The Applicability of Res Judicata and Lis Pendens in World Trade Organisation Dispute Settlement

Bond Law Review
Volume 25
Article 10
Issue 2 A Tribute to Dr John Kearney QC AM
2013
The applicability of Res Judicata and Lis Pendens in

World Trade Organisation dispute settlement
Son Tan Nguyen
Monash University Victoria
Follow this and additional works at: http://epublications.bond.edu.au/blr
Recommended Citation
Nguyen, Son Tan (2013) "The applicability of Res Judicata and Lis Pendens in World Trade Organisation dispute settlement," Bond
Law Review: Vol. 25: Iss. 2, Article 10.
Available at: http://epublications.bond.edu.au/blr/vol25/iss2/10
This Article is brought to you by the Faculty of Law at ePublications@bond. It has been accepted for inclusion in Bond Law Review by an authorized
administrator of ePublications@bond. For more information, please contact Bond University's Repository Coordinator.
The applicability of Res Judicata and Lis Pendens in World Trade
Organisation dispute settlement
Abstract
This article analyses the applicability of two legal principles that originate in municipal legal systems, namely
res judicata and lis pendens, in World Trade Organisation (‘WTO’) disputes that involve a conflict of
jurisdiction between dispute settlement mechanisms of the WTO and Regional Trade Agreements (‘RTAs’).
Ideally, the applicability of non-WTO norms in WTO disputes would be determined on the basis of explicit
treaty language, as this would increase the legitimacy of the dispute settlement process. However, since there is
no particular WTO provision that explicitly specifies the sources of applicable law in WTO disputes, it is
virtually impossible to decisively verify whether WTO law allows the application of non-WTO norms like res
judicata and lis pendens in WTO disputes. Thus, whether these norms can be enforced in WTO disputes
largely depends on the discretion of WTO tribunals. On this basis, this article first develops a set of criteria
against which the applicability of res judicata and lis pendens under WTO tribunals’ inherent powers could be
assessed. The article then uses this framework to evaluate whether res judicata and lis pendens can be applied
in WTO disputes to resolve jurisdictional conflicts between WTO and RTA dispute settlement.
Keywords
jurisdictional conflicts, law, regional trade agreements
This article is available in Bond Law Review: http://epublications.bond.edu.au/blr/vol25/iss2/10

Nguyen: The applicability of Res Judicata and Lis Pendens in World Trade

THE APPLICABILITY OF RES JUDICATA AND LIS PENDENS IN
WORLD TRADE ORGANIZATION DISPUTE SETTLEMENT
SON TAN NGUYEN*
ABSTRACT
This article analyses the applicability of two legal principles that originate in
municipal legal systems, namely res judicata and lis pendens, in World Trade
Organisation (‘WTO’) disputes that involve a conflict of jurisdiction between dispute
settlement mechanisms of the WTO and Regional Trade Agreements (‘RTAs’).
Ideally, the applicability of non‐WTO norms in WTO disputes would be determined
on the basis of explicit treaty language, as this would increase the legitimacy of the
dispute settlement process. However, since there is no particular WTO provision that
explicitly specifies the sources of applicable law in WTO disputes, it is virtually
impossible to decisively verify whether WTO law allows the application of non‐WTO
norms like res judicata and lis pendens in WTO disputes. Thus, whether these norms
can be enforced in WTO disputes largely depends on the discretion of WTO tribunals.
On this basis, this article first develops a set of criteria against which the applicability
of res judicata and lis pendens under WTO tribunals’ inherent powers could be
assessed. The article then uses this framework to evaluate whether res judicata and lis
pendens can be applied in WTO disputes to resolve jurisdictional conflicts between
WTO and RTA dispute settlement.
I INTRODUCTION
In the last several decades there has been an exponential growth in the number of
RTAs.1 In addition to creating a wide overlap of substantive rights and obligations
with the WTO, 2 many RTAs are also equipped with legalised dispute settlement

* PhD Candidate, Faculty of Law, Monash University, Australia. I wish to thank Professor
Jeffrey Waincymer for his useful comments. All errors are mine.
1 As of 10 January 2013, 546 notifications of RTAs had been received by the GATT/WTO.
Of these, 354 were in force; see World Trade Organisation, Regional Trade Agreements
Gateway <http://www.wto.org/english/tratop_ e/region_e/region_e.htm>.
2 See, eg, Ignacio Garcia Bercero, ‘Dispute Settlement in European Union Free Trade
Agreements: Lessons Learned?’ in Lorand Bartels and Federico Ortino (eds), Regional
Trade Agreements and the WTO Legal System (Oxford University Press, 2006) 383, 400‐1;
World Trade Organisation, World Trade Report 2011. The WTO and Preferential Trade
Agreements: From Co‐Existence to Coherence (2011) 128‐33; Henrik Horn, Petros C.

123
Published by ePublications@bond, 2013 1

Bond Law Review, Vol. 25 [2013], Iss. 2, Art. 10
(2013) 25.2 BOND LAW REVIEW
mechanisms, 3 which operate in parallel with the compulsory, automatic and
exclusive system of dispute settlement under the WTO. 4 Various studies have
recognised that this parallel of substantive commitments and legalised dispute
settlement mechanisms may potentially result in conflicts of jurisdiction between
dispute settlement mechanisms of the WTO and RTAs, where a single dispute is
submitted in parallel or consecutively to both the WTO and RTA fora.5 For example,
suppose that countries A and B are members of both the WTO and an RTA, and that
Country A imposes an import ban on a product of country B. In theory, country B
can submit a dispute to the WTO to challenge the import ban. Since both countries
are also parties to an RTA, it is also possible for country B to file a dispute at the RTA
forum, either in parallel or consecutively to the WTO dispute. Even though this has
not materialized in reality, various cases, including Mexico ‐ Taxes on Soft Drinks,6

Mavroidis and André Sapir, ‘Beyond the WTO? An Anatomy of EU and US Preferential
Trade Agreements’ (2010) 33 (11) The World Economy 1565, 1565‐88.
3 See, eg, Amelia Porges, ‘Dispute Settlement’ in Jean‐Pierre Chauffour and Jean‐
Christophe Maur (eds), Preferential Trade Agreement Policies for Development (World Bank,
2011) 467; David Morgan, ‘Dispute Settlement under PTAs: Political or Legal?’ in Ross P.
Buckley et al (eds), Challenges to Multilateral Trade: The Impact of Bilateral, Preferential and
Regional Agreements (Wolters Kluwer, 2008) 241, 241‐4; Kyung Kwak and Gabrielle
Marceau, ‘Overlaps and Conflicts of Jurisdiction between the World Trade Organization
and Regional Trade Agreements’ in Lorand Bartels and Federico Ortino (eds), Regional
Trade Agreements and the WTO Legal System (Oxford University Press, 2006) 465, 486‐524.
4 For a discussion on these key features of WTO dispute settlement see, eg, Jeff Waincymer,
WTO Litigation: Procedural Aspects of Formal Dispute Settlement (Cameron May, 2002) 119‐
208; David Palmeter and Petros C. Mavroidis, Dispute Settlement in the World Trade
Organization: Practice and Procedure (Cambridge, 2nd ed, 2004) 17‐48.
5 See Peter Drahos, ‘Weaving Webs of Influence: The United States, Free Trade Agreements
and Dispute Resolution’ (2007) 41(1) Journal of World Trade 191, 198; Kwak and Marceau,
above n 3, 465; Yuval Shany, The Competing Jurisdictions of International Courts and
Tribunals (Oxford University Press, 2003) 8; Joost Pauwelyn, ‘Adding Sweeteners to
Softwood Lumber: The WTO‐NAFTA “Spaghetti Bowl” is Cooking’ (2006) 9(1) Journal of
International Economic Law 197, 197‐206; Joost Pauwelyn and Luiz Eduardo Salles, ‘Forum
Shopping before International Tribunals: (Real) Concerns, (Im)Possible Solutions’ (2009)
44 Cornell International Law Journal 77, 77‐85.
6 Panel Report, Mexico – Tax Measures on Soft Drinks and Other Beverages, WTO Doc
WT/DS308/R (7 October 2005) (‘Mexico – Taxes on Soft Drinks’); Appellate Body Report,
Mexico – Taxes on Soft Drinks and Other Beverages, WTO Doc WT/DS308/AB/R (6 March
2006). In this case, for many years the US had been blocking the establishment of a
NAFTA panel to examine Mexico’ claim under NAFTA concerning the market access of
its cane sugar to the US market. In response, Mexico imposed a tax on US’s soft drinks

124
http://epublications.bond.edu.au/blr/vol25/iss2/10 2
RES JUDICATA AND LIS PENDENS IN WTO DISPUTE SETTLEMENT
Argentina ‐ Poultry Anti‐Dumping Duties,7 US ‐ Cattle, Swine and Grain,8 and US ‐ Tuna
II,9i illustrate that multiple proceedings over the same dispute may occur before WTO
and RTA fora.10 In the context of WTO law, where the central constituting provision
of RTAs, namely art XXIV of the General Agreement on Tariffs and Trade (‘GATT’), 11
makes no reference to RTA mechanisms, and the Dispute Settlement Understanding
(‘DSU’) also does not regulate relations between WTO and RTA dispute settlement,12
if parties decide to submit a single dispute to more than one forum, multiple
proceedings concerning the same dispute would be unavoidable.

and other beverages; and this, in turn, led the US to initiating a dispute before the WTO
to challenge the tax measures.
7 Panel Report, Argentina – Definitive Anti‐Dumping Duties on Poultry from Brazil, WTO Doc
WT/DS241/R (22 April 2003) (‘Argentina – Poultry Anti‐Dumping Duties’). In this case,
Brazil requested the WTO panel to find Argentina’s antidumping measures inconsistent
with the WTO Anti‐Dumping Agreement. However, prior to this WTO dispute, Brazil
had already challenged the measures before a Mercosur tribunal.
8 United States – Certain Measures Affecting the Import of Cattle, Swine and Grain from Canada,
WTO Doc WT/DS144/1 (29 September 1998) (Request for Consultations from Canada)
(‘US – Cattle, Swine and Grain’). In this instance, Canada filed parallel requests for
consultations under both the NAFTA and WTO procedures involving exactly the same
US measures and similar WTO and NAFTA provisions. However, neither of these
proceeding escalated to an adjudicative phase.
9 United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna
Products, WTO Doc WT/DS381/1(28 October 2008) (Request for Consultations by Mexico)
(‘US – Tuna II’); Panel Report, United States – Measures Concerning the Importation,
Marketing and Sale of Tuna and Tuna Products, WTO Doc WT/DS381/R (15 September 2011);
Appellate Body Report, United States – Measures Concerning the Importation, Marketing and
Sale of Tuna and Tuna Products, WTO Doc WT/DS381/AB/R (16 May 2012). In this case,
Mexico initiated a WTO dispute to challenge the measures imposed by the US concerning
the importation, marketing and sale of tuna and tuna products. However, the US strongly
disagreed with Mexico’s decision to bring the dispute to the WTO because in the US’s
view, the dispute must be adjudicated at NAFTA under NAFTA Article 2005.4. The US
then filed a NAFTA dispute concerning Mexicoʹs failure to move the tuna‐dolphin
dispute from the WTO to the NAFTA forum.
10 Andrew D. Mitchell and Tania Voon, ‘PTAs and Public International Law’ in Simon
Lester and Bryan Mercurio (eds), Bilateral and Regional Trade Agreements: Commentary and
Analysis (Cambridge University Press, 2009) 114, 135‐8.
11 Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15
April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1A (‘General Agreement
on Tariffs and Trade 1994’) article XXIV.
April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 2 (‘Understanding on
Rules and Procedures Governing the Settlement of Disputes’).
125

In municipal legal systems, multiple proceedings over the same dispute are normally
regulated by, among other things, the principles of res judicata and lis pendens.13 The
principle of res judicata regulates consecutive proceedings by precluding a party from
re‐litigating a matter that it has already litigated, whereas the principle of lis pendens
governs parallel proceedings by prescribing that, during the pendency of one set of
proceeding, it is not permissible to initiate another set of competing proceedings
concerning the same dispute. This ability of res judicata and lis pendens in regulating
consecutive and parallel proceedings has led many international law scholars to
suggest that these principles may be borrowed and applied in public international
law. For example, Shany, in his comprehensive book discussing jurisdictional
conflicts in international law, argued that res judicata and lis pendens could, and
should, be applied to govern parallel and subsequent proceedings between
international courts and tribunals.14 Similarly, Lowe asserted that the application of
certain municipal legal principles such as res judicata and lis pendens to address
overlapping jurisdiction between international tribunals ‘proceeds from
requirements of good order that are applicable to each and every judicial system’.15
Recently, Lim and Gao commented that the WTO may be justified in ‘turning
towards private international law analogies’, because these norms are ‘principles of
legal reasoning based ultimately on logic, experience, and the developing practice
and jurisprudence of WTO dispute settlement’.16
In light of these scholarly suggestions, this article seeks to analyse whether res judicata
and lis pendens can satisfactorily apply in WTO disputes to regulate multiple
proceedings before the WTO and RTA fora.17 This question may arise when WTO
tribunals find these jurisdiction‐regulating norms useful and wish to apply them to

13 See, eg, James J. Fawcett (ed), Declining Jurisdiction in Private International Law: Reports to
the XIVth Congress of the International Academy of Comparative Law, Athens, August 1994
(Clarendon Press, 1995); Vaughan Lowe, ‘Overlapping Jurisdiction in International
Tribunals’ (1999) 20 Australian Year Book of International Law 191; Shany, The Competing
Jurisdictions, above n 5.
14 Shany, The Competing Jurisdictions, above n 5, 154‐73, 239‐54.
15 Lowe, ‘Overlapping Jurisdiction’, above n 13, 202.
16 C.L. Lim and Henry Gao, ‘The Politics of Competing Jurisdictional Claims in WTO and
RTA Disputes: The Role of Private International Law Analogies’ in Tomer Broude, Marce
L. Busch, and Amelia Porges (eds), The Politics of International Economic Law (Cambridge
University Press, 2011) 282, 282‐314, 313‐4.
17 This article deals specifically with the applicability of res judicata and lis pendens in WTO
disputes and does not discuss the applicability of these norms in RTA disputes. The latter
issue depends on the texts of individual RTAs; and hence a discussion on this issue
would enlarge the scope of this article into an unmanageable extent.
126
resolve WTO‐RTA jurisdictional conflicts. Moreover, in cases of multiple

proceedings, it is also possible that disputing parties may invoke these principles to
prevent a WTO tribunal from adjudicating a dispute that is being or has been
considered by an RTA tribunal. In this case, WTO tribunals might need to address
the applicability of these norms in WTO disputes. In the current author’s opinion,
regardless of how effective res judicata and lis pendens may be in municipal legal
systems, their functionality in public international law should not be assumed. As far
as WTO‐RTA jurisdictional conflicts are concerned, it is important to confirm
whether there is any basis to apply res judicata and lis pendens in WTO disputes, and
crucially, even if there is such a basis, whether these norms are in themselves capable
of being applied on that basis to resolve jurisdictional conflicts between WTO and
RTA dispute settlement.
In order to address these issues, this article is divided into five parts. Following this
introduction, the second part discusses possible bases to apply res judicata and lis
pendens in WTO disputes. The third part develops a framework against which the
applicability of res judicata and lis pendens under WTO tribunals’ inherent powers
could be assessed. The fourth part then uses this framework to evaluate whether res
judicata and lis pendens can be applied in WTO disputes as tribunals’ inherent powers
to resolve WTO‐RTA jurisdictional conflicts. The last part concludes the article.
II POSSIBLE BASES TO APPLY RES JUDICATA AND LIS PENDENS IN
WTO DISPUTE SETTLEMENT
Res judicata and lis pendens are non‐WTO norms; they are not included in any WTO‐
covered agreement listed in Appendix 1 to the DSU.18 Therefore, their applicability in
WTO disputes is linked to one of the most controversial issues in WTO law, that is,
whether and to what extent non‐WTO law can be applied in WTO disputes. The DSU
contains some provisions, such as Articles 1.1, 3.2, 7, 11, and 19.2, which outline the
law that can be applied by WTO tribunals. 19 However, unlike some other
international instruments,20 there is no particular provision that explicitly specifies
the sources of applicable law in WTO disputes. As a result, while it is undisputed
that only claims arising from WTO‐covered agreements can be brought to the WTO,

April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 2 (‘Understanding on
Rules and Procedures Governing the Settlement of Disputes’), app 1.
19 Ibid, arts 1.1, 3.2, 7, 11, 19.2.
20 See, eg, Statute of the International Court of Justice art 38(1); United Nations Convention on the
Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 6
November 1994) art 293.
127

once the jurisdiction of WTO tribunals is properly established, ‘it is less clear what
laws panels and the Appellate Body may apply’.21
Scholarly opinions on this issue also diverge. Those in favour of a restrictive
approach contend that only WTO‐covered agreements and those rules referred to
therein can be directly applicable in WTO dispute settlement.22 Those is favour of a
more liberal approach take the view that, in addition to WTO‐covered agreements, all
other sources of international law, as listed in Article 38(1) of the ICJ statute, should
be potentially applicable in WTO disputes.23 These extreme views do not seem to be
fully consistent with the practice of WTO dispute settlement. In fact, WTO tribunals
apply neither WTO‐covered agreements alone, nor all norms of international law.
Indeed, even though the recognition of international law in WTO disputes may be a

21 Isabelle Van Damme, Treaty Interpretation by the WTO Appellate Body (Oxford University
Press, 2009) 13.
22 See, eg, Joel Trachtman, ‘The Domain of WTO Dispute Resolution’ (1999) 40 Harvard
International Law Journal 333; Joel Trachtman, ‘Jurisdiction in WTO Dispute Settlement’ in
Rufus Yerxa and Bruce Wilson (eds), Key Issues in WTO Dispute Settlement: The First Ten
Years (Cambridge University Press, 2005) 132, 132‐43; Joel Trachtman, ‘The Jurisdiction of
the World Trade Organization’ (2004) 98 American Society of International Law 135, 139‐42;
Gabrielle Marceau, ‘A Call for Coherence in International Law: Praise for the Prohibition
Against “Clinical Isolation” in WTO Dispute Settlement’ (1999) 33(5) Journal of World
Trade 87; Gabrielle Marceau, ‘Conflicts of Norms and Conflicts of Jurisdictions: The
Relationship between the WTO Agreement and MEAs and other Treaties’ (2001) 35(6)
Journal of World Trade 1081; Gabrielle Marceau and Anastasio Tomazos, ‘Comments on
Joost Pauwelyn’s Paper: “How to Win a World Trade Organization Dispute Based on Non‐
World Trade Organization Law?”’ in Stefan Griller (ed), At the Crossroads: The World Trading
System and the Doha Round (Springer Wien New York, 2008) 55, 56‐81; Debra P. Steger,
‘Jurisdiction of the World Trade Organizationʹ (2004) 98 American Society of International
Law 135, 142‐6.
23 See Joost Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to
Other Rules of International Law (Cambridge University Press, 2003); Joost Pauwelyn, ‘The
Role of Public International Law in the WTO: How Far Can We Go?’ (2001) 95 American
Journal of International Law 535; Joost Pauwelyn, ‘How to Win a World Trade Organization
Dispute Based on Non‐World Trade Organization Law? Question of Jurisdiction and
Merit’ in Stefan Griller (ed), At the Crossroads: The World Trading System and the Doha
Round (Springer Wien New York, 2008) 1, 1‐53; Joost Pauwelyn, ‘Jurisdiction of the World
Trade Organization’ (2004) 98 American Society of International Law 135, 135‐9; Lorand
Bartels, ‘Applicable Law in WTO Dispute Settlement’ (2001) 35(30) Journal of World Trade
499; David Palmeter and Petros C. Mavroidis, ‘The WTO Legal System: Sources of Law’
(1998) 92(3) American Journal of International Law 398.
128
‘painful process’,24 WTO tribunals have not ‘shied away’ from using international
norms in disputes before them.25 As far as the VCLT is concerned,26 WTO tribunals
have gone beyond the rules of interpretation to apply provisions on non‐
retroactivity,27 successive treaties,28 modification,29 error,30 termination or suspension
by conclusion of a latter treaty, 31 termination as a consequence of breach, and
consequence of termination.32 In addition, WTO tribunals have also applied rules and
principles of general international law, such as rules on judicial dispute settlement
(standing, representation, la competence de la competence, burden of proof, the
treatment of municipal law, the power to accept amicus curiae briefs and to exercise
judicial economy), and state responsibility.33 This practice suggests that the restrictive
assumption that WTO‐covered agreements are the only direct source of applicable
law in WTO disputes does not seem to be tenable.

24 Tullio Treves, ‘The International Tribunal for the Law of the Sea: Applicable Law and
Interpretation’ in Giorgio Sacerdoti, Alan Yanovich and Jan Bohanes (eds), The WTO at
Ten: The Contribution of the Dispute Settlement System (Cambridge University Press, 2006)
490, 490.
25 Anja Lindroos and Michael Mehling, ‘Dispelling the Chimera of “Self‐Contained
Regimes” International Law and the WTO’ (2006) 16(5) European Journal of International
Law 857, 873.
26 For a detailed analysis, see ibid 869‐71, 876.
27 See Appellate Body Report, Canada – Terms of Patent Protection, WTO Doc
WT/DS170/AB/R (18 September 2000) (‘Canada – Patent Term’) [71]‐[74].
28 See Appellate Body Report, European Communities – Measures Affecting the Importation of
Certain Poultry Products, WTO Doc WT/DS69/AB/R (13 July 1998) (‘EC – Poultry’) [79];
Panel Report, Japan – Measures Affecting Consumer Photographic Film and Paper, WTO Doc
WT/DS44/R (31 March 1998) (‘Japan – Film’) [10.65].
29 See Panel Report, Turkey – Restrictions on Imports of Textile and Clothing Products, WTO Doc
WT/DS34/R (31 May 1999) (‘Turkey – Textiles’) [9.181].
30 See Panel Report, Korea – Measures Affecting Government Procurement, WTO Doc
WT/DS163/R (1 May 2000) (‘Korea – Government Procurement’) [7.123]‐[7.126].
31 See EC – Poultry, [79]; Appellate Body Report, European Communities – Measures Affecting
the Importation of Certain Poultry Products, WTO Doc WT/DS69/AB/R, [79].
32 See Appellate Body Report, Brazil – Export Financing Programme for Aircraft – Recourse by
Canada to Article 21.5 of the DSU, WTO Doc WT/DS46/AB/R (21 July 2000) (‘Brazil Aircraft
(Article 21.5 – Canada)’) [3.10].
33 For a discussion on the application of these rules and principles, see, eg, Pauwelyn,
Conflict of Norms, above n 23, 205‐12, 470‐1; Andrew D. Mitchell and David Heaton, ‘The
Inherent Jurisdiction of WTO Tribunals: Selected Application of Public International Law
Required by Judicial Function’ (2010) 31 Michigan Journal of International Law 559, 577‐86;
Andrew D. Mitchell, Legal Principles in WTO Disputes (Cambridge University Press,
2008).
129

However, the claim that all norms of international law are potentially applicable in
WTO disputes may also be contested. Most of the rules and principles that have been
applied by WTO tribunals belong to a set of procedural rules that any judicial system
needs to formulate to properly perform its adjudicative function.34 Substantive rules
of international law, such as environmental law and human rights law, have not
found their way easily into WTO disputes. At best, they have been taken into account
in the interpretation and application of WTO‐covered agreements, 35 such as the
landmark reference by the Appellate Body to a number of environmental agreements
in the interpretation of GATT Article XX(g) in US ‐ Shrimp.36 Beyond this, there has
been no single case in which external substantive rules have been enforced side‐by‐
side, or have overruled, substantive WTO provisions.37 This selectivity undermines
the argument that all international norms are applicable in WTO disputes.
Clearly, the interaction between WTO law and international law goes beyond the
scope of customary rules of treaty interpretation specified in Article 3.2 of the DSU.
Nevertheless, WTO tribunals have not applied all norms of international law. It
follows that ‘[i]t is not a question of whether general international law applies, but
when and how much general international law applies, and whether secondary
and/or primary rules apply’. 38 There is simply ‘no single test to determine this
[question]’.39 This means that, at this stage of development in WTO law when the
degree to which external rules can be enforced in WTO disputes has not been
decisively verified, there is no explicit treaty basis that can either confirm or eliminate
the potential application of res judicata and lis pendens in WTO disputes. The question
as to whether res judicata and lis pendens were intended by the drafters of WTO
agreements to be applied in WTO disputes cannot be conclusively answered. Thus,
the WTO must operate and interact with other rules of international law in this
conceptual and institutional uncertainty.

34 Lindroos and Mehling, above n 25, 876.
35 Ibid 876‐7.
36 Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp
Products, WTO Doc WT/DS58/AB/R (6 November 1998) (‘US – Shrimp’) [130]. For an
excellent discussion of this case, see Robert Howse, ‘The Use and Abuse of International
Law in WTO Trade/Environment Litigation’ in Merit E Janow, Victoria Donaldson, and
Alan Yanovich (eds), WTO: Governance, Dispute Settlement and Developing Countries (Juris
Publishing, 2008) 635, 643‐52.
38 Van Damme, above n 21, 21.
39 Ibid.
130
In this context, a promising alternative basis for the application of res judicata and lis
pendens in WTO disputes is the inherent power of WTO tribunals. The concept of
inherent powers originated in the practice of national courts, 40 but it has gained
relative familiarity in international law. Van Damme defines that ‘inherent powers
are powers that the judge enjoys by the mere fact of his or her status as a judge. They
are functional powers, only to be exercised when necessary for the purpose of
fulfilling the judicial function’.41 Likewise, Brown characterizes inherent powers of a
court as ones that ‘derive from its nature as a court of law’. 42 In the same vein,
Orakhelashvili states that ‘the judicial nature of international tribunals and inherent
powers following therefrom may produce a jurisdictional “supplement” not directly
foreseen under a given jurisdictional clause’.43 Significantly, international courts and
44
tribunals have also recognised the existence of inherent powers. For example, in
Legality of Use of Force, Judge Higgins stated that ‘[t]he Court’s inherent jurisdiction
derives from its judicial character and the need for powers to regulate matters
connected with the administration of justice [and] to protect the integrity of the
judicial process’.45
Since the premise that all international judicial bodies have inherent powers has been
firmly verified, it follows that WTO tribunals must also possess such powers because

40 See Chester Brown, A Common Law of International Adjudication (Oxford University Press,
2007) 56 (noting that ‘inherent powers appear to have the origin in the practice of English
courts’); Georges Abi‐Saab, ‘Whither the Judicial Function? Concluding Remarks’ in
Laurence Boisson de Chazournes, Cesare P. R. Romano, and Ruth Mackenzie (eds),
International Organizations and International Dispute Settlement: Trends and Prospects
(Transnational Publishers, 2002) 241, 246.
42 Brown, above n 40, 56.
43 Alexander Orakhelashvili, ‘Questions of International Judicial Jurisdiction in the
LaGrand Case’ (2002) 15 Leiden Journal of International Law 105, 115.
44 In Nuclear Tests (Australia v France) (Judgment) [1974] ICJ Rep 253, 259‐60 [23], referring to
Northern Cameroons (Cameroon v United Kingdom) (Preliminary Objections) [1963] ICJ Rep
15, 29, the ICJ decisively confirmed that the Court possesses an inherent jurisdiction
enabling it to take such action as may be required … to provide for the orderly settlement
of all matters in dispute, to ensure the observance of the ‘inherent limitations on the
exercise of the judicial function’ of the Court, and to ‘maintain its judicial character’. …
Such inherent jurisdiction … derives from the mere existence of the Court as a judicial
organ established by the consent of States, and is conferred upon it in order that its basic
judicial functions may be safeguarded.
45 Legality of Use of Force (Serbia and Montenegro v Belgium) (Preliminary Objections) [2004] ICJ
Rep 279, 338‐9 [10], [12] (Judge Higgins).
131

as they can be reasonably classified as judicial bodies. Undeniably, WTO tribunals
still bear some characteristics that are not typical of an international court. For
example, the process begins with several political steps such as consultations, good
offices, conciliation and mediation; panels are established on an ad‐hoc basis; and
rulings are in the form of recommendations that require political approval by the
Dispute Settlement Body (DSB) to take effect rather than opinions or judgements.46
Nevertheless, these features do not appear to affect the judicial status of WTO
tribunals. According to Mitchell and Heaton:
[i]n determining claims, WTO Tribunals act independently, much like international
courts. They fix the boundaries of the dispute before them, marshal the evidence,
determine appropriate law, apply law to the facts, and reach a decision. Thus, WTO
Tribunals are judicial tribunals that follow a judicial process.47
Moreover, under Articles 6.1, 16.4 and 17.14 of the DSU, many steps of the dispute
settlement process, such as the establishment of a panel and the adoption of WTO
tribunals’ reports, are essentially automatic, through the negative consensus process.
WTO tribunals’ reports are also binding because remedies are available in the event
of non‐compliance.48 WTO tribunals are thus judicial,49 or ‘a court in all but name’.50
As a result, it may be concluded that, like other international judicial bodies, WTO
tribunals also have inherent powers.51 The ruling of the Appellate Body in Mexico ‐
Taxes on Soft Drinks forcefully confirmed that ‘WTO panels have certain powers that
are inherent in their adjudicative function’.52
If it is accepted that WTO tribunals possess inherent powers, it follows that, where an
application of non‐WTO norms may be essential for the proper administration of
adjudicative function, WTO tribunals might use these inherent powers as a basis to

46 Mitchell and Heaton, above n 33, 567.
47 Ibid 565‐6.
48 See, eg, Marrakesh Agreement Establishing the World Trade Organization, opened for
signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 2
(‘Understanding on Rules and Procedures Governing the Settlement of Disputes’), arts 21, 22.
49 Donald McRae, ‘What is the Future of WTO Dispute Settlement?’ (2004) 7(1) Journal of
International Economic Law 3, 8.
50 J.H.H. Weiler, ‘The Rule of Lawyers and Ethos of Diplomats‐Reflections on the Internal
and External Legitimacy of WTO Dispute Settlement’ (2001) 35 Journal of World Trade 191,
201.
51 Mitchell and Heaton, above n 33, 566‐71; Van Damme, above n 21, 166; Brown, above n
40, 71.
52 Appellate Body Report, Mexico – Taxes on Soft Drinks and Other Beverages, WTO Doc
WT/DS308/AB/R, [45].
132
apply these norms in WTO disputes.53 Ideally, the application of non‐WTO norms
should be done on the basis of explicit treaty language, as this would increase the
legitimacy of the dispute settlement process. However, since there is currently, as
discussed above, no explicit treaty language in this regard, it is natural and inevitable
that WTO tribunals must use their inherent powers to decide on a case‐by‐case basis
which external rules they can or cannot apply. It follows that Lindroos and Mehling
are correct in observing that, ‘whether international law may serve as an equal source
of law in trade disputes is, in the end, a question which can only be answered
conclusively by those shaping the actual … rulings of the world trade regimes’.54
Obviously, in the absence of explicit treaty language specifying the scope of
applicable law in WTO disputes, inherent powers might be a practical alternative
basis on which non‐WTO norms, including res judicata and lis pendens, can be applied
in WTO disputes. The advantage of this approach is that by filtering the rules that
can and cannot be applied, WTO tribunals can strike the right balance between an
unconditional incorporation of non‐WTO rules and a total shield against these
sources.55 In this way, WTO tribunals might be able to avoid importing norms that
are not suitable to the WTO dispute settlement system, and at the same time ensure
that the WTO will not operate as a self‐contained regime in which external norms are
entirely excluded.56
However, the possession of inherent powers does not mean that WTO tribunals can
bring into WTO disputes any rule that they wish to apply. Inherent powers are, by
their very nature, limited powers, because they stem directly from the judicial
function, rather than any explicit treaty language, where state consent is written
down. Therefore, the norms intended to be applied under WTO tribunals’ inherent
powers must also possess certain qualities so that they can fit squarely within the
limit of tribunals’ inherent powers. The next section will discuss in detail essential
features that a non‐WTO norm might need to have in order to be applied in WTO
disputes as an element of tribunals’ inherent powers.

53 Mitchell and Heaton, above n 33, 97‐103.
55 Panagiotis Delimatsis, ‘The Fragmentation of International Trade Law’ (Discussion Paper
No 2010‐010, Tilburg Law and Economics Center, 2010) 14‐5.
56 The ILC Study Group forcefully warns against this potential isolation between WTO law
and international law. See International Law Commission, Report of the Study Group on the
Fragmentation of International Law, Finalized by Martti Koskenniemi, 58th sess, UN Doc
A/CN.4/L.682 (13 April 2006) [44] – [45]. Similarly, the Appellate Body stated clearly in its
first case that the WTO agreements are ‘not to be read in clinical isolation from public
international law’, see Appellate Body Report, United States – Standards of Reformulated and
Conventional Gasoline, WTO Doc WT/DS2/AB/R (20 May 1996) (‘US – Gasoline’) 16.
133

III TOWARDS A FRAMEWORK
This section seeks to determine factors that might be relevant in evaluating the
applicability of res judicata and lis pendens in WTO dispute settlement as WTO
tribunals’ inherent powers. Since these long‐standing principles of municipal law are
non‐WTO norms, the applicability of these principles in WTO disputes will depend
on various factors, particularly their legal status, determinacy, ability to operate in
WTO disputes, and consistency with WTO law. The following sections will explain in
detail the meaning and the relevance of these factors.
A The Legal Status
The first criterion that might assist in assessing the applicability of res judicata and lis
pendens in WTO disputes under the tribunals’ inherent powers is their legal status.
Res judicata and lis pendens are non‐WTO norms; they are not included in any WTO‐
57
covered agreement. Therefore, from the perspective of inherent powers, the
minimum requirement for them to be considered in WTO disputes is that they
qualify as general principles of law within the meaning of Article 38(1)(c) of the ICJ
Statute, which has been traditionally considered as providing a ‘universal, or at least
dominant perception as to the sources of international law’.58 In fact, even scholars
who consider that the applicable law in WTO disputes is not limited to WTO‐covered
agreements do not advocate for an application of sources other than those provided
in Article 38(1)(c).59 Mitchell has pointed out that a principle can only be used on the
basis that if falls within the WTO tribunals’ inherent powers if, among other
conditions, it is recognized as a general principle of law. 60 This is because, in
Mitchell’s view, ‘[i]nherent jurisdiction does not provide a vehicle for applying any

57 It is worth reemphasizing that this section and the following sections look at the
applicability of res judicata and lis pendens from the perspective of WTO tribunals’
inherent powers, rather than explicit treaty language. The preceding section notes that it
is uncertain whether and to what extent various provisions of the DSU such as Articles
1.1, 3.2, 7, 11, and 19.2 would allow the application of non‐WTO norms in WTO disputes.
In addition, the practice of WTO dispute settlement is also inconclusive in this regard.
58 This is because, while Article 38(1) refers explicitly to the ICJ, it lists the sources of law
that the Court whose function is to decide disputes ‘in accordance with international law’
has to apply. See Waincymer, above n 4, 374.
59 See Pauwelyn, Conflict of Norms, above n 23; Pauwelyn, ‘The Role of Public International
Law’, above n 23; Pauwelyn, ‘How to Win a WTO Dispute Based on Non‐WTO Law’,
above n 23, 1‐53; Pauwelyn, ‘Jurisdiction of the World Trade Organizationʹ, above n 23,
135‐9; Bartel, above n 23; Palmeter and Mavroidis, ‘The WTO Legal System’, above n 23.
134
rule an international tribunal wishes to apply’.61 The merit in Mitchell’s approach is
that it helps draw the boundary of WTO tribunals’ inherent powers, which are not
explicitly written down in the constitutive instrument. While Damme appears correct
in observing that ‘the essence of the judicial function lies in its limitations’,62 Mitchell
has moved a step further in articulating what may constitute such a limitation.
The limitation that international tribunals can only use their inherent powers to
apply rules that have qualified as general principles of law seems to originate in the
requirements of legitimacy. Specifically, if legitimacy could be roughly understood as
implicating ‘an actor’s normative belief that a rule or institution ought to be
obeyed’,63 then setting out the requirement that a rule must achieve the status of
general principles of law to be applied as WTO tribunals’ inherent power appears to
be an optimal choice. This is because if a rule is accepted as a general principle of law,
it would gain more ‘compliance pull’, in the sense that an actor would feel more
compelled to obey the rule.64 To put it simply, as observed by Franck, ‘few persons or
states wish to be perceived as acting in flagrant violation of a generally recognized
rule of conduct’.65 It may be reasoned by analogy that, in the context of WTO and
RTA dispute settlement, were a WTO tribunal to apply a jurisdiction regulating norm
to resolve a jurisdictional conflict, the persuasiveness of that application would
depend, among other things, on whether the norm has been widely accepted as a
general principle of law within the meaning of Article 38(1)(c).
Therefore, it would be appropriate to clarify that, among other conditions specified
later, res judicata and lis pendens must be qualified as a general principle of law within
the meaning of Article 38(1)(c) in order to be applied as WTO tribunals’ inherent
powers. Even though there may still be difficulties in verifying when a norm can
meet this requirement,66 it is arguable that the more accepted a norm is as a general

61 Ibid.
63 Ian Hurd, After Anarchy: Legitimacy and Power in the United Nations Security Council
(Princeton University Press, 2007) 7.
64 See Thomas M. Franck, The Power of Legitimacy among Nations (Oxford University Press,
1990) 24‐6 (describing the ‘compliance pull’).
65 Ibid 54.
66 See Christopher A. Ford, ‘Judicial Discretion in International Jurisprudence: Article
38(1)(c) and “General Principles of Law”’ (1994) 5 Duke Journal of Comparative and
International Law 35, 66‐75; Fabián Raimondo, General Principles of Law in the Decisions of
International Criminal Courts and Tribunals (Martinus Nijhoff, 2008).
135

principle of law, the greater the legitimacy that norm will have when applied as an
exercise of inherent power by the WTO.67.
B Determinacy
The requirement of determinacy is suggested by Franck’s analysis on the legitimacy
of international law. To Franck, determinacy reflects the ability of a rule to ‘convey a
clear message’, and is one of the key indicators of a rule’s legitimacy.68 A rule that has
a ‘readily accessible meaning’, and spells out clearly what it expects the addressees to
comply with, is ‘more likely to have real impact on conduct’. 69 Conversely, an
ambiguous rule would make ‘it harder to know what conformity is expected’, and
thus potentially provide some justification for non‐compliance.70 In a nutshell, ‘[t]he
greater its determinacy, the more legitimacy the rule exhibits and the more it pulls
towards compliance’.71 Determinacy appears to be an internal feature of a rule and
‘central to its powers to promote commitment’. 72 Thus, the ability of a norm in
fulfilling its intended function may depend largely on whether the meaning, scope,
and applicable conditions of that norm are determinable.
Determinacy appears to be a relevant factor in evaluating the applicability of res
judicata and lis pendens in WTO disputes. If a norm is undetermined and
controversial, its application in WTO disputes would, in terms of principle, face more
obstacles. At the simplest level, it would be challenging for adjudicators to determine
the exact content, scope and applicable requirements of a norm to apply it in WTO
disputes. More importantly, indeterminacy would ‘give rise to different and even
contradictory interpretations and the possibility of arbitrariness’.73 Although WTO

67 Even though res judicata and lis pendens were originally developed in municipal legal
systems, in determining the legal status and content of these norms in international law,
this article makes reference to not only national law, but also decisions of international
courts and arbitral tribunals. This is because decisions of international courts and arbitral
tribunals may indicate the recognition and reception of these norms in international law,
and hence can be evidence as to whether these norms have, or have not, achieved the
status of general principles of law.
68 Thomas M. Franck, Fairness in International Law and Institutions (Clarendon Press‐Oxford,
1995) 30.
69 Ibid 31.
70 Ibid.
71 Franck, Fairness in International Law and Institutions, above n 68, 32‐3.
72 Jutta Brunnée and Stephen J. Toope, Legitimacy and Legality in International Law: An
Interactional Account (Cambridge University Press, 2010) 53.
73 Dencho Georgiev, ‘Politics or Rule of Law: Deconstruction and Legitimacy in
International Law’ (1993) 4 European Journal of International Law 1, 9.
136
tribunals’ inherent powers might be a legitimate basis upon which to apply certain
general principles of law in WTO disputes, it would be a step too far for these powers
to accommodate norms that may be in themselves a major source of contradiction
and arbitrariness. Obviously, the determinacy of a jurisdiction‐regulating norm may
decisively affect its applicability in WTO disputes. Even though determinacy might
be a matter of degree, as ‘all rules of law are by definition to some extent general’,74
and that certain level of indeterminacy may also be useful to provide flexibility to
law,75 it could still be arguable that the more determinate the rule is, the easier it
could be applied, and the greater its contribution to the formulation of legitimate
expectations as to what rule would be applied.
To different extents, determinacy seems to be an issue with both res judicata and lis
pendens. Even if WTO tribunals decide to apply these principles, important questions
as to their exact content, scope and application requirements may still remain. These
issues will be explored in Part IV of this article.
C The Ability to Operate in WTO Dispute Settlement
Uncertainty as to the applicability of res judicata and lis pendens in WTO disputes
arises as a result of differences between the municipal legal systems in which these
norms developed, on the one hand, and the system of public international law, on the
other. It is widely accepted that the international legal system does not possess as
high a level of systemic coherence as most municipal legal systems do. Municipal
legal systems ordinarily possess a complete set of secondary rules of change and
adjudication, and a unifying rule of recognition specifying sources of law and
providing general criteria for the identification of its rules.76 In contrast, international
law is essentially a non‐hierarchical legal system in which, with the exception jus
cogens, ‘the principle of the sovereign equality of states excludes all forms of
hierarchical differentiation of norms’.77 Few would deny the presence of secondary
rules of international law, especially when one looks at the rules that govern the

74 Ibid.
75 Franck, The Power of Legitimacy, above n 64, 53.
76 See Herbert Lionel Adolphus Hart, The Concept of Law (Oxford: Clarendon Press, 1961)
209‐10; see also Franck, The Power of Legitimacy, above n 64, 183‐94.
77 Combacau, ‘Le droit international: bric‐à‐brac ou systeme?’ (1986) 31 Archives de
philosophies du droit 85, 88; see also Ignaz Seidl‐Hohenveldern, ‘Hierarchy of Treaties’ in
Jan Klabbers and R. Lefeber (eds), Essays on the Law of Treaties: A Collection of Essays in
Honour of Bert Vierdag (Martinus Nijhoff Publishers, 1998) 7, 7‐9; International Law
Commission, Report of the Study Group on the Fragmentation of International Law, Finalized
by Martti Koskenniemi, 58th sess, UN Doc A/CN.4/L.682, [324]‐[409].
137

conditions for validity and enforcement of primary rules, or the detailed list of
sources of international law found in Article 38 of the ICJ Statute. Nevertheless, it is
hard to establish that these secondary rules, especially rules of recognition, are
complete, or have been sufficiently developed to convert international law into a
unified legal system.78 Therefore, international law is generally viewed as a loosely
structured system with a basic level of systemic unity.79 Thus, it is unclear whether
jurisdiction‐regulating norms, such as res judicata and lis pendens, which normally
have detailed and technical applicable requirements, can operate in the loosely
connected system of international law.
Moreover, the jurisdiction of international courts and tribunals is ‘by no means
plenary’.80 Specifically, in the municipal context, ‘somewhere within any legal system
there will be one court or another’ before which a claim can be brought.81 Thus, the
risk of denying justice as a result of declining jurisdiction may be significantly
minimised. In contrast, this may not be the case in international law. Even though it
may be possible in some situations for an international tribunal to redirect a case to
another forum without taking away the applicant’s ‘central cause of action’, in some
other cases, redirection may be entirely impossible because of the risk of depriving
the parties of their right to have a full and fair day in court. 82 These sorts of
differences raise the question whether jurisdiction‐regulating norms developed in
municipal legal systems can operate in the context of WTO dispute settlement.

78 Bruno Simma and Dirk Pulkowski, ‘Of Planets and the Universe: Self‐Contained Regimes
in International Law’ (2006) 17(3) European Journal of International Law 483, 496.
79 Ibid 499 (considering international law as ‘a minimal system, resembling in many
respects a bric‐à‐brac rather than an organized whole’); Martti Koskenniemi, ‘The Fate of
Public International Law: Between Technique and Politics’ (2007) 70(1) Modern Law
Review 1, 16 (noting that ‘here is a battle European jurisprudence seems to have won. …
or in the words of the first conclusion made by the ILC Study Group, “International law
is a legal system”’); Zemanek, ‘Cours général de droit International Public’ (1997) 266
Recueil Des Cours 9, 61‐5 (‘international law forms one legal order’, but its universality is
quite limited); Gerhard Hafner, ‘Pros and Cons Ensuring from Fragmentation of
International Law’ (2004) 25 Michigan Journal of International Law 849, 850 (regarding
international law as an ‘unorganized system’); Pauwelyn, Fragmentation of International
Law, above n 377 (suggesting that international law forms ‘an operating system’);
International Law Commission, Conclusions of the Work of the Study Group, 58th sess, UN
Doc A/CN.4/L.702 (18 July 2006) Conclusion No 1.
80 Lowe, ‘Overlapping Jurisdiction’, above n 13, 198‐9.
81 Ibid 199.
82 Ibid.
138
There may be many factors reflecting the operationality of jurisdiction regulating
norms in WTO disputes. In the case of res judicata and lis pendens, their operationality
may be determined by examining whether the conditions for their application,
particularly, the identities of parties, object, and grounds can be met, where there is a
conflict of jurisdiction between WTO and RTA. These issues will be examined in
more detail in Part IV of this article.
D The Consistency with WTO Law
This criterion is comprehensively developed by Mitchell, who suggests that an
essential condition for a non‐WTO norm to be applied, as an exercise of WTO
tribunals’ inherent powers, is its consistency with WTO law, especially, the DSU and
Marrakesh Agreement.83
The justification for this requirement lies in the fact that, even though possessing
inherent powers that in this case may provide a legal basis to incorporate
jurisdiction‐regulating norms into WTO disputes, these powers, at the very least,
must be weighed and balanced against requirements in the constitutive instrument.
The basic nature of international dispute settlement is state consent;84 as a result, an
international court or tribunal cannot exercise its powers in a manner that is
incompatible with what states have expressly agreed and included in the constitutive
instrument. In other words, ‘international courts cannot simply assert the existence of
inherent powers as a type of carte blanche to do whatever they want’,85 but they could
exercise an inherent power if there is no ‘contradictory language in the constitutive
document’. 86 In this regard, Alvarez succinctly remarks that ‘adjudicative law‐
making may be barred or limited in some respect by sources of law that are available
or authorised to the dispute settlers’. 87 Similarly, Judge Jennings emphasises that

83 Mitchell and Heaton, above n 33, 563, 575. Specifically, these authors suggest that
‘[i]nherent jurisdiction permits WTO Tribunals to apply only international law rules that
satisfy three conditions. First, the application of the international law rule must be
necessary for the WTO Tribunal to properly exercise its adjudicatory function. Second,
the rule in question must have no substantive content of its own. Third, its application
must not be inconsistent with the Covered Agreements’. Ibid 563.
84 Gérardine Meishan Goh, Dispute Settlement in International Space Law: A Multi‐door
Courthouse for Outer Space (Martinus Nijhoff Publishers, 2007) 88; see also J. G. Merrills,
International Dispute Settlement (Cambridge University Press, 4th ed, 2005).
85 Brown, above n 40, 78 (emphasis added).
87 Jose E. Alvarez, International Organizations as Law‐makers (Oxford University Press, 2005)
561.
139

‘[e]ven where a court creates law in the sense of developing, adapting, modifying,
filling gaps, interpreting, or even branching out in a new direction, the decision must
be seen to emanate reasonably and logically from existing and previously ascertainable
law. A court has no purely legislative competence’. 88 In the words of the WTO
Appellate Body, ‘[n]othing in the DSU gives a panel the authority either to disregard
or to modify ... explicit provisions of the DSU’.89 Therefore, if WTO tribunals use
inherent powers to apply non‐WTO norms that are inconsistent with WTO law, they
would add to or diminish the rights and obligations of WTO Members. This is plainly
contrary to the requirements set out in articles 3.2 and 19.2 of the DSU, and was
forcefully warned against by the Appellate Body in India – Patent (US).90
It now seems well established that inherent powers could not be exercised in a
manner that is inconsistent with the explicit provisions of the constitutive instrument.
This means that, if res judicata and lis pendens can be proven inconsistent with WTO
law, they cannot be applied as an exercise of WTO tribunals’ inherent powers to
resolve conflicts of jurisdiction between WTO and RTA dispute settlement. This is
because, as mentioned above, the enforcement of non‐WTO norms that are
inconsistent with WTO law in WTO disputes would amount to adding to or
diminishing the rights and obligations of WTO Members. In a nutshell, [t]he
provisions of Covered Agreements and their objects and purposes may ... have the
effect of rendering inapplicable in the WTO a principle that has been applied
elsewhere’.91
IV APPLICABILITY OF RES JUDICATA AND LIS PENDENS AS AN
EXERCISE OF WTO TRIBUNALS’ INHERENT POWERS
A Res Judicata
Res judicata is a long‐standing legal principle ‘deriv[ing] from the Roman Law ideals
of legal security and finality of decisions which was widely followed in common law
and civil law countries and is sometimes considered as inherent to any legal

88 Sir Robert Jennings, ‘The Judicial Function and the Rule of Law’ (1987) III International
Law at the Time of its Codification, Essays in Honour of Roberto Ago 139, 145 (emphasis
added).
89 Appellate Body Report, India – Patent Protection for Pharmaceutical and Agricultural
Chemical Products, WTO Doc WT/DS50/AB/R (5 September 1997) (‘India – Patents (US)’)
[92].
90 Ibid [45]‐[46]. The Appellate Body warns that panels and the Appellate Body ‘must not
add to or diminish rights and obligations provided in the WTO Agreement’.
140
system’. 92 The basic meaning of res judicata has been described in a relatively
consistent manner by commentators. Bin Cheng, an authoritative writer on res
judicata, has suggested that ‘[r]ecognition of an award as res judicata means nothing
else more than recognition of the fact that the terms of that award are definitive and
obligatory’.93 Similarly, Barnett considers that
[a] res judicata is a judicial decision of special character because, being
pronounced by a court or tribunal having jurisdiction over the subject‐matter
and the parties, it disposes finally and conclusively of the matters in
controversy, such that ‐ other than on appeal ‐ that subject‐matter cannot be re‐
litigated between the same parties or their privities. Instead, the subject‐matter
becomes ‐ as the Latin reveals ‐ ‘a thing adjudicated’, with res judicata
thereafter standing as the final and conclusive resolution of the parties’
dispute.94
The recent ILA Interim Report on Res Judicata and Arbitration states that
[t]he term of res judicata refers to the general doctrine that an earlier and final
adjudication by a court or arbitration is conclusive in subsequent proceedings
involving the same subject‐matter or relief, the same legal grounds, and the
same parties ....95
Evidently, the essence of res judicata is that ‘a party should not be allowed to re‐
litigate a matter that it has already litigated’.96

92 August Reinisch, ‘The Use and Limits of Res Judicata and Lis Pendens as Procedural Tools
to Avoid Conflicting Dispute Settlement Outcomes’ (2004) 3(37) The Law and Practice of
International Courts and Tribunals 37, 43; see also, Peter R. Barnett, Res Judicata, Estoppel and
Foreign Judgments: The Preclusive Effects of Foreign Judgments in Private International Law
(Oxford University Press, 2001) 8‐9.
93 Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals
(Stevens & Sons Limited, London, 1953) 336‐7, quoting Société Commerciale De Belgique
(Belgium v Greece) [1939] PCIJ (ser A/B) No 78, 175.
94 Barnett, above n 92, 8. This section only introduces the definition of res judicata generally.
The discussion as to whether the applicable conditions of res judicata could be
established in the context of the WTO and RTAs will be discussed in detail in section
IV.A.3 below.
95 International Commercial Arbitration Committee of the International Law Association
(ILA), Interim Report: Res Judicata and Arbitration (Berlin Conference, 2004) (‘ILA
Interim Report: Res Judicata’) 36 <http://www.ila‐hq.org/download.cfm/docid/446043C4‐
9770‐434D‐AD7DD42F7E8E81C6>.
96 Yuval Sinai, ‘Reconsidering Res Judicata: A Comparative Perspective’ (2011) 21 Duke
Journal of Comparative and International Law 253, 253. Admittedly, parallel and
consecutive proceedings between the WTO and RTA fora might also be handled by a
treaty clause regulating parties’ choice of forum. However, while the WTO does not

141

The applicable conditions of res judicata consist of two elements, that is, identity of
parties and identity of issues.97 The latter is often further broken down into identity
of ‘object’ (petitum) and identity of ‘grounds’ (causa petendi). 98 Identity of object
stipulates that ‘the same type of relief is sought in different proceedings’, whereas
identity of grounds indicates that ‘the same rights and legal arguments are relied
upon in different proceedings’.99 The most controversial issue, as seen below, is not
whether these conditions are relevant,100 but how strictly or broadly they should be
construed.
B The Legal Status of Res Judicata
Res judicata is inherent in all municipal legal systems,101 in the sense that ‘every legal
system has produced a body of res judicata law’.102 In international law, res judicata is
widely considered a general principle of law. 103 Bin Cheng observes that ‘[t]here
seems little, if indeed any question as to res judicata being a general principle of law
or as to its applicability in international judicial proceedings’.104 International courts
and tribunals, such as the PCIJ105 and its successor ‐ the ICJ,106 the European Court of

contain any such clause, it has been widely accepted that jurisdiction clauses included in
various RTAs may not be enforceable in WTO disputes. See also, Pauwelyn, ‘How to Win
a World Trade Organization Dispute’, above n 23 (arguing for application of RTA
jurisdiction clauses in WTO disputes); Kwak and Marceau, above n 3, 470‐1 (doubting
whether exclusive choice of forum clauses ‘would be sufficient to allow a WTO panel to
refuse to hear the matter’ where the process under these RTAs has been initiated).
97 Cheng, above n 93, 339‐47; Vaughan Lowe, ‘Res Judicata and the Rule of Law in
International Arbitration’ (1996) 8 African Journal of International and Comparative Law
38, 40‐1; Shany, The Competing Jurisdictions, above n 5, 23‐8; Reinisch, above n 92, 61‐73.
98 Cheng, above n 93, 339‐47; Vaughan Lowe, ‘Res Judicata and the Rule of Law in
International Arbitration’ (1996) 8 African Journal of International and Comparative Law
38, 40‐1; Shany, The Competing Jurisdictions, above n 5, 23‐8; Reinisch, above n 92, 61‐73.
99 Reinisch, above n 92, 63.
100 In addition to the identity of ‘object’ and ‘grounds’, Shany and Reinisch suggest that the
‘same fact pattern’, or ‘identical facts’ may also be an important condition. See Shany, The
Competing Jurisdictions, above n 5, 23‐8; Reinisch, above n 92, 70‐2.
101 Barnett, above n 92, 8.
102 Robert C. Casad and Kevin M. Clermont, Res Judicata: A Handbook on its Theory, Doctrine,
and Practice (Carolina Academic Press, 2001) 5.
103 This observation is made by Reinisch; see Reinisch, above n 92, 44.
104 Cheng, above n 93, 153, 336.
105 See, eg, Societe Commerciale De Belgique (Belgium v Greece) (Judgment) [1939] PCIJ (ser A/B)
No 78, 175; Polish Postal Service in Danzig (Advisory Opinion) [1925] PCIJ (ser B) No 11, 30;
Interpretation of Judgements Nos. 7 and 8 concerning the case of the Factory at Chorzow

142
Justice (ECJ), 107 and arbitral tribunals, 108 have also confirmed that res judicata is a
legally binding principle. In Chorzow Factory, for example, Judge Anzilotti referred to
res judicata as one of the ‘general principles of law recognised by civilised nations’.109
Similarly, in Waste Management v Mexico (No 2), the tribunal held that ‘[t]here is no
doubt that res judicata is a principle of international law, and even a general principle
of law within the meaning of Article 38(1)(c) of the Statute’. 110 Reinisch appears
correct, therefore, in stating that ‘[d]oubts about the existence of res judicata as a rule
of international law seem to be unfounded’.111
The qualification of res judicata as a general principle of law has important
implications for its potential application in WTO disputes. In light of the framework
set out in section III, the broad acceptance of res judicata as a general principle of law
would add a significant amount of legitimacy and persuasiveness to the application
of this principle in WTO disputes. The legitimacy and persuasiveness of the exercise
of WTO tribunals’ inherent powers is supported by the legal status of res judicata as a
general principle of law. This may explain why Mitchell perceives the application of
general principles of law in WTO disputes on the basis of inherent powers as a

(Germany v Poland) 1927 PCIJ (ser A) No 11, 21; Factory at Chorzow (Germany v Poland)
(Merits) [1928] PCIJ (ser A) No 17, 75 (Judge Ehrlich).
106 See, eg, Effect of Awards of Compensation Made by the United Nations Administrative Tribunal
(Advisory Opinion) [1954] 47 ICJ Rep 47, 53; Arbitral Award Made by the King of Spain on 23
December 1906 (Honduras v Nicaragua) (Judgment) [1960] ICJ Rep 192; South West Africa Case
(Ethiopia v South Africa) (Second Phase, Judgment) [1966] ICJ Rep 4, 240; Requests for
Interpretation of the Judgement of 11 June 1998 in the Case Concerning the Land and Maritime
Boundary between Cameroon and Nigeria (Cameroon v Nigeria) (Judgment) [1999] ICJ Rep 31,
39.
107 See, eg, Mrs Emilia Gualco v High Authority of the European Coal and Steel Community
(C‐14/64) [1965] ECR 51; Hoogovens Groep v Commission (C‐172, 226/83) [1985] ECR
2831; France v Parliament (C‐358/85, 51/86) [1988] ECR 4846, 4849‐4850.
108 See, eg, Trail Smelter (Award) (1950) 3 RIAA 1905, 1950; The Orinoco Steamship
Company Case (US v Venezuela) (Award) (1910) 11 RIAA 227, 239; Company General of
the Orinoco Case (France v Venezuela) (Award) (1905) 10 RIAA 184, 276; Pinus Fund (US
v Mexico) (1902) 9 RIAA 11, 12; Waste Management (Inc. v United Mexican States (No 2))
(Decision on Preliminary Objection) (ICSID Arbitral Tribunal, 26 June 2002, ICSID Case
No ARB (AF)/00/3) [38].
109 Interpretation of Judgements Nos. 7 and 8 concerning the case of the Factory at Chorzow
(Germany v Poland) (Judgment) [1927] PCIJ (ser A) No 11, 27 (Judge Anzilotti).
110 Waste Management (Inc. v United Mexican States (No 2)) (Decision on Preliminary
Objection) (ICSID Arbitral Tribunal, 26 June 2002, ICSID Case No ARB (AF)/00/3) [38].
143

‘principled’ way to exercise WTO tribunals’ inherent powers.112 Here, the discretion
of WTO tribunals is substantially channelled by general principles of law. This is
clearly a two‐way interaction, where general principles of law need a legal basis to be
applied in WTO disputes,113 and inherent powers need to be ‘wrapped’ by general
principles of law to bridge their gap of legitimacy and persuasiveness.
The wide acceptance of res judicata as a general principle of law means that it would
have little difficulty in meeting the requirement of legal status set out above.
However, as discussed below, this does not mean that res judicata can easily satisfy
other conditions to be applied in WTO disputes under WTO tribunals’ inherent
powers.
C The Determinacy of Res Judicata
Although res judicata may be considered a general principle of law, important issues,
such as its scope, content, and applicable conditions, remain ‘far from consistent and
settled’.114 Common law systems tend to favour a broad‐scope res judicata, whereas
continental civil law systems normally follow a more formalistic approach. 115
Notably, variations may even exist between legal systems that belong to the same
legal family such as between the English and US Common Law.116
In English common law, the principle of res judicata has two main forms, namely,
cause of action estoppel, and issue estoppel.117 Similarly, in the US legal system, res
judicata also consists of claim preclusion (similar to cause of action estoppel) and
issue preclusion (similar to issue estoppel).118 However, there are some important
differences between the two systems. In English Common Law, the estoppel applies

113 This is because there is, as explained previously, no explicit treaty language to either
confirm or eliminate the application of general principles of law in WTO disputes.
Therefore, inherent powers become a practical basis on which tribunals may determine
on a case by case basis whether a general principle of law can be applied in WTO
disputes.
114 ILA Interim Report: Res Judicata, above n 95, 39; see also Luca G. Radicati di Brozolo, ‘Res
Judicata and International Arbitral Awards’ (Catholic University of Milan, 15 April 15
2011) 3 <http://ssrn.com/abstract=1842685>.
115 For detailed discussions, see eg, Sinai, above n 96.
116 Radicati di Brozolo, above n 114, 5.
117 Sinai, above n 96, 41.
118 American Law Institute, Restatement of the Law (Second) of Judgments (American Law
Institute Publishers, 1980) Ch.3, § 13‐ 33; ILA Interim Report: Res Judicata, above n 95, 46‐7;
Sinai, above n 96, 359‐60.
144
not only to the points that have actually been determined but also to the points that
properly belong to the subject of litigation, and which the parties could and should
have brought before the court in the earlier proceedings.119 This extended application
is also known as the doctrine of abuse of process,120 and it is not recognised in the US
Common Law. As explained in the Second Restatement of the Law, ‘there are many
reasons why a party might have chosen not to raise an issue, or to contest an
assertion, in a particular action’. 121 For example, the issue may be too small, the
litigation cost may outweigh the value of the lawsuit, or the forum in the earlier
proceeding may be an inconvenient one.122 Crucially, the Restatement considers that
the interests of issue preclusion such as the conservation of judicial resources, or the
maintenance of consistency, ‘are less compelling when the issue on which preclusion
is sought has not actually been litigated’.123 Importantly, unlike the English Common
Law, res judicata in the US may extend to third parties.124
The doctrine of res judicata in civil law countries is more restricted.125 There is no
concept of issue estoppel (issue preclusion), and thus the doctrine is applied to claims
only. Civil law countries also do not recognise the doctrine of abuse of process as in
English common law. 126 In the German civil system, for example, parties are not
prevented from litigating claims that have not been submitted for adjudication.127 In
addition, the effect of res judicata does not extend to reasoning as it does in the
English Common Law,128 but is generally limited to the formal order of judgments.
Importantly, the applicable conditions are normally construed stringently. 129 For

119 Ibid.
120 Barnett, above n 92, 225‐44; ILA Interim Report: Res Judicata, above n 95, 43.
121 American Law Institute, Restatement of the Law (Second) of Judgments above n 118, Ch.3, §
27, 256‐7. In American jurisprudence, the Restatements of the Law are a set of treatises on
legal subjects that seek to inform judges and lawyers about general principles of common
law. There have been three series of Restatements to date, all published by the American
Law Institute, an organization of legal academics and practitioners founded in 1923. See
<http://www.ali.org/index.cfm?fuseaction=about.overview>.
122 Ibid 256.
123 Ibid. This point will be discussed in the context of the WTO and RTAs in section IV.A.3
below.
124 ILA Interim Report: Res Judicata, above n 95, 46.
125 Ibid 49‐50.
126 Ibid 50.
129 For a detailed discussion on the principle of res judicata in civil law countries, especially in
France and German, see ILA Interim Report: Res Judicata, above n 95, 49‐54; Sinai, above n
96, 384‐7.
145

instance, under the French model, the thing claimed must be identical, as must the
legal basis of that claim. The identity of the parties is also interpreted narrowly to
mean the same party, or their universal successors (for example, in the case of a legal
merger), or successors with a specific title (such as assignee).130
The application of res judicata is also far from settled in international law. The hottest
debate revolves around the identity test: the same parties, the same object, and the
same grounds. It is sometimes argued that ‘the excessive insistence’ on formal
identity of the parties is unsatisfactory, as this will preclude the application of res
judicata in most cases.131 Therefore, some authorities suggest that the identity of the
parties needs to be considered liberally so as to also encompass proceedings
involving essentially the same parties.132 Even though some international courts and
tribunals also adopt this liberal interpretation,133 ‘other authorities which point to the
opposite direction, and embrace a more formal “identity of parties”’, also exist.134 For
example, the tribunal in CME Czech Republic BV v The Czech Republic found that res
judicata did not apply to the earlier award since, inter alia, the claimants in each
arbitration were not the same.135 Similarly, conflicting authorities also exist as to the
interpretation of the same issues requirement. Some scholars advocate for a flexible
approach, which asks whether ‘essentially the same issue’ is raised.136 Reinisch, for
example, considers that parallel proceedings based on ‘substantially identical
provisions found in different instruments’ should be seen as involving the same
grounds. 137 However, while some courts and tribunals have moved in this

131 Yuval Shany, ‘Jurisdictional Competition between National and International Courts:
Could International Jurisdiction‐Regulating Rules Apply?’ (2006) 37 Netherlands Yearbook
of International Law 3, 21.
132 Ibid 24; Reinisch, above n 92, 57‐60.
133 See, eg, Martin v Spain (1992) 73 Eur Comm HR 120, 134 (the Commission adopting a
‘substantially the same’ parties standard).
134 Shany, ‘Jurisdictional Competition between National and International Courts’, above n
131, 23.
135 CME Czech Republic BV (The Netherlands) v The Czech Republic (Final Award) (UNCITRAL
Arbitration Proceedings, 14 March 2003) [432]; see also ILA Interim Report: Res Judicata,
above n 95, 59.
136 Shany, ‘Jurisdictional Competition between National and International Courts’, above n
131, 26; Lowe, ‘Res Judicata and the Rule of Law’, above n 97, 41; Reinisch, above n 92, 61‐
72.
146
direction,138 others apply a formal identity test, and require the object and grounds of
the two proceedings to be exactly the same.139 The existence of these conflicting views
demonstrates that the scope of res judicata in international law remains uncertain, and
that neither the formal nor the liberal approach represents the current status of the
law (lex lata).
The existence of diverging approaches between legal systems, and in international
law, means that no meaningful universal principle of res judicata can be articulated.
Many fundamental questions are still open. To name just a few: Should the broader
notion of res judicata (in common law countries) or the narrow doctrine (in civil law
countries) be followed? Does the preclusive effect apply only to the dispositive part
or also to the reasoning of the award? How strictly should the identity test be
construed? Does res judicata apply also to claims and issues that could and should
have been raised in the earlier proceedings? Are third parties also bound by the res
judicata effect of an award? Are there situations in which the principle of res judicata
does not apply? Is res judicata part of public policy?140

138 See, eg, Martin v Spain (1992) 73 Eur Comm HR 120, 134‐5 (applying ‘the
substantially the same subject‐matter’ standard); Gubisch Machinenfabrik v
Palumbo (C‐144/86) [1987] ECR 4861, 4876 (stating that competing claims need
not be entirely identical); SGS Société Générale de Surveillance SA v Republic of the
Philippines (Decision on Objections to Jurisdiction) (ICSID Arbitral Tribunal, Case
No ARB/02/6,29 January 2004) [132(c)] (holding that ‘d]rawing technical
distinctions between causes of action arising under the BIT and those arising
under the investment agreement is capable of giving rise to overlapping
proceedings and jurisdictional uncertainty. [Thus,] such distinction ... should be
avoided to the extent possible, in the interests of the efficient resolution of
investment disputes by the single chosen forum’).
139 CME Czech Republic BV (The Netherlands) v The Czech Republic (Final Award) UNCITRAL
Arbitration Proceedings, 14 March 2003) [433] (noting that ‘[b]ecause the two bilateral
investment treaties create rights that are not in all respects exactly the same, different
claims are necessarily formulated’). See also Yuval Shany, ‘Jurisdictional Competition
between National and International Courts’, above n 131, 24‐5, and citations therein.
140 For a more detailed discussion, see Radicati di Brozolo, above n 114, 3‐4; Audley
Sheppard, ‘Res Judicata and Estoppel’ in Bernardo M. Cremades and Julian D.M. Lew
(eds), Parallel State and Arbitral Procedures in International Arbitration (ICC Publishing,
2005) 219, 229‐ 37.
147

It is not the purpose of this article to propose solutions to these fundamental
questions.141 The point is simply that, although res judicata may be identified as a
general principle of law, its scope is far from settled. This may not entirely negate,
although it undoubtedly diminishes, the chance that res judicata will be applied in
WTO disputes. Indeed, as Sheppard observes, ‘the differences in scope and
application of res judicata as between legal systems and even between countries make
the present state of the law unsatisfactory’. 142 Sheppard does not provide an
explanation for this proposition, but it is clear that dissatisfaction may result from the
fact that different models of res judicata may produce very different outcomes. In the
words of Brozolo, ‘applying one law rather than another may lead to dissimilar
results, which is a questionable outcome’.143
In the context of WTO disputes, the indeterminacy of res judicata may lower the
chance of it being applied on the basis of inherent powers. At the simplest level, it
may be difficult for WTO adjudicators to decide which version of the principle they
should apply. Even if WTO adjudicators can choose a particular model, the choice
tends to be controversial. This is because, as mentioned above, the differences in the
application outcomes of different models are not insignificant, and thus it is doubtful
whether WTO tribunals can persuasively justify their preference for one model over
others. In any event, such a choice seems to imply a great deal of discretion. In the
context of the WTO, where the dominant trend is ‘strict constructionism, insisting
heavily that [WTO tribunals] must remain very close to the text ... of the agreements
and not add to or diminish from the rights and the obligations of the contracting
parties, not fill any gap, et cetera’,144 it is unlikely that WTO adjudicators would make

141 The International Law Association has meaningfully moved in this direction. See ILA
Interim Report: Res Judicata, above n 95; International Commercial Arbitration Committee
of the International Law Association (ILA), Final Report: Res Judicata and Arbitration
(Toronto Conference, 2006) 27‐38 <http://www.ilahq.org/ download.cfm/docid/C5443B2B‐
406F‐4A42‐9BE49EE93FB92A4C> (‘ILA Final Report on Res Judicata’).
142 Sheppard, above n 140, 237.
144 Daniel Terris, Cesare P. R. Romano, and Leigh Swigart, ‘Profile: Georges Abi‐Saab’ in
Daniel Terris, Cesare P. R. Romano, and Leigh Swigart, The International Judge: An
Introduction to the Men and Women Who Decide the Worldʹs Cases (Oxford University
Press, 2007) 139. For a discussion on judicial restraints at the WTO, see also, eg, Gavin
Goh and David Morgan, ‘Political Considerations and Outcomes in WTO Dispute
Rulings’ (2007) 30 University of New South Wales Law Journal 477; Jose E. Alvarez, ‘The
Factors Driving and Constraining Incorporation of International Law in WTO
Adjudication’ in Merit E. Janow, Victoria J. Donaldson and Alan Yanovich (eds), The

148
a decision that might yield an impression of judicial law making. As a result, it
appears that WTO tribunals would not apply res judicata, since such an application
requires a far‐reaching decision as to which version of the principle is applicable.
Importantly, the fact that there remain unsettled issues on the scope and application
of res judicata means that it is difficult to predict how that principle would be
formulated and applied by WTO tribunals to respond to the issue or dispute that has
already been decided by an RTA tribunal. 145 This is ‘hardly satisfactory for the
parties, who obviously need to rely on uniform and especially predictable
solutions’. 146 Obviously, from the perspective of determinacy, res judicata, at its
current stage of development, is ‘a rather unpredictable tool’ 147 to regulate
consecutive proceedings over the same dispute before the WTO and RTA fora.
D The Ability of Res Judicata to Operate in WTO Disputes
The operationality of res judicata in the context of WTO disputes involving a conflict
of jurisdiction between WTO and RTA fora depends on whether its applicable
conditions can be satisfied in this situation. It is well established that it is possible for
substantially the same disputes, involving the same parties, substantially the same
types of relief, and based on similar provisions, to be submitted to both the WTO and
RTA fora. 148 Therefore, if WTO tribunals adopted the liberal construction of the
identity of object and grounds, res judicata could operate in WTO disputes with little
difficulty.
However, the liberal construction of the identity test would significantly widen the
preclusive effect of res judicata. In this case, not only identical, but also substantially
the same, issues or claims that have been decided by an RTA tribunal will be
prevented from being re‐litigated (or litigated in the case of substantially the same
issues or claims) before the WTO forum. There is a clear tension between, on the one

WTO Governance, Dispute Settlement & Developing Countries (Juris Publishing, 2008)
611.
145 As noted previously, this article deals specifically with the applicability of res judicata in
WTO disputes; and does not discuss the applicability of this principle in RTA disputes.
The latter issue depends on the texts of individual RTAs; and hence a discussion on this
issue would enlarge the scope of this article into an unmanageable extent.
147 William Thomas Worster, ‘Competition and Comity in the Fragmentation of International
Law’ (2008) 34(1) Brook Journal of International Law 119, 130.
148 Kwak and Marceau, above n 3, 465‐7; see also Marceau, ‘Conflicts of Norms’, above n 22,
1109; Gabrielle Marceau, ‘WTO Dispute Settlement and Human Rights’ (2002) 13(4)
European Journal of International Law 753, 812‐3.
149

hand, finality and its implications such as party convenience, judicial economy, and
systemic coherence and, on the other hand, procedural fairness and the interests of
justice as reflected in the constant search for truth, the proper legal outcome, and the
right to have a dispute decided by a court.149 The liberal construction undoubtedly
favours the former over the latter, and this may be unsatisfactory. In fact, the
interests brought about by finality, such as party convenience and the conservation of
judicial resources, which may be in themselves minor concerns in inter‐state
disputes,150 ‘are less compelling when the issue on which preclusion is sought has not
actually been litigated’.151 Indeed, if the disputes are not exactly the same, there is a
risk of justice being denied because parties may be denied the right to have a dispute
decided in the court of law. Sinai thus must be correct to suggest that res judicata is ‘a
drastic measure, it should be applied only in clear cases when a matter has been
specifically litigated and a litigant has had his actual day in court’. 152 Multiple
proceedings may be undesirable from an efficiency perspective, but, from a fairness
standpoint, parties ‘should be able to maintain claims before various tribunals if that
is what is required for them to be made whole’.153
Given this tension, the minimal concept of res judicata with narrow applicable
conditions seems to represent a more balanced approach because it only targets
disputes in which ‘a matter has been specifically litigated and a litigant has had his
actual day in court’.154 In this case, the preclusive effect may be justified since it can
save resources for disputing parties and judicial systems, as well as enhance legal
consistency and predictability. At the same time, since exactly, rather than
substantially, the same dispute, is restricted, no party is in reality deprived of its
fundamental right to have a dispute determined by a court. It might not be
coincidental that the International Law Association, after a thorough examination of
different ways to interpret the triple‐identity test, 155 has recommended that the
traditional construction requiring ‘the same claim or relief’, the ‘same cause of
actions’, ‘between the same parties’ should be maintained. 156 However, despite

149 Shany, The Competing Jurisdictions, above n 5, 164.
150 Lowe, ‘Overlapping Jurisdiction’, above n 13, 200‐1.
151 American Law Institute, Restatement of the Law (Second) Judgments, above n 118, Ch.3, § 27,
256.
153 Andrea K. Bjorklund, ‘Private Rights and Public International Law: Why Competition
Among International Economic Law Tribunals Is Not Working’ (2007) 59 Hastings Law
Journal 101, 159.
155 ILA Interim Report: Res Judicata, above n 95, 57‐9.
156 ILA Final Report on Res Judicata, above n 141, 32‐5.
150
representing a more balanced approach, the critical issue with narrow res judicata is
its operationality in WTO disputes. Except for the identity of parties, 157 other
conditions, namely the object and grounds, are unlikely to be satisfied. On this point,
Davey and Sapir observe that,
[e]ven though the same parties would be involved, the underlying issue would be
different ‐ in one case, a WTO violation would be claimed; in the other case, a
violation of some other agreement would be claimed. Even if the provisions at issue
were identical, the setting in which the cases arose would be different, and to the
extent that proper interpretation requires consideration of context and of the object
and purpose of the agreement, it is inevitable that the WTO agreement and the other
agreement would not be identical in those respects. Thus, since the same
interpretative result would not be inevitable, the claims could not be viewed as
identical. Moreover, different remedies would typically be available and enforced in
a different matter (i.e., in a multilateral, as opposed to a bilateral, setting).158
Clearly, under the narrow construction, the applicable conditions of res judicata could
not be satisfied in the context of WTO and RTA dispute settlement, and thus the
doctrine would not be operational.
There is evidence that WTO dispute settlement bodies would favour the narrow over
the broad res judicata. In India ‐ Autos, 159 the panel had to ‘clarify whether the
conditions on which India considered res judicata to be raised as a defence are met’.160
It emphasised that,
[b]ecause the policy underlying res judicata is to bring litigation of a particular
nature to an end at an appropriate stage, the key to its application should be to
compare what has already been ruled on to what is being brought before the
adjudicating body in the subsequent proceedings.161
The stress on the need to ‘compare what has already been ruled on to what is being
brought’ signifies that the panel was mindful about the scope of res judicata. This is
also evident in the panels subsequent statement, that
for res judicata to have any possible role in WTO dispute settlement, there
should, at the very least, be in essence identity between the matter previously

157 This is because there is a wide overlap of the membership between the WTO and RTAs.
158 William J. Davey and André Sapir, ‘The Soft Drinks Case: The WTO and Regional
Agreements’ (2009) 8(1) World Trade Review 5, 14‐5 (footnote omitted).
159 Panel Report, India – Measures Affecting the Automotive Sector, WTO Doc WT/DS146/R,
WT/DS175/R (21 December 2001) (‘India – Autos’).
160 Ibid [7.43].
161 Ibid [7.64] (emphasis added).
151

ruled on and that submitted to the subsequent panel. This requires identity
between both the measures and the claims pertaining to them. There is also,
for the purposes of res judicata, a requirement of identity of parties, which is
clearly met with regard to the United States in this instance.162
Evidently, the panel considered that res judicata can only be relevant in WTO dispute
settlement if the ‘matter’, which consists of ‘the specific measures at issue and the
legal basis of the complaint (or the claims)’,163 and the parties are the same. This is
obviously a formal requirement as to the identity of disputes. This approach is
justified because, as noted above, it can better balance conflicting interests, ensuring
that the preclusive effect does not extend to a matter that has not actually been
litigated. Nevertheless, it also means that the opportunity for res judicata to be applied
between WTO decisions would be limited.
Even though India ‐ Autos discusses the applicability of res judicata between WTO
decisions only, the case may also have important implications for jurisdictional
interaction between regimes because it reveals how a WTO tribunal may generally
approach the principle of res judicata. Certainly, it is unrealistic to expect that, while
WTO tribunals already strictly interpret the identity test for WTO decisions, they
would construe the test liberally in disputes where the jurisdiction of WTO dispute
settlement bodies appears to be in tension with the jurisdiction of a non‐WTO
tribunal. In Mexico ‐ Taxes on Soft Drinks,164 Mexico argued that ‘the United Statesʹ
claims under Article III of the GATT 1994 were inextricably linked to a broader
dispute’ under NAFTA.165 The Appellate Body pointed out that ‘neither the subject
matter nor the respective positions of the parties are identical in the dispute under the
NAFTA ... and the dispute before us.’ 166 Specifically, it noted that in the alleged
NAFTA dispute, the complainant and respondent were Mexico and the US
respectively, but that in the WTO case, the situation was reversed. Moreover, in the
NAFTA dispute, Mexico complained about US quotas, whereas in the WTO dispute,
the US complained about a Mexican tax.167 Impliedly, the panel and the Appellate

162 Ibid [7.66].
163 Ibid [7.65].
164 Panel Report, Mexico – Tax Measures on Soft Drinks, WTO Doc WT/DS308/R; Appellate
Body Report, Mexico – Tax Measures on Soft Drinks and Other Beverages, WTO Doc
WT/DS308/AB/R
WT/DS308/AB/R, [54].
166 Ibid (emphasis added).
167 Ibid (the AB referred to Panel Report in the same case at [7.14]).
152
Body in this case would only view the NAFTA and WTO disputes as ‘inextricably
linked’ to each other if the parties and the subject matter were ‘identical’.
These rulings suggest that, in both cases—where res judicata is raised between WTO
decisions, and across regimes—WTO tribunals would adopt the formal identity tests.
This suggests that the applicable conditions of res judicata would never be satisfied in
WTO disputes where there is a conflict of jurisdiction between WTO and RTA
dispute settlement because, as discussed above, it is hard to describe these disputes
as identical.168
E The Consistency of Res Judicata with WTO law
Were res judicata to apply in WTO disputes, WTO tribunals may have to decline
jurisdiction on disputes that are conceived as having been resolved by an RTA
tribunal. This might mean that WTO tribunals entitle Members to settle WTO
disputes at an outside forum. This would be inconsistent with the fundamental
principle set out in Article 23 DSU, which requires that,
[w]hen Members seek the redress of a violation of obligations or other nullification or
impairment of benefits under the covered agreements or an impediment to the
attainment of any objective of the covered agreements, they shall have recourse to,
and abide by, the rules and procedures of this Understanding.169
It is widely accepted that, in addition to its original purpose of constraining unilateral
actions, Article 23 also impliedly confers upon WTO dispute settlement bodies the
exclusive jurisdiction to determine WTO disputes.170 Were res judicata to have the

168 It is worth noting that the preceding discussion concerns violation complaints where a
WTO Member has violated a WTO agreement. However, in some situations, a WTO
Member can initiate a dispute even when an agreement has not been violated (the so‐
called ‘non‐violation complaint’). In such cases, the identity of the legal basis between
disputes would be impossible to be established because no substantive provision of WTO
law has been breached. Thus, it is also particularly difficult for res judicata to be applied in
WTO disputes where a non‐violation complaint is involved. See DSU, article 26; GATT,
articles XXIII(1)(b), XIII(1)(c). For a discussion, see Christophe Larouer, ‘WTO Non‐
Violation Complaints: A Misunderstood Remedy in the WTO Dispute Settlement System’
(2006) 53 Netherlands International Law Review 97.
April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1A (‘General Agreement
on Tariffs and Trade 1994’) article XXIV, art 23.1.
170 Morgan, above n 3, 256; Van Damme, above n 21, 8‐10; John H. Jackson, The World
Trading System: Law and Policy of International Economic Relations (MIT Press, 2nd, 1997) 124;
Peter Van den Bossche, The Law and Policy of the World Trade Organization: Text, Cases and

153

effect of allowing Members to settle WTO disputes at an outside forum this
implication would be undermined. The inconsistency with WTO law of declining of
jurisdiction was decisively confirmed in Mexico ‐ Taxes on Soft Drinks, in which the
Appellate Body agreed with the Panel that various provisions of the DSU,
particularly Articles 3.2, 7.1, 7.2, 11, 19.2, and 23, prevent a WTO tribunal from
declining its jurisdiction in a case properly before it.171
It follows that, insofar as a conflict of jurisdiction between WTO and RTA dispute
settlement is concerned, res judicata cannot be applied in WTO disputes. As noted
previously, the legal basis on which res judicata may apply in WTO disputes is not the
explicit treaty language, but inherent powers of WTO tribunals. As a result, the
inconsistency with WTO law brought about by the application of res judicata may
render the norm inapplicable in WTO disputes. Even though WTO tribunals possess
inherent powers, these powers cannot extend so far as to allow WTO tribunals to
apply rules or principles that are inconsistent with provisions in the constitutive
instrument, that is, the DSU. As Damme observes, WTO tribunals can generally
‘enjoy’ an inherent power if there is no ‘contradictory language in the constitutive
document’.172 As a result, if res judicata is in tension with WTO law, res judicata, rather
than WTO law, may have to give way.
F Lis Pendens
Lis pendens, literally ‘a law suit pending’,173 is a concept describing a factual ‘situation
in which parallel proceedings, involving the same parties and the same cause of
action, are continuing in two different States at the same time’. 174 From a policy
perspective, it is widely accepted that lis pendens is undesirable because duplicative
proceedings may lead to a waste of resources and undermine legal certainty and
predictability.175 It is unsurprising, therefore, that most civil law and common law

Materials (Cambridge University Press, 2005) 180‐81; Marceau, ‘WTO Dispute Settlement
and Human Rights’ above n 148, 760.
WT/DS308/AB/R, [44]‐[57].
173 Norah Gallagher, ‘Parallel Proceedings, Res Judicata and Lis Pendens: Problems and
Possible Solutions’ in Loukas A. Mistelis and Julian D.M. Lew QC (eds), Pervasive
Problems in International Arbitration (Kluwer Law International, 2006) 329, 338.
174 Fawcett, above n 13, 27.
175 Ibid; Shany, The Competing Jurisdictions, above n 5, 161; Gallagher, above n 173; Gregoire
Andrieux, ‘Declining Jurisdictions in a Future International Convention on Jurisdiction
and Judgments – How Can We Benefit from Past Experiences in Conciliating the

154
countries ‘view parallel litigation, when arising between courts of the same legal
system, as an intolerable tactic and apply rules to abate the situation’.176
In many countries, declining jurisdiction is the most common response to parallel
proceedings,177 though the techniques vary significantly between legal traditions.178 In
civil law countries, declining jurisdiction is generally achieved by utilising a
mechanical first‐in‐time rule, which holds that during the pendency of one set of
proceedings, it is not permissible to initiate another set of competing proceedings
concerning the same dispute. 179 In contrast, in common law countries, declining
jurisdiction could be obtained as part of the application of the forum non conveniens
doctrine, in which lis pendens is only one factor within the courts’ assessment of the
appropriate forum.180 The fact that a proceeding has been commenced in a foreign
court will not be relevant if it has been clearly initiated for tactical purposes. Only in
a situation where the litigation has progressed to an advanced stage, and is likely to
resolve the whole dispute, will it be given greater weight.181 In this sense, lis pendens
is a self‐standing doctrine in civil law countries but only a ‘facet, albeit an important
one, of the doctrine of forum non conveniens’ in common law countries. 182 Some
studies take this divergence into consideration,183 but many others seem to equate the
mechanical first‐in‐time rule found in many civil law countries with the general
meaning of the doctrine of lis pendens.184

Doctrines of Forum Non Conveniens and Lis Pendens’ (2005) 27 Loyola of Los Angeles
International and Comparative Law Review 323, 349.
176 Shany, The Competing Jurisdictions, above n 5,162.
178 International Commercial Arbitration Committee of the International Law Association
(ILA), Final Report: Lis Pendens and Arbitration (Toronto Conference, 2006) 4
<http://www.ila‐hq.org/download.cfm/docid/C5443B2B‐406F‐4A42‐9BE49EE93FB92A4C>
(ILA Final Report on Lis Pendens).
179 Shany, The Competing Jurisdictions, above n 5, 22; ILA Final Report on Lis Pendens, above n
178, 7; Reinisch, above n 92, 43‐4.
180 Fawcett, above n 13, 29; Campbell McLachlan, ‘Lis Pendens in International Litigation’
(2008) 336 Recueil Des Cours 199, 313, 337.
181 McLachlan, above n 180, 313, and citations therein.
183 See, eg, ILA Final Report on Lis Pendens, above n 178; McLachlan, above n 180; Gilles
Cuniberti, ‘Parallel Litigation and Foreign Investment Dispute Settlement’ (2006) 21
ICSID Review‐ Foreign Investment Law Journal 381.
184 See, eg, Reinisch, above n 92, 43‐4; Lowe, ‘Overlapping Jurisdiction’, above n 13, 202;
Kwak and Marceau, above n 3, 480; Gallagher, above n 173, 338; Shany, The Competing
Jurisdictions, above n 5, 22 (though Shany is fully aware of the divergence of lis pendens
between common law and civil law countries).
155

The extent to which the doctrine of lis pendens can apply internationally is a
longstanding question.185 The debate has recently ‘taken on renewed urgency and
complexity’ as a result of the multiplicity of international courts and tribunals, and
the more frequent and closer interaction between these judicial bodies. 186 In this
context, potential parallel proceedings before the WTO and RTA fora are
undoubtedly a useful case study to discuss the relevance of lis pendens in
international law. It appears that, as established in section III above, the applicability
of lis pendens in WTO disputes to resolve a conflict of jurisdiction between WTO and
RTA dispute settlement may depend on various factors, particularly its legal status,
determinacy, operationality, and WTO‐consistency. The following sections will
provide a detailed discussion on these issues.
G The Legal Status of Lis Pendens
Unlike res judicata, whether lis pendens is a general principle of law is a controversial
issue. The relevant case law is ‘too scarce and non‐determinative’ to confirm the
existence of such a general principle.187 Indeed, the question was left undecided by
the Permanent Court of International Justice. In Certain German Interests in Polish
Upper Silesia,188 the Court was asked to rule on an application by Germany for a
declaration of rights concerning the alleged expropriation of a factory owned by a
German company at Chorzow in Poland.189 In considering the effect of the pending
claim brought by the owner of the factory before a Mixed Arbitral Tribunal, the court
stated that it was unnecessary for it to decide whether lis pendens is a general
principle of law because ‘the essential elements which constitute [lis pendens] are not
present’.190 In Factory at Chorzow,191 which presented a similar set of facts to Certain

185 In 1925, the PCIJ commented that ‘[i]t is a much disputed question in the teaching of legal
authorities and in the jurisprudence of the principal countries whether the doctrine of
lispendance, the object of which is to prevent the possibility of conflicting judgements, can
be invoked in the international relation’ in Certain German Interests in Polish Upper Silesia
(Germany v Poland) (Judgment) [1925] PCIJ (ser A) No 6, 20.
186 McLachlan, above n 180, 264.
187 Shany, The Competing Jurisdictions, above n 5, 244; see also McLachlan, above n 180, 456‐
67.
188 Certain German Interests in Polish Upper Silesia (Germany v Poland) (Judgment) [1925] PCIJ
(ser A) No 6.
189 For a detailed discussion on the case law on lis pendens, see Shany, The Competing
Jurisdictions, above n 5, 239‐45; McLachlan, above n 180, 456‐67.
190 Certain German Interests in Polish Upper Silesia (Germany v Poland) (Judgment) [1925] PCIJ
(ser A) No 6, 20.
191 Factory at Chorzow (Germany v Poland) (Jurisdiction) 1927 PCIJ (ser A) No 9.
156
German Interests in Polish Upper Silesia, the Court rejected an application by the Polish
Government asking the Court to declare that it had no jurisdiction to deal with the
dispute initiated by the German Government.192 Notably, in doing so, the Court made
reference, albeit indirectly, to the principle of estoppel,193 rather than the lis pendens
doctrine. 194 Clearly, the PCIJ jurisprudence neither supports nor repudiates the
relevance of lis pendens as a rule applicable to international courts and tribunals.195
The jurisprudence of other international courts and tribunals is also inconclusive.196
Judge Treves, in a Separate Opinion in Mox Plant, viewed the legal status of lis
pendens as a ‘completely open’ issue. 197 Importantly, in the Pyramids case, 198 the
tribunal explicitly stated that ‘[w]hen the jurisdictions of two unrelated and
independent tribunals extend to the same dispute, there is no rule of international
law which prevents either tribunal from exercising jurisdiction’. 199 This statement
implies that, in this specific situation, the tribunal did not find itself bound by any
preclusive rule, arguably including lis pendens.200 This holds true even though the
tribunal immediately emphasized that ‘in the interest of international judicial order,
either of the tribunals may, in its discretion and as a matter of comity, decide to stay
the exercise of its jurisdiction pending the decision by the other tribunal’.201 Clearly,
the stay of jurisdiction in this case is treated as a matter of discretion and comity
rather than obligation imposed by lis pendens.202 In a few ECJ cases,203 lis pendens was
applied to preclude attempts to bring multiple proceedings before the ECJ. 204
However, the relevance of these cases to the current discussion is limited because
they 8do not involve the jurisdictional conflicts between different international fora,

192 Ibid 32‐4.
193 Ibid 31.
195 Ibid.
196 Ibid 242‐2.
197 Ireland v United Kingdom (‘MOX Plant Case’) (Request for Provisional Measures)
(International Tribunal of the Law of the Sea, Case No 10, 3 December 2001) [5] (Judge
Treves).
198 Southern Pacific Properties (Middle East) Limited v Arab Republic of Egypt (the Pyramids Case)
(Award on the Merits) (1995) 3 ICSID Rep 45.
199 Ibid 129.
201 Ibid 129.
202 McLachlan, above n 180, 464.
203 See, eg, Hoogovens Groep v Commission (C‐172, 226/83) [1985] ECR 2831; France v Parliament
(C‐358/85, 51/86) [1988] ECR 4846, 4849‐4850.
157

but the management of proceedings before a single judicial body.205 In any event, it
could be reasonably concluded that the practice of international courts and tribunals
is too limited and inconclusive to either confirm or dismiss the existence of an
international rule of lis pendens.
In academic circles, the legal status of lis pendens is also a controversial issue.
Reinisch, for example, asserts that
it can hardly be disputed that lis pendens is also a rule of international law
applicable in international proceedings. The widespread use and similarity of
the concept of lis pendens in the national procedural laws of states of all
traditions as well as its inclusion in a number of bi‐and multilateral
agreements is evidence that lis pendens can be regarded as a general principle
of law in the sense of Article 38 of the ICJ Statute.206
However, this conclusion is troublesome. To Reinisch, lis pendens is strictly a first‐in‐
time rule because, in his view, it is a rule preventing an initiation of a new
proceeding, where ‘litigation between the same parties and involving the same
dispute is already pending’.207 As noted above, however, this narrow interpretation
of the rule is not reflected in the national procedural laws of states of ‘all
traditions’.208 Common law countries, at least, do not generally apply the mechanical
first‐in‐time rule. The convergence between civil law and common law countries is
essentially limited to the idea that parallel proceedings need to be taken into account
and governed. Beyond that, the two legal traditions do not share the same legal
response to parallel proceedings. Consequently, lis pendens, in the form of a first‐in‐
time rule, does not seem to be applicable across legal traditions, 209 and cannot
therefore be regarded as a general principle of law in the sense of Article 38(1)(c) of
the ICJ Statute.210 It may not be entirely coincidental, therefore, that lis pendens ‘does
not even merit a mention in Cheng’s classic 1953 study, or in Sir Hersch
Lauterpacht’s earlier work on private law sources’.211

205 Ibid.
206 Reinisch, above n 92, 48 (citations omitted).
207 Ibid 43‐4.
208 Ibid.
209 For a discussion on this requirement, see, e.g., Jaye Ellis, ‘General Principles and
Comparative Law’ (2011) 22(4) European Journal of International Law 949, 955; see also,
Fabian O. Raimondo, ‘General Principles of Law as Applied by International Criminal
Courts and Tribunals’ (2007) 6 The Law and Practice of International Courts and Tribunals
393, 400.
210 See Cuniberti, above n 183.
211 McLachlan, above n 180, 460 (citation omitted).
158
In addition, Reinisch argues that the existence of lis pendens as a general principle of
law ‘follows from the applicability of res judicata’.212 He believes that it would be
illogical to allow parallel proceedings to occur before different fora ‘up to the point
where one of them has decided the case and then prevent the other (‘slower’) one
from proceeding as a result of res judicata.’213 This may not necessarily be so. The
application of res judicata means that, in any case, parties will end their dispute with
one valid judgment. Nevertheless, ‘declining jurisdiction on the ground that another
proceeding is pending does not necessarily guarantee that the other proceeding will
ultimately resolve the dispute’.214 Thus, the right to have a dispute decided by a court
of competent jurisdiction is more secure where res judicata rather than lis pendens is
applied. Clearly, there might be compelling reasons to apply res judicata but not lis
pendens.
In general, it is on the one hand undeniable that lis pendens ‘is a fundamental
principle of procedural fairness and justice that is normally considered to form part
of procedural public policy in most legal systems’. 215 Indeed, though the legal
techniques vary across legal traditions, there is ‘a strong indication of the near
universal opposition’ to the phenomenon of parallel proceedings where they occur in
the same legal system.216 On the other hand, it is still far from settled whether lis
pendens has graduated to be a general principle of law. It was established in section
III.A above that if a rule cannot be unambiguously qualified as a general principle of
law, it is unlikely that it will be applied in WTO disputes on the basis of inherent
powers. This is because if WTO tribunals were to use their inherent powers to apply
a rule that has not been clearly established as a general principle of law, the decision
would yield a strong impression of judicial law making, which is obviously not the
policy pursued by WTO judicial bodies. Therefore, given the above‐mentioned
controversy regarding the legal status of lis pendens, it is improbable that WTO
adjudicators will use their inherent powers to apply this principle in WTO disputes.
H The Determinacy of Lis Pendens
Even if there were an international lis pendens doctrine applicable to international
courts and tribunals, the content, scope and applicable conditions of that rule would

212 Ibid 50.
213 Ibid.
214 Pauwelyn and Salles, above n 5, 108.
215 Kaj Hober, ‘Parallel Arbitration Proceedings – Duties of the Arbitrators’ in Bernardo M.
Cremades and Julian D.M. Lew, Parallel State and Arbitral Procedures in International
Arbitration (ICC Publishing, 2005) 243, 253.
216 Shany, The Competing Jurisdictions, above n 5,154‐63.
159

still pose difficulties. Aside from the general requirement that parallel proceedings
should be avoided and governed by appropriate rules,217 no further requirements
associated with the lis pendens rule apply uniformly across legal traditions. The ILA
spent the first 23 pages of its 26 page examining the meaning, scope, and applicable
conditions of lis pendens.218 However, it could not distil a universal definition of the
doctrine, and ended its examination with the admission that ‘decisions of arbitral
tribunals on lis pendens are “generally too sparse and contradictory to constitute in
any way representative statements of an accepted practice amounting to a procedural
rule”’.219 The ILA thus agreed with Houtte that ‘there does not yet exist a clear and
global transnational lis alibi pendens’ rule.220
One consequence of this divergence is that, if WTO tribunals were to apply lis
pendens, they would first have to define a lis pendens rule for their own purposes.
Such a rule may draw on the mechanical first‐in‐time rule applied in most civil law
countries, the more flexible common law model which forms part of the doctrine of
forum non conveniens, or an entirely new model of the lis pendens rule. If the latter
occurs, excessive discretion could be exercised, and the application of lis pendens
might become less predictable. This is because, as explained in section III.B above, the
meaning, scope, and applicable conditions of lis pendens in this case would depend
largely on the discretion of adjudicators, rather than clearly predefined rules. The
third option would expose WTO tribunals to criticisms of judicial activism, but
adopting the civil law or common law model does not necessarily present a better
option. The civil law and common law techniques are vastly different and, as noted
above, may lead to very different outcomes. Essentially, if the first‐in‐time rule is
applied, the court second‐seized must decline its jurisdiction in favour of the court
first‐seized. However, this may not be the case where the common law version,
which is far less preclusive, is utilised. Under the common law framework, the court
in which the second proceeding is initiated has inherent powers to either decline or

217 McLachlan, above n 180, 461, 500. In the current author’s opinion, this commonality is
almost unhelpful as it does not indicate any particular solution for dealing with parallel
proceedings.
218 ILA Final Report on Lis Pendens, above n 178.
219 Ibid 23, citing Douglas Reichert, ‘Problems with Parallel and Duplicative Proceedings:
The Litispendence Principle and International Arbitration’ (1992) 8 Arbitration
International 237, 238.
220 ILA Final Report on Lis Pendens, above n 178, 23, citing Hans van Houtte, ‘Parallel
8Proceedings before State Courts and Arbitration Tribunals: Is There a Transnational lis
alibi pendens Exception in Arbitration or Jurisdiction Convention?’ in Pierre A. Karrer
(ed), Arbitral Tribunals or State Courts: Who Must Defer to Whom? Swiss Arbitral Association
Special Series No 15 (2001) 35, 53‐4.
160
continue to rule on the dispute, and would only consider declining jurisdiction if the
first litigation is far advanced and likely to decide the whole dispute.221 In any event,
it would be extremely challenging for WTO tribunals, as in the case of res judicata, to
justify why they would prefer a particular model, be it a civil law or common law
rule, over another one.
For the various reasons outlined above, the indeterminacy of lis pendens at the
international level appears to seriously undercut its potential to govern parallel
proceedings before international fora, particularly in the context of the WTO where,
as mentioned above, adjudicators are conscious of their limited mandate and inclined
to avoid decisions that are suggestive of adjudicative law making.
I The Ability of Lis Pendens to Operate in WTO Dispute Settlement
Even if the difficulties concerning the legal status and determinacy might be
overcome, it is still doubtful whether the current civil law and common law rules on
lis pendens can operate in WTO disputes. For the civil law first‐in‐time rule, it is
widely accepted that the applicable conditions are similar to that of res judicata, that
is, identity of parties, object, and grounds between two proceedings.222 The last of
these conditions could never be satisfied in WTO disputes to resolve a jurisdictional
conflict between WTO and RTA dispute settlement. Certainly, as analysed in section
IV.A.3 above, the parties in parallel WTO and RTA proceedings may be the same,
and the relevant relief provided in the WTO and RTAs may be similar, but the
grounds of disputes could never be identical as they are based on different
agreements. Conversely, if the identity of disputes were construed liberally to
encompass also essentially the same disputes, the applicable conditions of lis pendens
would be met in the context of WTO and RTA dispute settlement because, as
mentioned above, it is possible for essentially the same disputes to be brought in
parallel in both the WTO and RTA fora.
Even if the applicable requirements were satisfied, however, there might still be other
reasons preventing the doctrine from operating in WTO disputes. The report of the
International Law Association states that ‘[t]he application of lis pendens … assumes
that the parallel proceedings are before fora of equal status’.223 To understand this
requirement, it is worth emphasizing that lis pendens was originally designed to
regulate parallel proceedings before municipal courts of the same legal system,
where

221 McLachlan above n 180, 313 and citations therein.
222 Reinisch, above n 92, 50‐1.
223 ILA Final Report on Lis Pendens, above n 178, 13.
161

the competing adjudicators were very similar, and very hard to distinguish
from each other. They had all been instituted by the same legal order and had
therefore the same authority. They would, at least in non federal countries,
apply the same procedures. For political reasons, it had to be assumed that the
judges would be equally skilled to try the dispute.224
The first‐in‐time rule is useful in the municipal context because it helps to distinguish
between adjudicators who are very similar in most aspects. Cuniberti has observed
that
[a]s it would not have been acceptable to find that one given first instance
court was superior to or more legitimate than another first instance court of
the same country, it was only natural that the institution would ultimately rely
on a test that would be as neutral as possible [that is, a simple time factor] to
distinguish between them and design the one that should retain jurisdiction.225
However, the situation may be different in international law. Even though
international courts and tribunals might exist within a single system of international
law, 226 their treaty‐based jurisdiction suggests that there may be significant
differences in ‘institutional and historical context, proceeding, applicable law,
remedies, expertise, and legitimacy’ between international courts and tribunals.227 As
a consequence, it would be almost impossible to conclude that two international fora
are the same or comparable. 228 Clearly, the equality of different fora, a condition
developed in the municipal context for the application of lis pendens, may not be
sufficient at the international level to enable a meaningful transfer of lis pendens from
the former to the later. Pauwelyn and Salles are thus correct to suggest that the
application of lis pendens in international law may be ‘artificial’.229
These observations seem particularly true for WTO and RTA dispute settlement.
Even though many RTA dispute settlement mechanisms resemble the WTO dispute
settlement model, the two mechanisms are unlikely to be considered equal. The
existence of certain common procedural features does not guarantee that the two
processes will provide the same, speed, automaticity, enforcement mechanisms, rule‐
based process, and legally binding decisions. RTA dispute settlements also lack the

224 Cuniberti, above n 183, 384.
225 Ibid 383.
226 Shany, The Competing Jurisdictions, above n 5, 65‐127; Anne‐Marie Slaughter, ‘A Global
Community of Courts’ (2003) 44 Harvard International Law Journal 191.
228 Ibid.
229 Ibid.
162
well‐developed appeal process applicable in WTO disputes.230 Thus, it seems likely
that an essential prerequisite for the application of lis pendens, that the ‘the parallel
proceedings are before fora of equal status’, 231 is not met in the WTO and RTA
context. Thus, an adoption of lis pendens into this environment may not yield the
desirable outcome. For example, even if the WTO tribunal had applied lis pendens in
Mexico ‐ Taxes on Soft Drinks and dismissed the case in favour of the earlier‐initiated
NAFTA dispute, the defect of the NAFTA process (the possibility for a NAFTA party
to block the establishment of a panel by refusing to appoint a panellist), which was
actually exercised by the US in this case, ‘would have left the case in limbo’.232
The preceding analysis suggests that the civil law version of lis pendens ‐ either
construed formally or informally ‐ may not be suitable in the context of WTO and
RTA dispute settlement. This raises an interesting question as to whether the
common law counterpart could operate in this context. As mentioned above, lis
pendens does not exist as a self‐standing legal doctrine in common law countries, but
rather as a facet of the forum non conveniens doctrine.233 If a genuine proceeding has
been started and progressed to an advanced stage, and is likely to decide the whole
dispute, then it may be a relevant, but not necessarily decisive, factor in the
determination of the appropriate forum.234 Obviously, in order to determine whether
such a consideration is possible in WTO disputes, it is necessary to examine whether
the broader doctrine of the forum non conveniens could be applied in WTO disputes.
The greatest advantage of the forum non conveniens doctrine is its flexibility.235 The
crucial factor for its operation is whether ‘another court has jurisdiction over the
action and is more appropriate than the forum before which it was brought’,236 rather
than whether the two proceedings involve the same parties, objects, and grounds.237
The forum non conveniens doctrine compares the processes of different courts to
determine the convenience to the parties; it does not compare actions.238 This means

230 For a comparison, see, eg, Davey and Sapir, above n 158, 16‐7; William J. Davey, ‘Dispute
Settlement in the WTO and RTAs: A Comment’ in Lorand Bartels and Federico Ortino
(eds), Regional Trade Agreement and WTO Legal System (Oxford University Press, 2006) 343,
354‐7; Morgan, above n 3, 248‐57.
231 ILA Final Report on Lis Pendens, above n 178, 13.
234 McLachlan, above n 180, 313; Fawcett, above n 13, 29‐31; ILA Final Report on Lis Pendens,
above n 178, 6.
163

that the use of the forum non conveniens doctrine in WTO disputes to assess the
relevance of an RTA pending dispute would not face the technical hurdles
concerning the identity of disputes as in the case of res judicata or the civil law version
of lis pendens.
Nevertheless, other factors may prevent the adoption of the forum non conveniens
doctrine. For one thing, a municipal court will only consider itself to be an
inconvenient forum if the alternative forum would have jurisdiction over the whole
dispute before it.239 This would be difficult in the WTO and RTA context because,
while WTO Members are not allowed to bring WTO disputes to the outside forum in
accordance with Article 23 of the DSU, the WTO dispute settlement system is also
unauthorised to ‘determine rights and obligations outside the covered agreements’.240
To put it another way, WTO and RTA dispute settlement systems do not have
jurisdiction over the dispute before the other forum. Thus, to refer a WTO case to an
RTA forum and vice versa would mean sending a dispute to a forum where it could
not be resolved, depriving the parties of their fundamental right to have a dispute
decided by a court of competent jurisdiction. Cuniberti succinctly observes the point
as follows:
[i]t would not be permissible, for any adjudicator, to decline jurisdiction
without ensuring that the competing adjudicator would have jurisdiction over
the whole dispute. Any decision to the contrary would amount to a denial of
justice.241
Importantly, forum non conveniens is a discretionary abstention doctrine.242 In order to
determine the appropriate forum judges must exercise their discretion in order to
balance and weigh the interests of the plaintiffs and those of defendants and the
administration of justice more generally.243 Such a highly discretionary doctrine does
not seem to fit well with the tendency of judicial restraint at the WTO, where
adjudicators are acutely aware of their limited mandate, and ‘have been cautious at
making rulings that could be perceived as “pushing the envelope” or judicial
adventurism’.244

239 Pauwelyn and Salles, above n 5, 111, and citations therein.
240 Appellate Body Report, Mexico – Tax Measures on Soft Drinks and Other Beverages,
WTO Doc WT/DS308/AB/R, [56].
241 Cuniberti, above n 183, 421 (citation omitted).
243 Ibid.
244 Goh and Morgan, above n 144, 488.
164
The above considerations reveal that neither the first‐in time rule nor the common
law version of lis pendens are ideal in the context of WTO and RTA dispute
settlement.
J The Consistency of Lis Pendens with WTO Law
In order to assess the consistency of lis pendens with WTO law, it is first necessary to
envision its potential outcomes. If applying the first‐in‐time rule, WTO tribunals
would have to decline jurisdiction if the RTA case is initiated before the WTO case.
Similarly, if the broader forum non conveniens doctrine were applied, and the WTO
tribunal were to agree that the proceeding had been genuinely initiated, advanced to
a substantial stage, and potentially resolved, the WTO tribunal may be required to
decline its jurisdiction. The outcomes are thus the same between the civil law and
common law versions, that is, the dispute would have to be adjudicated solely by an
RTA tribunal. This, as explained in section IV.A.4 above, effectively amounts to
allowing WTO Members to settle WTO disputes outside the framework of the WTO,
which is directly inconsistent with the fundamental principle set out in Article 23 of
the DSU. Under the framework established in section III, if a non‐WTO rule is
inconsistent with WTO law, and the legal basis for its application stems from the
WTO tribunals’ inherent powers, that rule could not prevail over the explicit
provisions of WTO law. Given its potential WTO‐inconsistency, lis pendens would
appear to be inapplicable in WTO disputes.
V CONCLUSION
This article has examined the principles of res judicata and lis pendens to assess their
applicability in WTO dispute settlement as WTO tribunals’ inherent powers to
resolve jurisdictional conflicts between dispute settlement mechanisms of the WTO
and RTAs. The article first established that the applicability of jurisdiction‐regulating
norms such as res judicata and lis pendens in WTO disputes under tribunals’ inherent
powers might depend on various factors, particularly, the legal status, determinacy,
ability to operate in WTO disputes, and WTO‐consistency of these norms. The article
then used these criteria to closely evaluate the applicability of res judicata and lis
pendens. It concluded that the legal status, determinacy, ability to operate in WTO
disputes, and WTO‐consistency vary substantially between res judicata and lis
pendens, and most importantly, that none of these norms appears to satisfy all of these
criteria to an acceptable degree. As a result, neither res judicata nor lis pendens might
be satisfactorily applied in WTO disputes under tribunals’ inherent powers to resolve
jurisdictional conflicts between dispute settlement mechanisms of the WTO and
RTAs.
165

The Applicability of Res Judicata and Lis Pendens in World Trade Organisation Dispute Settlement

Uploaded by

Copyright:

Available Formats

The Applicability of Res Judicata and Lis Pendens in World Trade Organisation Dispute Settlement

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

The Applicability of Res Judicata and Lis Pendens in World Trade Organisation Dispute Settlement

Uploaded by

Copyright:

Available Formats

Bond Law Review

The applicability of Res Judicata and Lis Pendens in

Follow this and additional works at: http://epublications.bond.edu.au/blr

This article is available in Bond Law Review: http://epublications.bond.edu.au/blr/vol25/iss2/10

Published by ePublications@bond, 2013 1

Published by ePublications@bond, 2013 3

resolve WTO‐RTA jurisdictional conflicts. Moreover, in cases of multiple

Published by ePublications@bond, 2013 5

Published by ePublications@bond, 2013 7

Published by ePublications@bond, 2013 9

Published by ePublications@bond, 2013 11

Published by ePublications@bond, 2013 13

Published by ePublications@bond, 2013 15

Published by ePublications@bond, 2013 17

Published by ePublications@bond, 2013 19

Published by ePublications@bond, 2013 21

Published by ePublications@bond, 2013 23

Published by ePublications@bond, 2013 25

Published by ePublications@bond, 2013 27

Published by ePublications@bond, 2013 29

Published by ePublications@bond, 2013 31

Published by ePublications@bond, 2013 33

Published by ePublications@bond, 2013 35

Published by ePublications@bond, 2013 37

Published by ePublications@bond, 2013 39

Published by ePublications@bond, 2013 41

Published by ePublications@bond, 2013 43

You might also like