Civil Law countries have a well-established doctrine of res judicata and the position is similar in Civil Law countries in the Middle East. It is generally accepted that the res judicata doctrine applies in the context of international arbitration, such as a final adjudication by an arbitration tribunal is conclusive in subsequent proceedings involving the same subject matter or relief, the same legal grounds and the same parties (the so-called “triple-identity” criteria). In particular, the UAE legal system specifies that, once rendered, an arbitral award becomes res judicata.
The binding effect of arbitral awards is prescribed by many international and institutional rules as well. For example, Article 28(6) of the ICC Rules provides: “Each Award shall be binding on the parties. By submitting the dispute to arbitration under these rules, the parties undertake to carry out any Award without delay …”. The LCIA Rules, Article 26.9, and the UNCITRAL Rules, Article 32(2), provide that the award shall be “final” and “binding“. Article III of the 1958 New York Convention to which the UAE are party states that: “Each 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 articles.” Such provisions confirm the positive res judicata effect of an award. It might also be said that by agreeing to arbitration pursuant to such rules, the parties accept the negative res judicata effect of any valid arbitral decision which means that the subject matter of the judgment or award cannot be re-litigated a second time.
In particular, the International Law Association Committee (ILA) has endorsed the basic application of res judicata as described above, which depends on the “triple identity test” and Recommendation 3 of Part II of the ILA Recommendations provides that “An arbitral award has conclusive and preclusive effects in further arbitral proceedings if: a. It has become final and binding in the country of origin and there is no impediment to recognition in the country of the place of subsequent arbitration in the country of the place of subsequent arbitration; b. It has decided on or disposed of a claim for relief which is sought or is being reargued in the further arbitration proceedings; c. It is based upon a cause of action which is invoked in the further arbitration proceedings or which forms the basis for the subsequent arbitration proceedings; and d. it has been rendered between the same parties.”