection of annulment in the other claims listed above, the present Tribunal issued on 21 December 1987 a Provisional Indication as to what had been annulled and what remained as res judicata. It provisionally indicated that the Award on the Merits of 21 November 1984 was annulled in respect of the following matters . . .').
70 Derbushev (see footnote 49), p. 13 ('Res judicata may also be affected by the agreement of the parties'); ILA Final Report (see footnote 14), paras 70–71 ('the parties may waive the application of conclusive and preclusive effects of arbitral awards . . . the fact that Recommendation is based on the principle that res judicata does not pertain to public policy and can be waived by a party . . .'); G Born, C Bull, et al., 'Chapter 1: The Law Governing Res Judicata in International Commercial Arbitration', in N Kaplan and M Moser (eds), Jurisdiction, Admissibility and Choice of Law in International Arbitration: Liber Amicorum Michael Pryles (Kluwer Law International 2018), footnote 48.
71 CME Czech Republic BV v. The Czech Republic (see footnote 29), para. 431 ('the Respondent expressly and impliedly waived any lis pendens or res judicata defence').
72 ILA Interim Report (see footnote 2), pp. 7, 15, 27, footnote 80; ILA Final Report (see footnote 14), para. 71. ILS Interim Report pointed out that '[p]ublic policy may be a bar to giving res judicata effect to a prior judgment' (p. 7).