One of many necessities for subject estoppel is id of subject. Nonetheless, the method of ‘refining down’ or ‘salami-slicing’[1] isn’t all the time clear. The argument that the problem is totally different as a result of the 2 courts would arrive at totally different conclusions on the governing regulation is more and more being utilised as a litigation technique. If the primary court docket utilized its selection of regulation guidelines to find out that the governing regulation of the declare is Utopian regulation, would a difficulty estoppel come up over this choice within the second court docket if below the second court docket’s selection of regulation guidelines, Ruritanian regulation is the governing regulation? The reply relies on whether or not the ‘slice’ is thick or skinny. Is the related subject ‘What regulation governs the dispute or subject?’ or ‘What regulation is recognized by our (discussion board) selection of regulation guidelines to manipulate the dispute or subject?’
For instance, there may be appreciable distinction in tort selection of regulation guidelines. Some jurisdictions apply the double actionability rule.[2] Most jurisdictions undertake the lex loci deliciti or lex loci damni rule,[3] with variations on how the related locus is recognized and whether or not a versatile exception in favour of the regulation of nearer connection is current. Occasion autonomy can be permitted in sure jurisdictions.[4] Thus, in tort claims, the problem might be framed in several methods: eg, ‘what’s/are the regulation(s) governing the tort?’, ‘what’s the lex loci delicti?’, ‘the place in substance did the tort come up?’, or ‘the place was direct injury suffered’? It is going to be apparent that solely the primary, broad, framing of the problem, or, in different phrases, a ‘thick’ slice, will end in there being id of subject. In essence, the query is: does a distinction in selection of regulation guidelines matter for subject estoppel functions?
The Hong Kong Courtroom of Last Enchantment in First Laser v Fujian Enterprises (Holdings) Co Ltd[5] took the view that a difficulty estoppel can come up over a international choice on the governing regulation of the dispute. Nonetheless, there’s a suggestion within the Singaporean Courtroom of Enchantment choice of Gonzola Gil White v Oro Negro Drilling Pte Ltd {that a} distinction within the two legal guidelines is related.[6] Arguably, the Courtroom’s views had been restricted to the precise scenario the place the Singaporean court docket because the second court docket would have arrived at Singaporean regulation after software of Singaporean selection of regulation guidelines. It is because the Singaporean court docket views it as a part of its constitutional obligations to safeguard the appliance of Singaporean regulation.[7] If that is right, it’s uncertain that the identical strategy can be adopted by a minimum of the English courts, as English courts are ready accord preclusive impact to a judgment of a international court docket even the place that international court docket had made an error on English regulation in its judgment.[8]
The English Courtroom of Enchantment in Yukos Capital Sarl v OJSC Rosneft Oil Co (No 2)[9] held that no subject estoppel will come up over a query involving discussion board worldwide public coverage. That is totally explicable as every nation’s public coverage differs. It has additionally been recommended that no estoppel arises over a difficulty which is topic to a discussion board overriding obligatory rule.[10] Selections on delicate issues which give rise to comity concerns must also be excluded.[11]
The query is whether or not choices on the governing regulation benefit the identical remedy. It’s argued that for many non-public regulation claims, a international choice on the governing regulation of the dispute or on a selected subject within the declare is usually succesful to giving rise to a difficulty estoppel. A opposite conclusion would disregard the insurance policies underlying estoppel and permit discussion board purchasing. Nonetheless, some selection of regulation classes – eg, selection of regulation for client contracts or employment contracts, or for environmental torts – are underpinned by public coverage concerns. For these particular selection of regulation classes, it’s recommended that the discussion board court docket retains the prerogative to resolve on the problem of the governing regulation for itself, regardless of a previous international choice on the identical level. In different phrases, a slender ‘slice’ is acceptable.
The identical broad-narrow query arises in different contexts. It may come up within the jurisdictional context: would the primary court docket’s choice on the applicability of the private equities exception for the Mocambique rule give rise to an estoppel in subsequent proceedings in a special court docket? What a few choice on which court docket is discussion board (non) conveniens? How about arbitration, the place the stability of competing concerns could lie otherwise in comparison with worldwide litigation? For instance, ought to a difficulty estoppel come up over a international choice on subject-matter arbitrability?[12] Is it related if the primary court docket determined this subject on the pre-award stage or on the post-award stage pursuant to proceedings to implement an arbitral award? Does it matter if the primary court docket is the court docket of the seat?[13]
These, and different questions, are thought of within the open entry article Adeline Chong, ‘Salami-Slicing’ and Situation Estoppel: International Selections on the Governing Regulation’, Worldwide and Comparative Regulation Quarterly (FirstView).
[1] Desert Solar Mortgage v Hill [1996] 2 All ER 847, 859 (Evans LJ).
[2] Eg, Singapore: Rickshaw Investments Ltd v Nicolai Baron von Uexkull [2007] 1 SLR(R) 377 (Singapore
CA); Hong Kong: Xiamen Xinjingdi Group Co Ltd v Eton Properties Ltd [2020] 6 HKC 451; Japan: Act on Basic Guidelines for Utility of Legal guidelines (Act No 78 of 2006), artwork 22.
[3] Eg, Rome II Reg, artwork 4(1).
[4] Eg Rome II Reg, artwork 14; Swiss Federal Code on Personal Worldwide Regulation, artwork 132.
[5] [2013] 2 HKC 459 (HKCFA).
[6] [2024] 1 SLR 307 [87] (Singapore CA).
[7] Ibid [78]-[79].
[8] Good Challenger Navegante SA v MetalExportImport SA, (The “Good Challenger”) [2003] EWCA Civ 1668, [54]–[55]. See additionally Godard v Gray (1870) LR 6 QB 139.
[9] [2012] EWCA Civ 855.
[10] Merck Sharp & Dohme Corp v Merck KGaA [2021] 1 SLR 1102 [55] (Singapore CA).
[11] See the reference to ‘issues of excessive coverage’ in Yukos [2012] EWCA Civ 855 [151].
[12] Diag Human SE v Czech Republic [2014] EWHC 1639 (Comm) [58].
[13] See The Republic of India v Deutsche Telekom AG [2024] 1 SLR 56 (Singapore CA).
