The Notion of Res Judicata in Investor-State Arbitration

Michael Lanser, Senior Legal Counsel, Skandia Mutual Life Insurance Company, Sweden

The notion of res judicata is a general principle of both national and international law. The general ideas of the principle are that, in the public interest, there should be and end of litigation, avoiding damage to the credibility and resources of the legal system, and, as a matter of private justice, no one should be proceeded against twice for the same cause, imposing unnecessary litigation costs and risks. In light of party autonomy, when choosing arbitration, parties deliberately confers jurisdiction on arbitrators, what act must be assumed to mean a determination to exclude in principle a review of an award and to establish a single and fully binding dispute settlement alternative to ordinary courts. The finality and binding effects of arbitral awards are prescribed in many institutional arbitration rules, which confirm its conclusive effect; and by agreeing to arbitration to such rules, the parties are presumed to accept the res judicata-effect of any valid award. The scope of res judicata differ between legal systems. International law applies a model placed between these legal systems, which approach can be argued to be apposite in investor-State arbitrations in order to balance between justice and efficiency.

Michael Lanser holds a degree of Master of Laws from Stockholm University, Sweden, and a postgraduate Master of Laws degree in Comparative Law, Economics and Finance (LL.M. CLEF) from the International University College of Turin jointly with the University of Turin, Italy. He has been practicing law professionally since 1992. At present Michael Lanser works as a senior legal counsel at Skandia Mutual Life Insurance Company in Sweden. Additionally, Michael Lanser has served as a member of the board of directors of a Swedish asset management company and of an alternative investment fund company domiciled in Luxembourg. Previous, after graduating from Stockholm University, Michael Lanser was admitted to service as law clerk of a district court in Stockholm, Sweden, and, afterwards, he pursued continued education for judicial office as a reporting clerk at Svea Court of Appeal, Stockholm. The article is based on Michael Lanser’s final thesis for the postgraduate degree LL.M. CLEF.

Skandia Mutual Life Insurance Company is a mutual insurance company incorporated and registered in Sweden, and the parent company within the Skandia group. The Skandia group is one of the largest independent providers of products for long-term savings and investments in Sweden. The Skandia group originally started out its Swedish insurance business in 1855. Skandia offer products and services that cater for various financial needs and security. Its operations are based on a combination of savings, insurance, advice and administration. The number of employees in the Skandia group are a little over 2,000 and the group has about 2 million customers.