“Issue preclusion” refers to a doctrine of civil procedure that precludes repeated litigation of the same issues. It prohibits parties from, more precisely, re-litigating matters that have already been determined by a previously rendered adjudication, and can be seen through by the court’s finding and reasoning.
In Japanese law educator Shindo Koji’s words, the doctrinal statement implies the following requirements for application of issue preclusion: “Where a particular issue has been argued by the parties, heard and determined by the court in the former litigation, the court’s reasoning of the issue would have binding effects on the subsequent litigation if that issue is meanwhile considered to be a preliminary problem.”
In most of the civil law jurisdictions, this binding effect is considered different from res judicata, while both may work to achieve similar goals. Res judicata is widely accepted to be applicable to a valid arbitral award. Whether the issue preclusion doctrine can apply to an arbitral award, however, is not so clear.
Liu Nianqiong is a case manager at Beijing Arbitration Commission/Beijing International Arbitration Centre (BAC/BIAC)
