Nature and interpretation of the rule prohibiting parties from raising subject matters that could and should have been brought in earlier proceedings and its application in international commercial arbitration
In common law jurisdictions, there is a preclusion rule, alien to most civil law countries,
that prevents a party from raising subject matters that could and should have been brought in earlier proceedings. In certain common law jurisdictions, the rule is seen as part of the res judicata doctrine. Other common law jurisdictions classify this rule as part of the abuse of process doctrine. This rule aims at preventing multiplicity of processes, which may lead to contradictory decisions. By avoiding multiplicity of proceedings, the rule furthers the parties' interests in a definitive solution to their dispute and it also contributes to efficient and reliable justice administration. The question is therefore, whether the rule should apply in international commercial arbitration. Should the rule apply in international commercial arbitration it must be adapted to the particularities of the field. Because arbitration differs from litigation, the rule cannot be simply extrapolated from one field to the other. In order to facilitate the application of the rule in the international comercial arbitration arena, an international standard guiding the application of the rule would be beneficial.
Fuente:
Biblioteca Virtual Banco de la República
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