On 9 March 2022, SIArb held a webinar to discuss how the legal principle of res judicata is dealt with in international arbitration. The webinar was moderated by Mr Toh Chen Han, a partner with Pinsent Masons MPillay LLP while the speakers comprised Ms Margaret Joan Ling, a partner with Allen & Gledhill LLP, and Ms Yunsoo Shin, a partner with Peter & Kim (Seoul).
In his opening remark, Mr Toh warmly welcomed the delegates and introduced the speakers. He made an observation that there were delegates from different jurisdictions including Australia, Japan, Korea, Malaysia, Singapore, India, Germany, Italy, France, UK and the USA.
Mr Toh showcased the complexity of the subject matter by quoting what Lord Sumption in the UK Supreme Court case of Virgin Atlantic v Zodiac said about res judicata being “comprised of a number of legal principles with different judicial origin” and explaining that the rules around these doctrines, which are quite technical even within the context of a single common law jurisdiction, become more so when cross border elements are introduced into it.
The speakers addressed this complex issue by Ms Ling first sketching an outline of the 3 main types of res judicata under common law: (i) cause of action estoppel, (ii) issue estoppel and (iii) the rule in Henderson. Ms Ling explained the rationale and requirements of these doctrines and how they are applied in the international arbitration context. Ms Yunsoon, as the 2nd speaker, provided a recap of the common law perspective of res judicata and then, went on to explore the somewhat narrower approach to res judicata that is somewhat adopted in the civil law jurisdiction in Korea, Japan, Germany (amongst others) as well as how they are then applied to international arbitration. Ms Yunsoon also provided an update on the Korean Court’s recent ruling on res judicata.
The panel took a number of questions during the Q&A before closing the webinar with a note of thanks to all present.
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Khoo Jing Ling Gillian - Wii Pte Ltd