N. Andrews/Ε. Αμπατζής/Ε. Ασημακοπούλου..., Issues of Estoppel and Res Judicata in Ango-American and Greek Law, 2014
In the last years, civil procedural law has been in the course of constant change.
Such considerations have in principle incited us to organize international workshops on comparative analysis of Greek and foreign civil procedural laws in a systematic way at the Aristotle University of Thessaloniki. The contributions to such workshops have helped highlighting the similarities and differences between the compared jurisdictions and appreciating institutions functioning effectively. The benefits of those workshops would certainly be multiple, if their minutes were published in a series. Researchers, practicing lawyers and students will, thus, have the opportunity to refer to the relevant papers, in order to obtain an overview of different institutions and their functioning in various jurisdictions and keep the channels of communication with the international community open.
The first conference, which also coincides with the beginning of the series, took place in May 2012 and dealt with “Issues of Estoppel and Res judicata in Anglo-American and Greek Law”.
Our aim is to turn this endeavour into an incentive for a sustained and in-depth comparative research between civil procedural laws of various states and the Greek one, which constitutes, by the way, a law with a long history and rich theoretical and jurisprudential output. Through such a comparison, legal thought should get grafted with innovative concepts, escape from the well known and well established and develop a new dynamic potential. The more widespread and systematic the exchange of information and views at international level is, the more national systems will be revitalized and will work better for the benefit of their citizens. Our hope and prayer is that this series will contribute to a creative comparative research.
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VIISeries Editors’ ForewOrd.
IXPREFACE.
XITABLE OF CONTENTS.
XVLIST OF ABBREVIATIONS.
PROLOGUE: The varieties of estoppel (by Prof. G. Diamantopoulos)
1Ι. Introduction: venire contra factum proprium and estoppel. Two legal doctrines, one idea
5II. Estoppel: the varieties
71. Estoppel by record (or estoppel per rem judicatam)
102. Estoppel by deed
113. Estoppel by conduct (or estoppel in pais)
14III. Addendum
Res judicata and finality: Estoppel in the context of judicial decisions and arbitration awards (by Prof. N. Andrews)
17Introduction
18I. Recognition of finality as a hallowed procedural principle
21II. The link between finality and effectiveness in court proceedings
22III. Cause of action estoppel following a judicial decision
26IV. Cause of action estoppel and consent judgments
30V. Issue estoppel
39VI. Preclusion of points that should have been raised in earlier proceedings: The rule in Henderson v. Henderson (1843)
44VII. A and B’s action succeeded by an action between A and C: The outer rim of the rule in Henderson v. Henderson (1843)
45VIII. Res judicata in the context of multi-party litigation
46IX. Other aspects of finality
48X. Finality and res judicata in the context of arbitral awards: the general regime. English practice
54XI. Disputed arbitration clauses: finality issues arising from the European Court of Justice’s prohibition upon anti-suit injunctions
62XII. Concluding summary
Principles of preclusion and res judicata: Reflections from the perspectives of Greek and American law (by Prof. K. Makridou)
67I. Introduction
68II. Objective and justification of estoppel per rem judicatam
71III. A valid judgment is entitled to res judicata effect
73IV. The requirement of a final judgment
84V. Adjudication on the merits of an action
89VI. Claim preclusion - Issue preclusion
97VII. Application of issue preclusion to default judgments
103VIII. Application of claim and issue preclusion to consent judgments
Estoppel in english contract law (by Dr. M.-G. Dracos)
111I. Introduction
112II. The key idea behind estoppels
114III. The functions of estoppels
115IV. Estoppel and its application to factual propositions
123V. Assumptions of law
126VI. Rights in Property
128VII. Restraining the unconscionable exercise of rights
131VIII. Conclusion
Judicial estoppel: Contradictory procedural behaviour in Greek and American law (by Prof. G. Diamantopoulos)
135I. Introduction
137II. Forms of contradictory procedural behavior: genuine and nothus
143III. Range of prohibition
1451. Assertions of the parties
1502. Applications (requests) of the parties
155IV. Field of genuine contradictory procedural behavior
1551. Contradictory procedural behavior within the same trial
1592. Contradictory procedural behavior in successive proceedings
169V. Legal consequences of inconsistent positions
1. Procedural sanctions
171A. Inadmissibility of inconsistent factual allegations
173B. Separation of inconsistent requests
1752. Ways of avoiding sanctions
177VI. Procedural treatment of inconsistent positions
1771. Spontaneous consideration of the prohibition
1782. Time of submission of the exceptio venire contra factum proprium and cassation review of its prerequisites
179VII. Conclusions
COMMENTS
181A. The Collateral Estoppel Effect of Criminal Convictions in Subsequent Civil Trials. A Comparative Glance at the Different Approaches in American and in Greek Law (by E. Abatzis)
193B. Res judicata effect of foreign judgements in cases of transnational insolvency (Reg. 1346/2000) (by E. Asimakopoulou)
201C. Abuse of property rights in Greek Law compared with the doctrine of estoppel in English-American Law (by A. Papaspyropoulos)
211D. Issues of Estoppel and Res judicata on class action judgments in Greek and American law (by A. Plevri)
221E. Recovery for future injury and the rule against splitting causes of action (by A. Vezyrtzi)
227Conclusions (by Prof. K. Makridou).
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