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The Application of the Henderson v Henderson Rule in International Arbitration

David A R Williams QC & Mark Tushingham

(2014) 26 SAcLJ 1036

The rule in Henderson v Henderson prevents parties from raising claims and defences in subsequent proceedings which could and should have been pursued in earlier proceedings but were not so pursued. In this article, the authors explain how the Henderson rule finds its origin in early arbitration cases. They discuss how the Henderson rule operates in practice where parties have participated in a prior arbitration and then seek to commence fresh proceedings raising matters that could and should have been brought in the earlier arbitration. The authors then consider whether the Henderson rule is best characterised as a procedural or substantive rule of law and whether arbitral tribunals should adopt a transnational approach to preclusion rather than applying national preclusion laws.