Originally from The Swedish Arbitration Act of 1999, Five Years On: A Critical Review of Strengths and Weaknesses

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I. INTRODUCTION

The issue of lis pendens and res judicata are fundamental principles of procedural law. On their surface they appear as clear-cut and not susceptible of stirring academic controversy.

However, looking somewhat closer at these concepts and their practical application in the variegated circumstances of live situations one will soon discover that they will occasionally appear less self evident and less suited for sweeping categorical statements.

This paper will endeavour to look at some situations which may arise in adjudicatory practice at the crossroads of competing court and arbitration proceedings and their resultant decisions.

This paper will discuss these issues from the perspective of the arbitrator.

II. REGULATION WITH NATION-WIDE SCOPE OF APPLICATION

Nowadays, the rules on res judicata and lis pendens are part of the domestic procedural arsenal of all countries with reasonably well- developed legal traditions. Usually — and always so in the civil-law systems of Continental Europe — these rules are in¬cluded in the respective Acts on Procedure (The Swedish Procedural Code, Chapt. 13, Art. 6 (lis pendens) and Chapt. 17, Art. 11 (res judicata), German § 322 ZPO, French Nouv.C.Proc.Civ, Art 480), while the so-called estoppel per rem judicatam is a non-statutory rule of evidence in English law.