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pp 1-12 | Cite as

Third-Party Funding in Arbitration: A Case for Mandatory Disclosure?

  • Nataša HadžimanovićEmail author
Chapter
Part of the Balkan Yearbook of European and International Law book series

Abstract

The author of this article discusses the question whether or not it is necessary to put a party who has obtained third-party funding under a duty to disclose this fact. In fact, the trend in international arbitration goes towards an imposition of such a duty. This is meant as an answer to the following three typical ‘risk scenarios’ related to third-party funding:
  1. (a)

    Third-party funders may in some way be connected to arbitrators and, therefore, impair their impartiality and independence.

     
  2. (b)

    Third-party funders are no parties to the procedure and can therefore not become liable for the payment of costs ordered in the award to the opponent of an impecunious funded party—but if the arrangement and concealed impecuniosity were revealed, the opponent could request a security for costs.

     
  3. (c)

    In some cases, a party is fiercely opposing a security for cost order by painting a picture of being a poor David oppressed by a wealthy Goliath when in fact this party is just as strong financially due to third-party funding.

     

However, it has also been advocated that to impose an obligation to disclose would be unnecessary and impractical: it has been stated that the economics behind most litigation funding provides a key safeguard against conflicts of interest, bad faith and any other misconduct that could endanger or prolong the arbitration process.

After weighing up the arguments behind these positions, the author proposes for the time being (a) to closely watch the developments in Hong Kong and Singapore to see (as far as that is possible) whether or not a duty to disclose third-party funding produces undesirable results and (b) to suggest to arbitral institutions to provide the parties with an information leaflet on third-party funding with a list of recommendations and short explanations as to the consequences of too late a revelation of third-party funding.

References

  1. Berger B, Kellerhals F (2015) International and domestic arbitration in Switzerland, 3rd edn. BernGoogle Scholar
  2. Bernet M, Hoffmann-Nowotny U (2017) The third party litigation funding law review. Chapter 16, Switzerland, pp 154–164Google Scholar
  3. Bogart CP (2017) Third-party financing of international arbitration. b-Arbitra, pp 315–325Google Scholar
  4. Darwazeh N, Leleu A (2016) Disclosure and security for costs or how to address imbalances created by third-party funding. J Int Arbitr 33:125–150Google Scholar
  5. Gabriel S (2018) Chapter 18, Part XVIII: damages for breach of arbitration agreements. In: Arroyo M (ed) Arbitration in Switzerland, The Practitioner’s Guide, 2nd edn, Kluwer, Alphen aan den RijnGoogle Scholar
  6. Gabriel S, Hadžimanović N (2017) Consequences of the breach of arbitration agreements. Slovenska arbitražna praksa, pp 37–48Google Scholar
  7. Henderson A, Waldek D, Chua E (2019) Singapore. In: Friel S, Barnes J (eds) Litigation funding, pp 68–71, Law Business Research, LondonGoogle Scholar
  8. Kirtley W, Wietrzykowski K (2013) Should an arbitral tribunal order security for costs when an impecunious claimant is relying upon third-party funding? J Int Arbitr 30:17–30Google Scholar
  9. Livschitz T (2018) Chapter 18, Part VI: third party funding in arbitration. In: Arroyo M (ed) Arbitration in Switzerland: the practitioner’s guide, 2nd edn, Kluwer, Alphen aan den RijnGoogle Scholar
  10. Mansinghka V (2017) Third-party funding in international commercial arbitration and its impact on independence of arbitrators: an Indian perspective. Asian Int Arbitr J 13:97–112Google Scholar
  11. Osmanoglu B (2015) Third-party funding in international commercial arbitrator and arbitrator conflict of interest. J Int Arbitr 32:325–350Google Scholar
  12. Perrin L (2017) The third party litigation funding law review. Preface, v–viGoogle Scholar
  13. Redfern A, O’Leary S (2016) Why is it time for international arbitration to embrace security for costs? Arbitr Int 32:397–413Google Scholar
  14. Sim C (2018) Third Party Funding in Asia: whose duty to disclose? Kluwer Arbitration Blog, 22 May 2018. http://arbitrationblog.kluwerarbitration.com/2018/05/22/third-party-funding-asia-whose-duty-disclose/. Accessed 13 Mar 2019
  15. Stone W (2015) Third party funding in international arbitration: a case for mandatory disclosure? Asian Dispute Rev 17:62–70Google Scholar
  16. The Report of the ICCA-Queen Mary Task Force on Third-Party Funding in International Arbitration, April 2018, The ICCA Report No. 4Google Scholar
  17. von Goeler J (2016) Third-party funding in international arbitration and its impact on procedure. Kluwer Law InternationalGoogle Scholar
  18. Wehrli D (2008) Contingency Fees/Pactum de Palmario ‘civil law approach’. ASA Bull 2008:241–258Google Scholar

Copyright information

© Springer Nature Switzerland AG 2019

Authors and Affiliations

  1. 1.GABRIEL Arbitration AG and University of ZurichZurichSwitzerland

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