Aviator Llc & Ors v Spribe Oü

Whether a foreign judgment precludes re-litigation by issue estoppel is governed by the lex fori. It concerns the receiving court’s treatment of an earlier judgment and the conduct of adjudication, rather than the parties’ underlying substantive rights and obligations. The Rome II Regulation does not govern that question merely because the prior judgment may affect liability on a non-contractual claim. Article 15 concerns substantive liability, not the preclusive effect of a judgment. Alternatively, if the issue fell within the Regulation’s scope, it would be excluded as evidence and procedure by Article 1(3).

Aviator Llc & Ors v Spribe Oü concerned claims for copyright infringement arising from rival online crash games. Aviator alleged infringement in the United Kingdom, Gibraltar and other Berne Convention countries. It relied on rulings in Georgian proceedings as creating issue estoppels concerning copyright subsistence, ownership and copying.

The High Court held that the law applicable to each copyright claim, being the lex loci protectionis under Article 8(1) of the Rome II Regulation, governed the availability and effect of issue estoppel: [2026] EWHC 1216 (Ch). Aviator appealed. The central issue was whether the Regulation displaced the ordinary English conflicts rule that the effect of a foreign judgment is governed by the lex fori.

1. Appeal allowed. The court rejected the conclusion below that the law applicable to each foreign copyright claim governed Aviator’s plea of issue estoppel.

2. Issue estoppel is a general doctrine of res judicata. It prevents re-litigation of an issue necessarily decided by a competent court, including a recognised foreign court. Although English domestic law describes strict res judicata as substantive, the relevant conflicts issue was not the substantive content of copyright liability. It was the effect of a prior foreign judgment in proceedings before the English court.

3. That issue belongs to the law of the receiving court, the lex fori. It is an aspect of recognition and enforcement and of the adjudicative process. The same law should determine the preclusive effect of a judgment irrespective of the cause of action in which the issue is later raised. The Court of Justice’s treatment of res judicata as a matter of domestic procedural rules supported that characterisation.

4. The Rome II Regulation did not alter that result. Article 15 identifies matters of substantive non-contractual liability. A rule may affect whether liability is established without becoming part of the law governing that liability. The preclusive effect of an earlier judgment regulates adjudication of rights, not the rights and obligations themselves. The Regulation was not intended to produce identical litigation outcomes in all courts.

5. The scheme of EU private-international-law instruments reinforced that conclusion. Recognition and enforcement of judgments are addressed, where harmonised, by the Brussels I regime; matters left open are governed by the receiving state’s law. Alternatively, if the issue fell within Rome II, it was excluded by Article 1(3) as evidence and procedure rather than governed by Article 15. It was therefore unnecessary to consider Articles 16 and 26.

• Court of Appeal (Civil Division): allowed Aviator’s appeal and held that English law as the lex fori governs the asserted issue estoppels: [2026] EWCA Civ 1224 .
• High Court of Justice, Intellectual Property List (ChD): Michael Tappin KC, sitting as a Deputy High Court Judge, held that the law applicable to each copyright claim governed the issue-estoppel plea: [2026] EWHC 1216 (Ch) .