By: Soumya Jha

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INTRODUCTION

Despite being one of the most popular dispute resolution mechanisms in today’s time, international arbitration continues to be an expensive process.[1] Even though, the arbitration fraternity is on a constant lookout for ways to reduce cost and time in arbitration proceedings,[2] these efforts to procedural reforms have their own limitations. This becomes impossible to ignore in mainly two situations: firstly, when parties intend to initiate arbitration proceeding but can’t afford it; and secondly, when the parties are able to pay for the proceedings but do not wish to initiate arbitration proceeding. In either of the cases, there exists a high possibility of stifling of genuine claims, which becomes a matter of serious concern from the perspective of the parties’. One of the ways to deal with this is by procuring finances from external sources for funding of arbitration-related expenses, also known as ‘third party funding’. In fact, there is a wide array of external financing options available for the parties involved in legal disputes, such as success-based legal fee arrangements, legal expenses insurance, legal aid, sale and assignment of claims, loans provided by banks or other lenders, corporate finance instruments, and parent company financing.[3]

Third Party Funding is a financing method in which an entity that is not a party to a particular dispute fund another party’s legal fees or pays an order, award or judgement rendered against that party, or both.[4] The concept of third-party funding is not a new concept and has been prevalent in many jurisdictions, mostly in the form of domestic litigation funding. However, over recent years, with the influx of institutional providers of capital for dispute resolution, a gradual acceptance of this concept has been observed in international arbitration as well.[5]

Even though, various jurisdictions have adopted different approaches towards the treatment and extent of third-party funding in international arbitration, a gradual shift in the approach towards the acceptance of this concept can be seen. Furthermore, third-party funding can broadly be classified into consumer funding, relating to small scale individual claims such as a personal injury claim and commercial funding, encompassing, inter alia, international arbitration.[6] Moreover, as third-party funding and litigation funding are sometimes used interchangeably, for the purposes of this essay, it is pertinent to understand litigation funding and distinguish it from third-party funding. The term ‘litigation funding’  is used to describe the provision of capital for dispute resolution, including international arbitration, by commercial funding institutions disposing of funds dedicated for investing in claims and defences (‘litigation funders’), pursuant to an agreement between funder and funded party (‘litigation funding agreement’).[7] Therefore, litigation funding is to be understood as a subset of third-party funding in the context of this essay.

Nonetheless, the adjudication of third-party funding in the context of international arbitration becomes a little tricky as it raises numerous internal procedural and substantive issue clashes. This essay evaluates the potential benefits and risks associated with the intermingling of third-party funding in international arbitration. Further, this essay attempts to scrutinize the commercial form of litigation funding and its plausible procedural infirmities in international arbitration such as issues related to jurisdiction, disclosure and conflict of interest, impartiality and independence of the arbitrators and the cost issues. Lastly, this essay scrutinizes the concept of third-party funding strictly within the ambit of international commercial arbitration, consciously leaving out international investment arbitration from its area of assessment.

ARBITRATION SPECIFIC ISSUES REGARDING THIRD PARTY FUNDING

Third Party Funding and Jurisdiction of the Tribunal

The extent of the authority and the power of an arbitral tribunal are determined by its jurisdiction. A tribunal is not considered competent to try any case for which it has no jurisdiction, and the award given in such a case is devoid of any legal force or recognition. In international commercial arbitration, the tribunal’s jurisdiction is determined on the basis of an arbitration agreement. Since third-party funders are not signatory to the arbitration agreement, the issue that needs to be addressed is whether a third-party funder, despite being a non-signatory, be brought within the ambit of such an arbitration agreement. But before moving further, a fundamental evidentiary question that also needs to be addressed is whether the funded party is required to disclose the existence and/or terms of a funding agreement to the tribunal and the opponent. A funded party has no general duty to disclose the presence of a third-party funder or the existence of a third-party funding agreement in international arbitration proceedings.[8] However, the disclosure of funding-related facts to the tribunal and the opponent may be needed so that an arbitral tribunal can determine whether it has jurisdiction. In this regard, a third-party funding agreement should be treated like any other piece of documentary evidence not in possession of the opponent but whose production may be required to assess jurisdictional issues. This means that the opponent needs to satisfy the tests of specificity, relevance, and materiality governing the production of information adverse to the funded party’s interests, and overcome potential privilege defences in the particular case. On this point, this section deals with whether, in what cases and to what extent can a third-party funder, who is a non-signatory to the arbitration agreement, be subjected to the jurisdiction of the tribunal.

Practically, a litigation funder can never be one of the consenting parties to the arbitration agreement. They are never an active participant in the conclusion of the arbitration agreement and neither are they mentioned in or referred to in the arbitration agreement. Consequently, it may seem correct to believe that the funder can never be brought under the jurisdiction of the respective tribunal as the functioning and enforceability of an arbitration agreement works on a strict consent basis. Furthermore, only consenting parties can seek to invoke as well as be subjected to the jurisdiction of the tribunal arising out of such an arbitration agreement[9]. Having said that, the primary and the sole motive of a funder in funding an arbitration proceeding, as discussed above, is purely economic and not legal[10]. The contractual relationship between the funder and the party to the arbitration is a separate contract and that, in no case can be equated with the consent given by the party through the arbitration agreement. Even though this dichotomy of the consensual relationship of the arbitration agreement and the purely contractual relationship of the litigation funding agreement seems apparent, it is far from being settled. The tribunals have every now and then, brought the third party funder within scope of the arbitration agreement and subjected the funder to its jurisdiction by giving due consideration to certain factors, such as, the extent of control of the funder over the party in dispute, the degree of interest of the funder in the outcome of the case, so on and so forth.[11] The aim here is to establish the procedural status of third-party funders in relation to the traditionally bipolar contractual paradigm of arbitration, without neglecting the requirement of consent.[12] Therefore, the determination of the status of a third party funder in an arbitration proceeding depends on the facts and circumstances of the case and well as the extent of bearing that the funding agreement has on the claims of the party to the dispute.

By the Conduct of the Parties: Implied Consent

In the event, the funding agreement transfers rights under the main contract to the funder, legal mechanisms that might result in the funder substituting the funded party as a party to the arbitration agreement become relevant. The following subsections address two mechanisms relevant in the funding context: assignment and subrogation.

The assignment is widely accepted in most jurisdictions that arbitration agreements are assignable and are generally transferred together with the underlying contract (principle of automatic transfer).[13] This is notably the case in civil law jurisdictions under the general statutory provisions for assignment, for example in German,[14] France,[15] and Switzerland,[16] as well as in the United Kingdom[17] and the United States[18]. The arguably prevailing view would like to determine the validity and effects of the assignment pursuant to national law determined by conflicts of laws analysis, applying the lex loci arbitri, lex causae, or lex compromissi, or a combination of those (principle of validation).[19] Others prefer to evaluate the assignment of the arbitration agreement according to transnational substantive rules.[20]

Subrogation is a legal mechanism known in many jurisdictions whereby one party is subrogated to the contractual rights of another party by operation of a statutory or contractual provision.[21] It is a common feature of liability insurance: the insurer reimburses the insured and subsequently brings an arbitration claim against the debtor.  As is the case with the assignment, the principle of automatic transfer of the arbitration agreement applies.[22] Consequently, if subrogation is valid under applicable law, the insurer is entitled to invoke and bound by the arbitration agreement, replacing the insured party in the proceedings. While this will usually not cause specific issues, it should be noted that, when arbitration involves insurers on either side, the procedural position of these funders will be entirely different depending on whether subrogation is involved or not. If subrogation is involved, the funder replaces the funded party and therewith ceases to be a third-party funder. If subrogation is not involved, the funder remains a non-party to the arbitration.

By way of Procedural Mechanism

Moreover, various institutional rules provide for joinder of the parties to the arbitration proceedings and lay down the procedural requirement for doing so. This situation generally arises when the non-funded party reasonably demands the third party funder to be a party to the arbitration proceedings along with the funded party. To this end, the non-funded party would need to file a procedural motion for joinder of the third-party funder. This is usually permitted by the Tribunal to prevent prejudice to one of the parties. Joinder seems like a procedural requirement which is a function of only parties to the arbitration agreement, but various arbitration rules have shown the flexibility in the application of the same. Therefore, a joinder application could be filed by a third party as well as without the consent of all the consenting parties to the arbitration agreement.

Third Party Funding: Conflict of Interest and Disclosures

One of the most obvious and fundamental values of a system of justice is the capability of the deciding body to consider the contested positions and ultimately make a decision without favouritism or bias towards any of the disputing parties.[23] In other words, it is of utmost importance to have the decision maker behind the ‘veil of ignorance’ while delivering justice.[24] Even a slight yet reasonable hint of biases in the minds of the parties or others must be eliminated in order to ensure the proper delivery of justice. Likewise, the arbitration proceeding, independence and impartiality of the tribunal form the most fundamental principles. Having discussed the nature of third-party funding, especially the institutional funders who exist to provide capital to the high-value disputes and parties, it is important to acknowledge that it may create situations where impartiality and independence of the arbitrators need to be put under strict scrutiny. To explain with an illustration, assume, that litigation funder F is funding the claimant in arbitration A1, where X is the claimant appointed an arbitrator. Assume further that F funds another claimant in the unrelated arbitration A2, where X acts as counsel to this claimant. Should X be able to serve as an arbitrator in A1?

The UNCITRAL Arbitration Rules and the UNCITRAL Model Law, since their first versions, established the duty of impartiality and independence of all arbitrators, regardless of the method followed for their appointment. They did so in an indirect two-fold way. On the one hand, they provided for the right of any disputing party to challenge an arbitrator ‘if circumstances exist that give rise to justifiable doubts as to the arbitrator’s impartiality or independence’.[25] On the other hand, they protected the parties’ right of challenge by imposing on every arbitrator a continuing duty of disclosing to the parties ‘any circumstances likely to give rise to justifiable doubts as to his impartiality or independence’.[26]  Ever since most arbitration rules[27] and national laws[28]  have adopted this formula (impartiality and independence through a right to challenge and duty of disclosure) with equal or similar wordings. Most rules and some statutes have also included a direct provision for such duty.[29] Furthermore, the impartiality and independence of both party-appointed and non-party appointed arbitrators are also required by most guidelines concerning arbitrator conduct.[30] The parties have been able to request for the replacement of recusal of arbitrators in cases of a conflict of interest issue due to third-party funding. Given the confidential nature of the vast majority of arbitral proceedings, however, public awareness of such instances are few and far between. In fact, much will turn on the definition of “parties to the proceedings,” from whom the arbitrators have to be independent. It is generally accepted that this extends to companies that are part of the same group. Could it also be said to extend to entities that have a direct financial interest in the outcome of the dispute in that they will financially benefit from it?[31]  In effect, should we attempt to pierce the funding veil?

 A prerequisite for avoiding such conflicts of interest is disclosure of the relevant funding agreement.[32] In the absence of disclosure, an arbitrator may not be aware that one of the parties before him is funded by a third-party funder with whom he or his firm has a relationship. In the light of the fact that many third-party funders are now publicly-traded companies, it is also possible that an arbitrator could have a material holding in a funder involved in the proceedings before him. Several sets of arbitral rules impose duties on the arbitrator to disclose circumstances which may give rise to justifiable doubts about their independence, and a failure to do so may result in a breach of such rules. Furthermore, certain jurisdictions impose additional rules requiring the independence of arbitrators — the French civil procedure code requires an arbitrator to disclose all circumstances that could potentially affect his or her independence or impartiality, prior to accepting the appointment.[33]  As a consequence, any conflict of interest that arises as a result of the involvement of third-party funding may place the independence and impartiality of an arbitrator in question, potentially leading to his or her recusal and prejudicing the recognition or enforceability of the tribunal’s determination.^[34]

Nevertheless, the need for disclosure could arguably constitute an infringement of the freedom to, and confidentiality of, the contract between private parties. Even if we presume disclosure is necessary as a first step towards eliminating conflicts of interest, serious questions arise as to the threshold, timing, and extent thereof.

Given the wide variety of third-party funders and arrangements, it is unclear what a potential disclosure obligation should encompass. The limits of the obligation could be drawn in a number of places, from the nature and identity of the funder to the quantum or subject matter of the claim. For example, it could be argued that disclosure should not be required in relation to insurance policies or contingency fee arrangements but instead be limited to third-party funding of large commercial claims.[35] However, it is difficult to see why other modes of third-party funding should be exempt from disclosure, as it cannot be assumed that no insurance policy or conditional fee arrangement will ever give rise to a conflict of interest.[36] Here as well, the imprecision inherent in the definition of “third-party funding” agreements feed the controversy on how best to answer the challenges posed by this practice. This is possibly one of the reasons why the ICCA-Queen Mary Task Force on Third-Party Funding has set as its first task the ascertainment of a definition of “third-party funding”.[37]

The timing of any disclosure must also be taken into consideration, as it may have an effect on the ability of the tribunal to deal with any potential conflicts that may arise. It would seem logical to require disclosure prior to the confirmation of an arbitral tribunal, so that any potential conflicts may be resolved at that point in time. However, parties may enter into funding arrangements at any time in the life of a claim. On the one hand, it can be argued that disclosure should be required as soon as such arrangements are entered into; on the other hand, it could be argued that disclosure at a late stage in the claim risks uprooting the tribunal and significantly delaying determination, especially if it necessitates a change in the composition of the tribunal.[38] A further risk arises as the engagement of third-party funding could be open to abuse as a delay and disruption tactic by the funded party.

As a minimum, any regulation would necessarily insist on a duty to disclose not only the existence of third-party funding but also the identity of the third-party funder, as this is the crucial information that may illuminate potential conflicts of interest. It could also be argued that disclosure should extend to certain other details of the arrangement, such as the quantum, the potential return for the funder, and the level of control afforded to the funder over the conduct of the claim, as all of these facts affect the likelihood or severity of a conflict of interest. Furthermore, it is unclear precisely to whom third-party funding should be disclosed, namely the arbitral tribunal or all participants in the arbitration. However, considerations of procedural fairness would indicate that disclosure should also be made to the opposing party, and the opportunity afforded to that opposing party to present its case on any questions arising from such disclosure.[39]

Further questions arise as to the implementation of disclosure obligations. The two most promising methods are the imposition of a duty on funded parties to disclose the existence and certain details of their funding arrangements, or alternatively through imposing a duty on arbitral tribunals to investigate the involvement of third-party funding[40]. The former may be preferable to the latter, as a duty to investigate would require a complementary duty on third-party funders to comply and would likely result in a greater amount of costs and could delay the timetable significantly.[41] However, a duty to disclose faces similar issues of implementation as the ability to enforce such a duty and sanction of non-compliance is predicated on the knowledge of the existence of third-party funding arrangement. In any event, there is a pronounced lack of adequate sanction mechanisms, and it is unclear what action could be taken to ensure that parties to disclose the existence, and potentially certain details, of their third-party funding arrangement. In light of the potential repercussions of disclosure upon a claim, the disclosure is unlikely to be voluntarily made in the absence of express disclosure requirements.

THIRD PARTY FUNDING AND ISSUES RELATED TO COSTS

The increasing use of third-party funding has also given rise to a number of concerns concerning the impact of such funding on costs, which can broadly be grouped into the categories further detailed below.

Quantum

It could be argued that proceedings involving third-party funding are likely to be more expensive than if the same proceedings had not been so funded, as parties with greater financial resources obtain access to a greater range of experts and witnesses, and a wider range of legal representation, all of which increases legal fees. On the other hand, third-party funders are in the quest for the best return on their investment and are thus likely to make sure that the proceedings (and the legal costs entailed) are as efficient as possible. Empirical evidence would tend to suggest that the involvement of a third-party funder is, therefore, on average, neutral in terms of costs.

Settlement

Opponents of third-party funding contend that it increases the likelihood of settlement, regardless of whether such settlement is in the best interests of the claimant, as funders will prefer (and oftentimes have the contractual right to demand) a definite return on their investment. The presence of third-party funding may inhibit the funded party from the settlement where the settlement figure is lower than the investment of the third-party funder. Moreover, it is difficult to conceive that a third-party funder would be all too pleased with the non-cash settlement, for example, where a state was to offer the claimant a new investment opportunity in exchange for the withdrawal of its claims or restitution in kind. On the other hand, it could be the case that the third-party funder, its temperament uncoloured by the emotional attachment that the funded party might bring to the table, would constitute a better negotiator and a better source of judgment as to the objective reasonability of a settlement offer. This gives rise to the question of whether the final decision as to settlement should lie with the funded party or the funder. This, in turn, raises concerns about a possible imbalance between the protection afforded to the legal interests of the funded party and the financial interests of the funder.[42]

Security

A request for security for costs is typically made by a defendant who wishes to ensure that the costs of the litigation or arbitration will be repaid in the event that the claim is not successful.[43] Certain arbitration rules expressly confirm that an arbitral tribunal has authority to order security for costs,[44] whereas other rules do not specifically provide for security for costs but allow the tribunal to order any interim measure it deems appropriate.[45] The involvement of a third-party funder could qualify as a change in circumstances that triggers security for costs request.[46] Here as well, the question hinges on a potential duty to disclose third-party funding agreements, and, or so the opponents of such a duty may argue, the confirmation of the existence of a third-party funding could be relied on as indicative of a risk that the claimant is not in a position to pay an adverse costs award, when this is not necessarily the case.[47] As a result, it has been argued that third-party funding should not impact the arbitral tribunal’s determination on security for costs, except in cases where this funding has been used abusively.[48]

The particular concerns as to investment-treaty claims were highlighted in the recent decision of the arbitral tribunal in RSM Production Corporation v. Saint Lucia, which constituted a radical shift from the traditional position against orders for security for costs in investment-treaty cases. In this decision, the tribunal ordered security for costs to be paid by the claimant, a U.S. oil company, to cover the respondent state’s legal costs in the event the claim was not successful.[49] The decision marks a striking departure from the previous approach of arbitral tribunals, which has been to deem the existence of a third-party funder irrelevant to the determination of amounts due as costs to the claimant.[50] As stated by the tribunal in Libananco v. Turkey, “it would only be in the most extreme case – one in which an essential interest of either Party stood in danger of irreparable damage – that the possibility of granting security for costs should be entertained at all.”[51] However, it remains to be seen whether the recent RSM decision signals the start of a new trend in international arbitration, or whether it will remain a singular anomaly.

CONCLUSION

As discussed above, third-party funding raises numerous questions, and the answers given to these have thus far failed to follow pace. More decisive actions and initiatives seem to be needed in order to ensure that the development of third-party funding would lay on a healthy basis, i.e., without prejudice to fairness, access of justice, and ensuring the prevention of conflict of interests.

Transitional remedies are available. In relation to conflicts of interest, third-party funding could find its place under the current regulatory framework. The crucial need for disclosure of the funding agreement is presumably but a part of the general duty to ensure that the procedure is free from any potential conflict, and is arguably encompassed within the arbitrator’s own duty to investigate any conflict of interest. This general duty of good faith could fill the gaps as necessary.

Moreover, it is noteworthy in this regard that the International Bar Association chose to expressly take third-party funding and its challenges into account in its most recent update to its Guidelines on Conflict of Interest in International Arbitration by amending the wording of General Principle 6 to encompass third-party funders.[52] The explicative note emphasizes this intent, and goes as far as to consider that third-party funders and insurers “may be considered to be the equivalent of the party” given their “direct economic interest in the award.” This could well become a leading principle in the extension of liability for costs to third-party funders in international arbitration; however, its binding power is uncertain, especially as regards national jurisdictions. Therefore, there is an urgent need for a more specific system of regulation to ensure that it is articulated to a set of best practices, possibly codified as new and specific guidelines.

What a sound and exhaustive solution would consist of is as yet unclear, as the definition of third-party funding is itself in need for further refinement. As discussed throughout this article, any set of recommendation should deal with the questions of conflict of interest and liability for costs, but the crux of the matter lies in the disclosure of the third-party funding agreement. Concealed funding may give rise to reasonable doubt as to the independence of an arbitrator and the existence, or perception, of a conflict of interest. This does not prove conducive to healthy and efficient arbitration proceedings.

As any kind of “grand solution” is unlikely to be reached in the near future, it is every actor’s responsibility to ensure that conflicts of interests are avoided and that the existence of third-party funding leads to no ethical issues. Third-party funding is not likely to cease to hit the headlines, and this should be seen as an opportunity to refine the regulatory framework in which it will develop. This could be a test for the arbitration community to see how it is able to deal with its own challenges in the best possible ethically sound way.

[1] CIArb, ‘Costs of International Arbitration Survey’ 2011-13; White and Case LLP, 2015 International Arbitration Survey: Improvements and Innovations in International Arbitration <www.arbitration.qmul.ac.uk/docs/164761.pdf> accessed 13 July 2017.

[2] International Chamber of Commerce, ICC Arbitration Commission Report on Techniques for Controlling Time and Costs in Arbitration <https://iccwbo.org/publication/icc-arbitration-commission-report-on-techniques-for-controlling-time-and-costs-in-arbitration/&gt; accessed 13 July 2017; UNCITRAL, Notes on Organizing Arbitral Proceedings (2012) <http://www.uncitral.org/pdf/english/texts/arbitration/arb-notes/arb-notes-e.pdf&gt; accessed 14 July 2017; ACICA, ACICA Expedited Arbitration Rules <https://acica.org.au/wp-content/uploads/Rules/2016/ACICA-Expedited-Arbitration-Rules-2016.pdf&gt; accessed 15 July 2017; Risse, ‘Ten Drastic Proposals for Saving Time and Costs in Arbitral Proceedings’ (2013) 29 Arb Int’l 453-466.

[3] Jonas von Goeler, Third-Party Funding in International Arbitration and its Impact on Procedure (Kluwer Law International 2016).

[4] Maya Steinitz, ‘Whose Claim Is This Anyway? Third-Party Litigation Funding (2011) 95 Minn L Rev 1275-1276.

[5] Goeler (n 3).

[6] Marie Stoyanov and Olga Owczarek, ‘Third-Party Funding in International Arbitration: Is it Time for Some Soft Rules?’ BCDR International Arbitration Review (2) 1 171.

[7] Goeler (n 3).

[8] Goeler (n 3).

[9] Blackaby et al, Redfern and Hunter on International Arbitration (Oxford University Press 2015) para 2.39; Stavros Brekoulakis, Third Parties in International Commercial Arbitration (Oxford University Press 2010), para. 1.09.

[10] Rowles-Davies, Third Party Litigation Funding, paras 2.01-2.132.

[11] Laurent Lévy and Régis Bonnan, ‘Third-Party Funding: Disclosure, Joinder and Impact on Arbitral Proceedings’ (2013) ICC Dossier No 752E 85, 79.

[12] Davies (n 10); Bench Nieuwveld & Shannon (eds), Third-Party Funding in International Arbitration, 39-44, 71; de Morpurgo, ‘A Comparative Legal and Economic Approach to Thirdparty Litigation Funding’ (2011) 19 Cardozo J Int’l & Comp L 343, 387-399; Barker, 8 J L Econ & Pol’y (2012) 451, 458-467.

[13] Brekoulakis (n 9); Gary Born, International Commercial Arbitration (Wolters Kluwer 2009); Girsberger & Hausmaninger, ‘Assignment of Rights and Agreement to Arbitrate’ 8 Arb Int’l (1992) 121.

[14] German Federal Court of Justice, III ZR 2/96, 51 NJW (1998) 371, 371; German Federal Court of Justice, XII ZR 42/98, 53 NJW (2000) 2346, 2346; Schlosser, in Stein/Jonas, s 1029 para 87a.

[15] Société Taurus Films v Les Films du Jeudi French Cour de cassation (1re chambre civile), Judgment of 8 February 2000; Sociétés ABS et AGF v Société Amcor technology et autres Bull Civ 2007 I no 129.

[16] Nextrom Holding SA v Watkins International SA 20 ASA Bull (2002) 80-87; AX v BX et al Swiss Federal Tribunal Judgment of 19 April 2011 4A_44/2011, para 2.4.1

[17] Shayler v Woolf [1946] Ch 320, 324; West Tankers Inc v Ras Riunione Adriatica Di Sicurta SpA [2005] EWHC 454.

[18] IAsset Allocation & Mgt Co v W Employers Ins Co 892 F2d 566, 574; SE Pa Transp Auth v AWS Remediation, Inc 2003 WL 21994811.

[19] Born (n 13); Blackaby et al, Redfern and Hunter on International Arbitration, para. 2.47; Franco Ferrari & Stefan Kroll, Conflict of Laws in International Arbitration 379 (European Law Publishers).

[20] Gaillard & Savage, Goldman on International Commercial Arbitration, paras 691-692; Brekoulakis (n 9).

[21] Born (n 13).

[22] Société Casco Nobel France v Sico inc et Kansa Rev Arb (1993) 632.

[23] Alfonso Gomez-Acebo, Party-Appointed Arbitrators in International Commercial Arbitration, International Arbitration Law Library (34) 69.

[24] John Rawls, A Theory of Justice 118 (Harvard University Press 1999). 

[25] UNCITRAL Arbitration Rules (1976) art 10.1, 12.1, 12.2.

[26] ibid.

[27] UNCITRAL Arbitration Rules (2010) art 12.1; ICC Arbitration Rules (2012) arts 11.2 and 14.1; LCIA Arbitration Rules (2014) arts 5.4 and 10.1; DIS Arbitration Rules (1998) s 18.1; AAA International Arbitration Rules (2014) arts 13.2 and 14.1; CPR Rules for Non-Administered Arbitration of International Disputes (2007) art 7; Swiss Rules of International Arbitration (2012) arts 9.2 and 10.1; SCC Arbitration Rules (2010) arts 14.1 and 15.1; CIETAC Arbitration Rules (2014) arts 31 and 32; HKIAC Administered Arbitration Rules (2013) art 11; JAMS International Arbitration Rules (2011) arts 9.1 and 8.1; WIPO Arbitration Rules (2014) arts 22.b and 24.a; CRCICA Arbitration Rules (2011) arts 13.1 and 11.1; NAI Arbitration Rules (2015) arts 11.3 and 19.1; SIAC Arbitration Rules (2013) arts 10.4 and 11.1; CAS Code (2013), Procedural Rules 33 and 34.

[28] Alfonso Gomez-Acebo (n 23).

[29] ibid.

[30] IBA Rules of Ethics for International Arbitrators (1987) Rule 1; IBA Guidelines on Conflict of Interest in International Arbitration (23 October 2014).

[31] IBA Guidelines in General Principle 6(b).

[32] ibid (n 7).

[33] Code de Procédure Civile art 1456.

[34] Marc J Goldstein, ‘Should the Real Parties in Interest Have to Stand Up? Thoughts About a Disclosure Regime for Third-Party Funding in International Arbitration’ (2011) 8 TDM 4; Jennifer Trusz, ‘Full Disclosure? Conflicts of Interest Arising from Third-Party Funding in International Commercial Arbitration’ (2013) 101 Georgetown LJ 1649.

[35] Rodrigo Garcia da Fonesca, ‘A Little Bit of Both Worlds. Is There a Need of More Transparency in Third-party Funding? Some Comments from a Latin American Perspective’ (2014) ICC Institute Newsletter 3rd edn November.

[36] ibid; Maxi Scherer, ‘Out in the Open? Third-party Funding in Arbitration’ Comm Dispute Res (July 26 2012).

[37] William Park & Catherine Rogers, ‘Third-Party Funding in International Arbitration’ (2014) The ICCA Queen Mary Task Force Penn State Law Legal Studies Research Paper No 42.

[38] Maxi Scherer (n 36).

[39] ibid.

[40] Maxi Scherer (n 36).

[41] ibid.

[42] Maya Steinitz & Abigail Field, ‘A Model Litigation Finance Contract’ (2014) 99 Iowa L Rev 711.

[43] Weixia Gu, ‘Security for Costs in International Commercial Arbitration’ (2005) 22 J Int’l Arb 167.

[44] LCIA Rules art 25.2; SIAC Rule 24.1(k).

[45] ICC Rules art 28.1; International Centre for Settlement of Investment Disputes art 47.

[46] Maxi Scherer (n 36).

[47] Rebecca Lowe, ‘Speculate and Arbitrate to Accumulate’ IBA Global Insight (Apr & May 2013)

[48] William Kirtley & Koralie Wietrzykowski, ‘Should an Arbitral Tribunal Order Security for Costs When an Impecunious Claimant is Relying upon Third-Party Funding?’ (2013) 30 J Int’l Arb 1, 29.

[49] RSM Production Corporation v Saint Lucia ICSID Case No ARB/12/10.

[50] Ioannis Kardassopoulos & Ron Fuchs v Republic of Georgia ICSID Case Nos ARB/05/18 & ARB/07/15 Award (3 Mar 2010), para 691.

[51] Libananco Holdings Co Limited v Republic of Turkey ICSID Case No ARB/06/8 (23 June 2008) Decision on Preliminary Issues, para 57.

[52] International Bar Association, IBA Guidelines on Conflicts of Interest in International Arbitration (Adopted by resolution of the IBA Council on Thursday 23 October 2014).

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(Soumya is a student at Hidayatullah National Law University, Raipur.)