by Paula Arias
The world nowadays is more connected than it was in the past. People every day get into several relationships from different places in the world. People more often than before create obligation and rights for the law to protect. Meaning that the legal barriers and limits need to be softened to protect the people, who are the last and most important interest of the governments and States.
This phenomenon is causing legal problems for the countries to protect those relationships, to enforce those obligations, and to protect those rights. Each country has its own legal order, recognizes its own legal tradition, and it has its own institution regarding rights, obligations and relationships of the people. The problem arises, sometimes, when the parties in an international context seek the protection of the law of a specific State of those rights, obligations, and relationships derived from the international relationship at which they are involved. It also arises because those rights, obligations and relationships have origin and meaning in the law of another country, no in the country the protection is pretended.
The purpose of this analysis is to present that international commercial arbitration is one of those situations that creates relationships, obligations and rights in one country, under one sovereign legal system, that the parties seek to protect and enforce in another country with another sovereign legal order.
Another purpose is to present that even though the common law tradition recognizes different doctrines regarding the conclusive and preclusive effect of adjudicative decisions in comparison with the civil law tradition due to international commercial arbitration and the international public and private law, it is possible in certain situations that a Country of the civil law system has to apply doctrines non recognized by it but that has been recognized in a Country of the common law system, where the adjudicative decision has been relied upon.
Also, it is the purpose of this analysis to present that the legal traditions, the legal orders can be different in certain aspects but that the principles that are the basis of any legal tradition can be similar and can pursue the same goals, causing the differences to disappear.
In order to comply with the objectives of the present analysis, first, there is going to be explained the differences between the common law and the civil traditions regarding the binding, conclusive and preclusive effect of adjudicative decisions. Second, there is going to be explained the similarities of regarding res judicata. Third, there is going to be analyzed the doctrine of issue preclusion or collateral estoppel, that has been recognized by the common law system, but that has not been recognized, neither denied, by the civil law tradition. Fourth, there is going to be explained res judicata from the Colombian legal system, and international arbitration as part of the judicial system and as exercise of the right to access the judiciary. Finally, it is going to be analyzed an inquiry regarding the possibility under Colombian law to recognize collateral estoppel to an international award, even though it has not been recognized domestically.
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