| Autor: |
RADICATI DI BROZOLO, LUCA G. |
| Předmět: |
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| Zdroj: |
American University Business Law Review; 2024, Vol. 13 Issue 1, p123-139, 17p |
| Abstrakt: |
The article explores the issue of the res judicata effect of international commercial awards in arbitration. The author argues that relying on domestic law to determine this effect is not practical and proposes a transnational approach that prioritizes the autonomy and uniformity of the arbitration process. The author discusses the drawbacks of using conflict of laws and highlights recent examples of flaws in applying national res judicata rules to international arbitration awards. They advocate for a transnational approach that considers party expectations and the specificities of arbitration. The article also addresses concerns about public policy and emphasizes the contractual basis for a transnational approach. It suggests that arbitrators should have the authority to assess res judicata based on a broad conception and adopt a functional approach that considers the expectations of commercial litigants. The criteria for determining the preclusive effects of awards are also discussed, including preclusion regarding claims, issues, and matters that could and should have been raised earlier. The article concludes by advocating for a consolidated transnational approach to res judicata in arbitration and suggests that arbitral institutions should address the effects of their awards in their rules. [Extracted from the article] |
| Databáze: |
Complementary Index |
| Externí odkaz: |
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