Res means “subject matter,” and judicata means “adjudged.” Res judicata is a Latin term that the translation in English means “matter decided.” The res judicata includes two concepts: “claim preclusion” and “issue preclusion.” In the “claim preclusion,” is prohibited the re-litigation of issues of law that have already been resolved by the judge as part of a past case. Still, for the “issue preclusion,” the parties litigate each other again after the final judgment based on merits has reached in civil litigation. It is a legal principle that prevents a party from relitigating any claim or defense already prosecuted in the same Court or a different Court. The case has a final judgment, and there is no longer subject to appeal, but it does not mean the appeal process’s restriction. In the Common law system, this principle can be used by the judge and the defendant. In UAE legislation, the res judicata is recognized in article 49 of the Federal Law Number 10 of 1992 (the Federal Evidence law), and the Court must decide the incontestable character of the judgment, it means that the subject declares res judicata, could not be brought before the Court again. The Res Judicata is considered in UAE law as a principle of public order. Additionally, this principle is recognized in article 92 of Federal Law Number 11 of 1992. The primary object of the res judicata is to guarantee the conclusion of decisions and to keep the rights of complainants from multiple cases on the same subject. Nevertheless, the application of “matter decided” is limited by three (3) conditions laid down by the doctrine (Professor Dr. Abdul Razak Sanhouri):
1. The second case where the principle of res judicata is used shall be the same as the first proceeding in subject matter, parties, and action cause.
2. The matter in question, which is said to be banded by the res judicata in the second case, was studied and judged upon, on merit, the first time round.
3. The judgment of the first proceeding is finished.
It is necessary to consider two cases and compare if the subject matter, parties, and the cause of action are the same to lay down the Res Judicata. The following cases show the non-application of Res judicata in UAE Courts and their considerations:
I. The first case is about requesting a cheque’s return in partial implementation of a contract between the parties to incorporate a company. In the second case, it was the same prerogative, but there was a loan agreement between the parties. It means there were different causes of action; because of that, the Federal Court of Cassation in 2001 said that the appeal to res judicata was not possible.
II. The first case was a claim for compensation for a breach of the Labour Law prohibiting an employee’s firing for non-valid reasons. In the second case, the employee would remain employed as an assurance from an employer, so he/she does not need to accept an alternative offer. In both cases, the Federal Court of Cassation in 2001 pronounced that both cases’ subject matter and causes of action were different. Therefore, the principle of res judicata does not apply. The first case was a claim for compensation for material and immaterial damages in defective computer devices’ acquisitions. In the second case the claim was the return of the devices’ price that the buyer had rejected and had returned to the supplier. According to the Dubai Court of Cassation in 2004, it was impossible to apply the res judicata.
According to article 52 of the Federal Law Number 6 of 2018 (The new UAE Arbitration Law), an arbitral award must constitute res judicata. For the arbitration awards applies the principle of Res Judicata, for example, a judgment dated August 21, 2016, for the Commercial Appeal 199 of 2014, the claimant was not fully paid by the respondent, so the claimant started al arbitration proceeding in the Dubai International Arbitration Centre (DIAC) to obtain the payment of the debt. The arbitrator of the DIAC issued an award in the claimant’s favor. However, the respondent applied to the same Court to obtain the award’s annulment and have an arbitrator by the Court because the DIAC did not have authority to appoint an arbitrator. But the Court of the first instance declared that it was not possible to establish a new arbitrator. The respondent appealed the Court of first instance decision in the Court of Appeal, and the Court of Cassation and the Court of Cassation defended both decisions of the lower courts. The Court confirmed the arbitration awards as res judicata. The immediately status of res judicata in arbitral awards, we can find it in cases such as: