DISCLOSURE OF THIRD-PARTY FUNDING ARRANGEMENTS AND THE EXISTENCE OF THIRD-PARTY FUNDERS IN INTERNATIONAL INVESTMENT ARBITRATION
Third-party funding has been commonly used in International Investment Arbitration. Third-party funders increasingly usually finance the claimant who either (i) does not have sufficient funding to start legal proceedings, or (ii) adequately capitalized, but seek funding in order to minimize cash flow disruption and share risk during their arbitration proceedings. However, the notion of third-party funding gives rise to several issues; first, should funded parties be required to disclose their funding arrangements? Following the first research question, when does the funded party need to disclose the existence of a third-party funder? Then what legal measures can be taken to tackle the concern of transparency and disclosure in cases involving third-party funding? This research concentrates on the transparency and disclosure requirements, which is the central issue that influences further development and use of third-party funding arrangements in international arbitration. Analysis of relevant treaties, laws, guidelines, and case laws drives us to the conclusion that there exist measures and several drains the current international arbitration system that will serve a transparency system to control third-party funding. Hence, it would be appropriate for arbitration institute or investment treaties to take these tools into account in order to provide legal certainty for the disputing parties, arbitral tribunal, and ultimately, for the legal framework of third-party funding in investment arbitration..
Convention on the settlement of investment disputes between States and nationals of other States from 14 October 1966, United Nations Treaty Series, vol. 575, 159.
Convention on Transparency in Treaty-based Investor-State Arbitration from 10 December 2014, signed in New York, United Nations Treaty Series, I- 54749, p.1.
Convention for the Pacific Settlement of International Disputes, 1907, Hague I, UNTS 392.
ICSID. Case No. ARB/14/14, EuroGas Inc. and Belmont Resources Inc. v. Slovak Republic. Available at https://www.italaw.com/cases/3210, accessed on 29 July 2019.
ICSID. Case No. ARB/12/6, Muhammet Çap & Sehil Inşaat Endustri ve Ticaret Ltd. Sti. v. Turkmenistan. Available at: https://www.italaw.com/cases/2036, accessed on 29 July 2019.
Books and book chapters
Davies, Rowles. Third Party Litigation Funding. Oxford: Oxford University Press 2014.
Dozler, Rudolf and Christoph Schreuer. Principles of International Investment Law. Oxford: OUP, 2008.
Gaillard, Emmanuel and Yas Banifatemi, eds., Jurisdiction in Investment Treaty Arbitration. JurisNet & IAI, 2018.
Moses, L. M. The Principles and Practice of International Commercial Arbitration. Cambridge: Cambridge University Press, 2012.
Reinisch, August and Loretta Malintoppi. “Methods of Dispute Resolution” in The Oxford Handbook of International Investment Law, edited by Peter Muchlinski, Federico Ortino, and Christoph Schreuer. Oxford: OUP, 2008.
Sauvant, Karl P. Appeals Mechanisms in International Investment Disputes. Oxford: Oxford University Press, 2018.
Sornarajah, M. International Law on Foreign Investment. Cambridge: Cambridge University Press, 2010.
UNCTAD. Investor-state Dispute Settlement: UNCTAD Series on Issues in International Investment Agreements II. New York: United Nations, 2014.
UNCTAD. Scope and Definition. Geneva and New York: UNCTAD, 1999. Accessed on 21 June 2019. Available at https://unctad.org/en/Docs/psiteiitd11v2.en.pdf.
von Goeler, J. “Third-Party Funding in International Arbitration and its Impact on Procedure,” in International Arbitration Law Library, Volume 35. Kluwer Law International 2016.
Journals and periodicals
Antonietti, Aurélia. “The 2006 Amendments to the ICSID Rules and Regulations and the Additional Facility Rules.” ICSID Review - Foreign Investment Law Journal 2, Issue 2 (2006): 427–448.
de Brabandere, Eric and Julia Lepeltak. “Third-Party Funding in International Investment Arbitration.” ICSID Review – Foreign Investmment Law Journal 27, no. 2 (2012): 379-398.
de Morpurgo, M. “A Comparative Legal and Economic Approach to Third-Party Litigation Funding.” Cardozo Journal of International & Comparative Law 19 (2011): 343-412.
Flake, C. R. “In Domestic Arbitration: Champerty or Social Utility?” Dispute Resolution Journal 2 (2015): 109-123.
Franck, Susan D. “Foreign Direct Investment Treaty Arbitration, and the Rule of Law.” Global Business & Development Law Journal 19 (2007): 337-373.
Franck, Susan D. “Integrating Investment Treaty Conflict and Dispute System Design.” Minnesota Law Review 92 (2007): 161-229.
Frignati, Valentina “Ethical implications of third-party funding in international arbitration.” Arbitration International 32, no. 3 (2016): 505–522.
Goldsmith, Aren & Lorenzo Melchionda, “Third Party Funding in International Arbitration: Everything You Ever Wanted to Know (But Were Afraid to Ask),” International Business Law Journal 53 (2012): 53.
Honlet, Jean-Christophe “Recent Decision in Third-Party Funding in Investment Arbitration,” ICSID Review – Foreign Investment Law Journal 30, no. 3 (2015): 699-712.
Miles, Cameron A. “Corruption, Jurisdiction and Admissibility in International Investment Claims.” Journal of International Dispute Settlement 3, no. 2 (2012): 329-396.
Roberts, A. “Power and Persuasion in Investment Treaty Interpretation: The Dual Role of States” TDM 1 (2014).
Shannon, V. A. “Harmonizing Third-Party Litigation Funding Regulation,” Cardozo Law Review 36 (2015): 861-912.
Shaw, Gary J. “Third-party funding in investment arbitration: how non-disclosure can cause harm for the sake of profit,” Arbitration International 33, no. 1 (2017): 109-120.
Wong, Jarod. “Umbrella Clauses in Bilateral Investment Treaties: Of Breaches of Contract, Treaty Violations, and the Divide between Developing and Developed Countries in Foreign Investment Disputes,” George Mason Law Review 14 (2006): 137-179.
Ahurst. “Third Party Funding in International Arbitration.” Ahurst. Accessed on 27 July 2019, https://www.ashurst.com/en/news-and-insights/legal-updates/quickguide---third-party-funding-in-international-arbitration.
Blavi, Francisco. “It’s About Time to Regulate Third Party Funding.” Kluwer Arbitration Blog, 17 December 2015. Accessed 31 July 2019. http://arbitrationblog.kluwerarbitration.com/2015/12/17/its-about-time-to-regulate-third-party-funding/.
Burford Capital. “Deeply Flawed: A Perspective on the ICCA-Queen Mark Task Force on Third-Party Funding.” Burford Capital, accessed 30 July 2019. https://www.burfordcapital.com/blog/icca-queen-mary-task-force-report-flaws/
ICSID. “Database of ICSID Member States,” accessed on 28 July 2019. https://icsid.worldbank.org/en/Pages/about/Database-of-Member-States.aspx
ICSID. “ICSID Process Overview.” accessed 28 July 2019. https://icsid.worldbank.org/en/Pages/process/Overview.aspx.
ICSID. “The ICSID Caseloads Statistics.” ICSID Secretariat, accessed 2 August 2019. https://icsid.worldbank.org/en/Documents/resources/ICSID%20Web%20Stats%202019-1(English).pdf.
ICSID. “The ICSID Proposal Amendment of the ICSID Rules.” ICSID Secretariat. Accessed 1 August 2019. https://icsid.worldbank.org/en/Documents/III.%20Amendments_Vol_Two-English_AR.pdf.
ICSID. “Bilateral Investment Treaties Database.” ICSID. Accessed July 2019. https://icsid.worldbank.org/en/Pages/resources/Bilateral-Investment-Treaties-Database.aspx.
International Chamber of Commerce. “ICC International Court of Arbitration®.” ICC. Accessed on 28 July 2019, https://iccwbo.org/dispute-resolution-services/icc-international-court-arbitration/.
Krestin, Marc. “Third-Party Funding In International Arbitration: To Regulate Or Not To Regulate?” Kluwer Arbitration Blog, 12 December 2017. Accessed 31 July 2019. http://arbitrationblog.kluwerarbitration.com/2017/12/12/third-party-funding-international-arbitration-regulate-not-regulate/
Kryvoi, Yarik. “ICSID Arbitration Reform: Mapping Concerns of Users and How to Address Them.” Kluwer Arbitration Blog, 11 November 2018. Accessed 31 July 2019. http://arbitrationblog.kluwerarbitration.com/2018/11/11/icsid-arbitration-reform-mapping-concerns-of-users-and-how-to-address-them/.
Law, Chang. “ICSID to Require Disclosure of Third Party Funding in.” Chang Law. Accessed 1 August 2019, https://changarbitration.com/2018/08/icsid-to-require-disclosure-of-third-party-funding-in-amended-arbitration-rules/.
Lawinsider. “Third Party Funding Contract.” Lawinsider. Accessed 27 July 2019. https://www.lawinsider.com/dictionary/third-party-funding-contract.
PennJIL. “Denunciation of ICSID: Does it Really Mean no ICSID Arbitration?” Pennsylvania Journal of International Law, 4 April 2017, http://pennjil.com/denunciation-of-icsid-does-it-really-mean-no-icsid-arbitration/.
Permanent Court of Arbitration. “Contracting Parties.” Accessed 29 July 2019. https://pca-cpa.org/en/about/introduction/contracting-parties/.
Permanent Court of Arbitration. “PCA Case Reponsitory.” Accessed 29 July 2019. http://www.pcacases.com/web/allcases/.
Scherer, Maxi. “Out in the open? Third-party funding in arbitration.” ICLG, 26 July 2012. accessed 29 July 2019. https://iclg.com/cdr/arbitration-and-adr/out-in-the-open-third-party-funding-in-arbitration.
UNCITRAL. “About .” Accessed 29 July 2019, http://www.uncitral.org/uncitral/en/about_us.html.
UNCITRAL. “UNCITRAL Arbitration Rules.” Accessed 28 July 2019. http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/2010Arbitration_rules.html.
UNCTAD. “About Us.” Accessed 29 July 2019. http://unctad.org/en/Pages/aboutus.aspx.
UNCTAD. “UNCTAD Investment Dispute Settlement Navigator.” Accessed 28 July 2019. http://investmentpolicyhub.unctad.org/ISDS/FilterByApplicableIia
Dalhuisen, Jan Hendrik and Andrew T. Guzman, “The Applicable Law in Foreign Investment Disputes.” SSRN, Accessed 20 June 2020. http://dx.doi.org/10.2139/ssrn.2209503.
Fulbrook Capital Management, “Investing in International Arbitration Claims,” Burford Group’s. Seidel, 2011. Accessed 28 July 2019. http://www.fulbrookmanagement.com/publications/IL-Jan2011.pdf/.
Garcia., Frank J. et. al. “The Case Against Third-Party Funding in ISDS: Executive Summary.” Boston College Law School – PUC University of Chile, Working Group on Trade & Investment Law Reform, Third Party Funding Task Force (2018). Available at https://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2130&context=lsfp. Accessed on 29 July 2019.
ICCA. “Report of the ICCA – Queen Mary Task Force on Third Party Funding in International Arbitration.” April 2018. The ICCA Reports No. 4, 2018. Available at https://www.arbitration-icca.org/media/10/40280243154551/icca_reports_4_tpf_final_for_print_5_april.pdf. Accessed 29 July 2019.
Jures. “The new, new thing: A study of emerging market in third-party litigation funding.” 2010. Accessed 28 July 2019. http://www.jures.co.uk/whitepapers/QkLK6oHO_TPF%20report.pdf.
Polasek, Martina. “Overview of Proposed Amendments to the ICSID.” (Presented at UNCITRAL WG III, 31 October 2018). Accessed on 31 July 2019. https://uncitral.un.org/sites/uncitral.un.org/files/icsid_-_overview_of_rules_amendment_presentation.pdf.
UNCTAD. “Investor-State Dispute Settlement: Review of Developments in 2016.” IIA Issue Note¸ iss. 1 (May, 2017). Accessed 27 July 2019. Available at https://unctad.org/en/PublicationsLibrary/diaepcb2017d1_en.pdf.
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