Publication Type

Journal Article

Version

publishedVersion

Publication Date

1-2026

Abstract

Whether an issue estoppel arises over foreign decisions on the governing law of the claim has not been directly considered by an English court, but decisions in other jurisdictions show that this question is increasingly being raised in litigation. Is there identity of issue if the two courts apply different choice of law rules? The answer turns on whether a broad or narrow framing of the issue is adopted. It is suggested that, absent an issue which is subject to forum international public policy, forum overriding mandatory rules or which is one that the forum court retains the prerogative to determine for itself, a broad framing ought to be adopted. Thus, in principle, an issue estoppel should arise over the identity of the governing law of the claim. However, issue estoppel should not operate where the choice of law category involved is underpinned by public policy considerations. The consideration of the specific issue of the governing law of the claim also feeds into broader questions on the applicability of issue estoppel whenever the two courts would apply different laws or frameworks to decide the issue. In general, whether a plea of issue estoppel ought to succeed depends on balancing the principles underlying res judicata against the considerations arising in each specific context.

Keywords

private international law, issue estoppel, foreign judgments, governing law, choice of law, Rome I Regulation, Rome II Regulation

Discipline

International Law | Law

Research Areas

Dispute Resolution; Private Law

Publication

International and Comparative Law Quarterly

Volume

74

Issue

4

First Page

875

Last Page

903

ISSN

0020-5893

Identifier

10.1017/S0020589325101346

Publisher

Cambridge University Press

Copyright Owner and License

Authors

Additional URL

https://doi.org/10.1017/S0020589325101346

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