‘Salami-Slicing’ and Issue Estoppel: Foreign Decisions on the Governing Law

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.