Abstract:
Common law rules of the “conflict of laws”, or “private international law” as it is sometimes referred to, were developed and refined before transnational litigation became as common as it now is. International agreements have dealt with some of the issues arising from transnational litigation, but not all of them. Courts of the forum may encounter issues arising from possible or concluded litigation in other jurisdictions not only at the point of considering whether to permit the commencement of litigation in the forum, but also when deciding whether to permit points decided in a foreign jurisdiction to be raised or relied upon in the forum. Transnational estoppel (both cause of action estoppel and issue estoppel) has been well recognised since at least the House of Lords’ decision in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853. A foreign judgment may preclude a party from relitigating an issue or a cause of action in the courts of the forum. This lecture examines how transnational estoppel fits with other principles governing the recognition of foreign judgments and with principles about forum non conveniens and, then, invites consideration of when the courts of the forum may refuse to give preclusive effect to a foreign judgment and what principles might guide that refusal.