Researching Third-Party Funding in Investor-State Dispute Settlement

By Sherry Xin Chen & Kirrin Hough

Sherry Xin Chen is a legal information librarian and lecturer in law at Boston College Law School. She teaches both U.S. and international legal research courses and is active in AALL’s Foreign, Comparative & International Law section, currently chairing one of its interest groups on electronic research and resources. She holds a B.A. from Shanghai International Studies University, China, and both a J.D. and a M.S. in Library Science from the University of Michigan, Ann Arbor. She is admitted to practice law in the State of New York.

Kirrin Hough is a U.S. attorney admitted to practice law in Maryland. She is a Graduate Fellow of the Boston College Law & Justice in the Americas Program and a member of the Boston College Law School Working Group on Investment Reform. She has authored and coauthored articles on investment arbitration and investment law reform for the American Society of International Law’s Insights, the International Institute for Sustainable Development, and the Journal of International Economic Law. Kirrin holds a B.A. from Georgetown University and a J.D. from Boston College Law School.

Published in May 2019
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1. Introduction

Third-party litigation funding is a rapidly expanding industry composed of speculative investors who finance legal claims in a number of disputes, in exchange for influence over case management and a contingency in the recovery.[1] As third-party funding now becomes increasingly widespread in investment arbitration, it becomes critically important for policymakers, academics, IGOs/NGOs, arbitral institutions and practitioners alike to understand how third-party funding works in the investment arbitration setting and its implications, as well as ongoing reform efforts addressing the role of this funding mechanism in investor-state dispute settlement.

Emerging in the 1960s, the investor-state dispute settlement (ISDS) system allows foreign investors to bring claims against host States based on bilateral investment treaties (BITs) or other international agreements.[2] If the State party is found to be in breach of its treaty obligations, the foreign investor may receive large monetary awards or other forms of remedies.[3] After the economic recession in 2008, third-party funding, as a form of dispute funding, has rapidly expanded its presence in the ISDS setting. Simply put, third-party funding in ISDS “involves an entity, with no prior interest in the legal dispute, providing financing to one of the parties (usually the claimant).”[4]

Investment arbitration differs from private commercial arbitration in a number of key respects relevant to understanding the implications of third-party funding. First, investment arbitration in the ISDS system involves States as respondents, rather than commercial parties. Therefore, claims and costs are paid from State budgets (i.e. taxpayers) rather than a commercial defendant’s resources or shareholders. Second, ISDS proceeds under a set of substantive rules (BITs) which create rights for investors but primarily only duties for States, meaning States can generally not raise counterclaims and cannot recover in turn (except costs in certain cases) from investor claimants. Third, ISDS takes place under procedural rules (ICSID or UNCITRAL arbitration rules are the primary ones) that allow claimants to select one of the three arbitrators, and which do not allow for appeal.

Third-party funding in this setting has drawn particular attention because it has a more profound impact on investment policy and a host of other issues, than it necessarily raises in other settings. Third-party funding has become one element in the heated debates about “the purpose, function, and legitimacy of the laws governing foreign investment and investment arbitration.”[5] This is so because the increasing costs, increasingly large monetary awards, and growing number of cases have become matters of recent public concern regarding the ISDS system. Third-party funding raises issues related to conflicts of interest, access to justice, disclosure and transparency, to ongoing investigation of the risk, costs and balance of ISDS procedures.

This research guide aims to provide the tools necessary for your understanding and researching of third-party funding in the context of investor-state arbitration. A selected bibliography of scholarly writings, publications from IGOs/NGOs and institutional repositories that may inform you about the history, background and development of third-party funding in ISDS and the current debate is included in Section 8.

2. Background on Third-Party Funding

Common law jurisdictions have historically banned third-party funding under prohibitions against maintenance and champerty.[6] Starting with the 2006 judicial relaxation of these rules in Australia, third-party funding spreads rapidly to the United Kingdom and the United States, and has recently expanded to Singapore, Hong Kong, China, Latin America, and Europe.

Third-party funding can be understood as a financing mechanism in which a third-party finances the costs of arbitral proceedings for a party in a dispute.[7] In return, the funder receives a percentage of the awarded compensation (if the claim is successful) and is able to gain some degree of control over the case and/or client.[8] If the claim fails, the funder receives no compensation and will bear the liability for any fees due to the claimant’s legal team as agreed in the funding agreement.[9]

While third-party funders generally prefer not to disclose their stake to the other parties in the dispute or to the adjudicators, available evidence suggests an already significant involvement, with 39 percent of respondents in a recent Queen Mary Survey having encountered third-party funding in practice.[10] The third-party funding industry includes specialized litigation firms, insurance companies, investment banks and hedge funds.[11]

Investor-state arbitration is a very attractive and lucrative investment opportunity for third-party funders. Although the costs of funding investment arbitration proceedings often exceed millions of U.S. dollars, the returns to third-party funders average 30-50%.[12] Factors that funders consider when deciding whether to enter into a funding agreement with a claimant include: the merits of the case; the enforceability of the award against the host-state; its development level, and ability to mount an effective legal team; the potential value of compensation; any adverse costs that may be faced if the claim is unsuccessful; and the expertise of the legal team they will be funding.[13]

The vast majority of funding goes to claimants since financing claimants yields a greater “upside” (or profit) as compared to the funding of respondent states (which gain no financial award under the current BIT rules). Investor-claimants enjoy a similar “upside” insofar as third-party funding can remove much of the financial risk of bringing a claim against a host-state.

3. Analysis of Data and Investment Policy

Although third-party funding in ISDS has been drawing the spotlight recently, data and statistics directly related to the industry are scarce. Despite the rising number of cases and the higher amount of damages being claimed in ISDS, whether third-party funding is directly contributing to this trend is being animatedly debated due to the lack of empirical data,[14] which is in no small part due to the absence of disclosure requirements and funder secrecy. To tackle the problem from a broader angle, one may benefit from a look at data and statistics related to the ISDS regime, which is readily available, and to follow the works of IGOs and NGOs active in the field for an overview of investment policy in general, and third-party funding in particular.

The Investment Policy Hub of the United Nations Conference on Trade and Development (“UNCTAD”) provides the most comprehensive resources for data collection and investment policy research in the field of ISDS. The hub contains databases for both international investment agreements and ISDS cases. It is truly a “one stop shop” for facts and figures related to ISDS cases, for investment policy monitoring at national, bilateral and multilateral levels, and for the text and analysis of treaties with ISDS clauses. In addition to databases, UNCTAD’s publications are equally valuable. UNCTAD regularly reviews the developments in the ISDS regime and sends its update in IIA Issue Notes. Those Notes track the trends in investment treaty making and also provide periodic review of the statistics related to ISDS cases and rewards. Its recent Review of ISDS Cases and Awards in 2017 reveals that the number of new ISDS claims remains high. In 2017, at least 65 new ISDS cases were initiated, making the total number of known cases to 855.

Apart from the Investment Policy Hub, UNCTAD has a robust Statistics branch that provides detailed data and analysis on foreign direct investment.

Working Group III of the United Nations Commission on International Trade Law (UNCTRAL) is currently working on the topics of Investor-State Dispute Settlement Reform. Working Group III’s website provides documents related to its meetings and reports, comments collected from national governments and IGOs, and also Notes from the Secretariat addressing a range of concerns in ISDS and possible reforms. Issues related to the practice of third-party funding will also be addressed in the process. In the spring of 2019, the Secretariat has just released a long-delayed memorandum on third-party funding, supporting many Member State’s reform activities. In addition, the websites provides other online resources and a bibliography of recent writings related to the work of UNCITRAL on investor-state dispute settlement.

OECD, the Organization for Economic Co-operation and Development (OECD), with 36 member States, is another organization working to advance investment policy reform. OECD’s international investment working paper series address various issues such as “investment agreements, dispute settlement, fair and equitable treatment, most favored nation treatment, and corruption.” Its website also provides foreign direct investment statistics. In 2012, after a formal roundtable discussion and public consultation, OECD published a working paper, Investor-State Dispute Settlement: A Scoping Paper for the Investment Policy Community. The scoping paper provides a broad overview of the policy issues raised by ISDS, including issues related to access to justice, costs, remedies, enforcement, third-party funding, arbitrators, forum and treaty shopping, and consistency. To track the variance in investment treaty practice, it also surveyed the ISDS provisions of 1660 bilateral investment treaties and published its findings in the working paper.

The ICCA-Queen Mary Task Force on Third-Party Funding is a joint project between the International Council for Commercial Arbitration (“ICCA”) and Queen Mary University of London (“Queen Mary”). Since the creation of the joint Task Force in 2013, it has “set out to systematically study and make recommendations regarding the procedures, ethics, and policy issues relating to third-party funding in international arbitration” in a series of reports, roundtable discussions and public symposiums. The ICCA-Queen Mary Task Force Report on Third-Party Funding (the ICCA-Queen Mary Report), the fourth Report in the ICCA Reports Series, is published in April 2018. The report provides an overview of the different forms of funding (Chapter 2), definitions for “third-party funders” and “third-party funding” (Chapter 3), and analysis on issues such as disclosure and conflicts of Interest (Chapter 4), privilege (Chapter 5), and costs and security (Chapter 6). Chapter 8 is devoted to third-party funding in investment arbitrations entirely and discusses some of the most important cases with third-party funding in great details. While generally acknowledged as a positive contribution to the debate over third-party funding, the report falls short of offering policy prescriptions beyond increased disclosure, particularly in the area of third-party funding in ISDS.[15]

Annex C of the ICCA-Queen Mary Report includes a summary of a roundtable hosted by the Columbia Center for Sustainable Investment (CCSI) and the ICCA-Queen Mary Task Force. The roundtable addressed the public policy impacts of third-party funding in ISDS. A PowerPoint presentation from CCSI, Third Party Funding: Advancing or Undermining the Purpose of Investment Treaties?, outlines some of the concerns surrounding third-party funding in ISDS.

Since 2015 the European Commission has been working to establish a Multilateral Investment Court as a permanent body to decide investment disputes. ISDS: Some Facts and Figures, a paper published by the European Commission in 2015, revealed that investors from the EU Member State are the largest users of the ISDS system.

4. Examining the Legal Basis of ISDS in Light of Third-Party Funding

As explained in the OECD Scoping Paper, the legal basis of ISDS is “complex and varied”—it is “spread across dispute resolution provisions contained in some 3000 investment treaties, in other international conventions (notably the ICSID Convention and the New York Convention) and arbitration rules.”[16] Tools and resources that may aid in your research of those legal basis are included in the sections below.

4.1. International Investment Agreements

Under the ISDS system, a foreign investor may initiate dispute settlement proceedings against a host State based on consent given in international investment agreements. These agreements can be bilateral or multilateral. Based on statistics from UNCTRAD, a big majority of ISDS cases were based on BITs. UNCTAD’s Review of ISDS Cases and Awards in 2017 reveals that about 80 percent of new cases in 2017 were brought under BITs.

In addition to BITs, ISDS cases can also be brought under treaties with investment provisions (TIPs)-for example, many free trade agreements contain investment chapters that provide for ISDS in the event of an investment-related dispute.

To find the text of those BITs or TIPs, UNCTAD’s International Investment Agreements Navigator is the most useful tool. It currently contains information for over 2,900 BITs and 380 TIPs. For the majority of those treaties, the Navigator provides the full text. Researchers may look up treaties by economy (country name), by country grouping, or use the Advanced Search for more sophisticated searching and filtering options.

Based on data from UNCTAD’s Investment Dispute Settlement Navigator, updated as of today, the most contested instruments in ISDS proceedings are:

  • The Energy Charter Treaty (1994): 113 Cases
  • NAFTA: 61 Cases
  • Argentina – United States of America BIT (1991): 21 Cases
  • Netherlands – Venezuela, Bolivarian Republic of BIT (1991): 14 Cases
  • Russian Federation – Ukraine BIT (1998): 11 Cases

In addition to providing the treaty text, UNCTAD has another tool to aid your understanding of those treaties and to provide guidance to policymakers. The International Investment Agreements Mapping Project is a collaborative initiative between UNCTAD and universities worldwide to map the content of those agreements. According to the Mapping Project Description & Methodology, even though most BITs or TIPs contain similar structure and similar elements, they “often address the same issues in different ways, entailing important differences in legal consequences.” One purpose of the Mapping Project is to shed lights on those similarities and differences that might be critical to the outcomes of many ISDS cases. As of today, the Project has mapped over 2,500 investment agreements based on a detailed list of parameters and offered all the analysis for free in its database.

4.2. Arbitration Rules

Arbitrations rules are usually provided on the institution’s website. In ISDS proceedings, two common choices for foreign investors are (1) an ICSID arbitration under the ICSID Convention and the ICSID Arbitration Rules, or (2) an ad hoc arbitration under the UNCITRAL Arbitration Rules.

The International Center for Settlements of Investment Disputes (ICSID), part of the World Bank Group, is an institution established under the ICSID Convention, which is a multilateral treaty entered into force on October 14, 1966 and ratified by 154 Contracting States as of today. The text and most up-to-date status of the Convention can be found at the ICSID website. For investment arbitrations taking place at ICSID, the ICSID Convention and the ICSID Arbitration Rules usually provide the procedural framework.

Foreign investors may also take a non-institutional approach by adopting the UNCITRAL Arbitration Rules drafted and promoted by the United Nations Commission on International Trade Law (UNCITRAL).

For more information on how to find institutional and ad hoc arbitration rules, please see an article by Hernando Otero & Omar Garcia-Bolivar, International Arbitration Between Foreign Investors and Host State, GlobaLex (March 2017).

5. Researching Third-Party Funders and Funded Cases

5.1. Funders

Due to the lack of transparency, little is known about the specifics of the third-party funding industry. Based on news articles, blog posts, and information on third-party funders’ websites, here are some big players in the field:[17]

A list of about 50 “Leading Third-Party Funders and Third-Party Funding Brokers” is compiled by the law firm Aceris Law.

Both Buford Capital (AIM Code: BUR) and Juridica Investment (AIM Code: JIL) are publicly traded companies listed on the London AIM Stock Exchange. You can look up detailed information about these two public companies by entering its AIM Code in AIM Company Search. In addition to financial information such as stock price and profits for the period, the company’s regulatory filings and news pulled from other sources are also available. Financial statements and annual reports are also published on the company’s website.

Although those documents seldom discuss the specifics of the investment arbitration cases being funded, they offer great insights into the structure and operation of the funding industry. News and promotion materials on those companies’ websites may also include references to those cases—however, key information is often omitted.

Buford Capitals’s annual reports for the past 5 years can be found below:

NGOs also play an important role in the investigation and publication of information regarding third-party funders. In 2012, the Transnational Institute (TNI), an international research and advocacy institute known for their “well researched analysis on key global issues long before they become mainstream concerns”, published an influential report examining the roles of law firms, arbitrators and financiers in the investment arbitration regime—TNI’s Profiting from Injustice report. Chapter 5 of the report provides a detailed account of some of the main players in the funding industry and the tactics deployed by third-party funders to “speculate on injustice”.[18]

5.2. Funded Cases

Since few investment treaties or arbitration rules require the disclosure of third-party funding, tracking those cases can be a difficult task. One way to stay informed of the recent cases with third-party funding is to follow websites or blogs dedicated to investment arbitration or international investment law. Here are a few examples:

Below is a list of key cases involving third-party funding. A hyperlink that will lead to key documents and more information of the case is also included. Students from Boston College Law School’s Working Group on Investment Reform have also built a chart for those cases with third-party funding on an Excel spreadsheet, outlining each case’s outcome/status, claimant and respondent, compensatory amount and other key information. Worth mentioning is that about 26 out of the 29 cases listed below involve developing countries, countries with vulnerable economies, or countries that do not have a long practice in the international trade arena.

As a more general strategy, if you have the name or some information of a certain case and want to find out more about it, UNCTAD’s Investment Dispute Settlement Navigator is good place to start. As one of the most comprehensive databases for ISDS cases, researchers can search cases by different perimeters: case names, nationality of the parties, date of initiation, applicable investment agreement, arbitration rules and institution, status, amounts claimed or awarded, etc. Advanced search offers many searching and filtering options.

For each case, the Navigator provides a summary of the matters at issue and details about the proceedings. If there are orders, decisions or awards rendered at different stages of the case, links to those materials are often included—many of the links direct you to the full text of those materials hosted on a free website. Due to the nature of investment arbitration, certain aspects of proceedings may remain confidential and relevant materials are not disclosed to the public.

ICSID’s Cases Database is another good source for ICSID decisions and awards. The database provides many filters to help you find the right case. For each case, the database provides information about its proceeding, materials and procedural details. If any of the materials are available on the ICSID website, links are included. In addition to the case database, ICSID also publishes Tables of ICSID Decisions on various procedural and substantive topics and the ICSID Caseload – Statistics.

Investment Treaty Arbitration, Global Arbitration Review and IA Reporter also contain decisions, orders, awards and other materials related to ISDS cases. However, the last two are subscription-based.

For more information on how to find ISDS cases, please see International Arbitration Between Foreign Investors and Host State on GlobaLex.

6. Concerns Surrounding Third-Party Funding in ISDS

As the use of third-party funding in investor-state arbitration rapidly grows, so too do the debates and concerns surrounding third-party funding in terms of both law and ethics. Some of these issues are examined below with important resources that are key to understanding the concerns regarding the practice.

6.1. Access to Justice

Proponents of third-party funding often argue that the practice allows investors who lack the financial resources to bring claims against states when they would otherwise lack the capability to do so due to financial constraints.[19]

Critics of third-party funding, however, argue that the practice undermines the traditional access to justice rationale. As explained in an article by T. Santosuosso & Randall Scarlett titled Third-Party Funding in Investment Arbitration: Misappropriation of Access to Justice Rhetoric by Global Speculative Finance (60 B.C.L.Rev. E. Supp. I.-8 (2019), critics argue that third-party funding in ISDS is focused primarily on balance-sheet management in which third-party funding allows claimants to mitigate the risks associated with bringing a claim and instead free up capital to pursue other business opportunities. Other articles in the same series, Boston College Law School’s Law and Justice in the Americas Working Paper Series, have also explored this topic in great depth.

Chapter 5 of TNI’s Profiting from Injustice, entitled “Speculating on Injustice,” also examines the issue of third-party funding and makes a case for the negative impact on justice by third-party funding in investment disputes.

6.2. Third-Party Funding and Asymmetry of the ISDS Regime

Other concerns exist that third-party funding is further exacerbating the already asymmetric structure under the current BIT/ISDS regime. UNCITRAL’s Working Group III, currently working on the topics of ISDS reform, has identified third-party funding as a “significant concern [that] created a systemic imbalance and did not ensure a level playing field.”[20]

As this Boston College Law Review article, Third-Party Funding as Exploitation of the Investment Treaty System, explains, there is increased concern that third-party funding takes unfair advantage of a dispute settlement system in which states lack substantive rights under the treaty and claimants have a direct voice in the selection of adjudicators and there is no right of appeal. This law review article argues that third-party funding concentrates financial resources in the hands of the investor-claimants, while placing a significant burden on states, and the public—the taxpayers—who are seen as “residual risk-bearers”.

Following a conference on “Reforming International Investment Law” in October 2017, Boston College Law Review dedicated Volume 59, Issue 8 as a symposium issue to publish essays written by the panelists of the conference. Those essays discuss a wide range of issues challenging the current international investment arbitration system and offer prudent solutions. Among those essays, “Justice for All? Protecting the Public Interest in Investment Treaties” explores the issue of asymmetry in the current international investment regime in particular. This Yearbook on International Investment Law and Policy 2018 (OUP, forthcoming 2019) article, The Great Asymmetry and the Rule of Law in International Investment Arbitration, further discusses the overall imbalance of the international investment regime and argues that the current investment system ultimately clashes with the rule of law.

6.3. Conflicts of Interest

As explained in Chapter 5 of TNI’s Profiting from Injustice in the section entitled “Gatekeepers”, there are rising concerns regarding the numerous conflicts of interest between third-party funders in investment arbitration and arbitrators, lawyers and investors.

6.4. Frivolous Claims

As further explained in Chapter 5 of TNI’s Profiting from Injustice, in the sections entitled “Dredging up Disputes” and “Driving up Legal Bills, Investing in Rule Change,” the rise of third-party funding in ISDS is creating concerns that third-party funding is incentivizing claimants to bring claims, and funders to finance such claims, that lack strong merits. Critics argue that this trend of financing frivolous claims is increasing legal costs for states, while investor-claimants bear little of the risk in bringing such claims.

6.5. Transparency

As previously discussed, third-party funders are not apt to disclose their involvement in investment arbitrations. As the role of third-party funding grows in investment dispute settlements, so too do concerns around the transparency and need for disclosure, as explained in the Boston College Law Review article, Expansive Disclosure: Regulating Third-Party Funding for Future Analysis and Reform.

7. Reform Efforts

In light of concerns for transparency, independence and conflicts of interest in ISDS proceedings, investment treaties and free trade agreements begin to introduce provisions addressing third-party funding, although some of the agreements mentioned below have not yet been ratified and entered into force. The earliest attempts come from the European Union.

The European Union-Canada Comprehensive Economic and Trade Agreement (CETA), which is currently in force, contains a definition for third-party funding (Article 8.1). The text of the European Union-Vietnam Investment Protection Agreement at the end of the negotiation in August 2018 includes both definition (Article 3.28) and disclosure requirements (Article 3.37) for third-party funding. The agreement has not yet completed the ratification process by each party. In addition, the European Union’s proposal for Investment Protection and Resolution of Investment Disputes under the Transatlantic Trade and Investment Partnership (TTIP) also contains proposed definition (Article 1) and disclosure requirements for third-party funding (Article 8).

So far, very few arbitration institutions have issued rules explicitly defining or addressing third-party funding. Here are a few exceptions. The Center for Arbitration and Mediation of the Chamber of Commerce Brazil-Canada (CAM-CCBC) in Brazil issued recommendations on how to address third-party funding in Administrative Resolution No. 18/2016.

In Singapore, the Investment Arbitration Rules of 2017 issued by the Singapore International Arbitration Centre (SIAC) gave the arbitration tribunal the power to order the disclosure of the identity of the third-party funder and the details of the third-party funding agreement (Article 24).

Another example is the China International Economic and Trade Arbitration Commission (CIETAC), the primary arbitration institution in China. Its new International Investment Arbitration Rules have been in force from October 1, 2017 for trial implementation. Article 27 expressly requires the disclosure of “the existence and nature of the third-party funding arrangement, and the name and address of the third-party funder.”

ICSID is currently in the process of amending its rules and regulations. Information about the amendment proposals, background documents, public comments, seminars and events can be found on ICSID’s webpage on amendment. In August 2018, ICSID released its Proposals for Amendments to the ICSID Rules. Proposed Rule 21 provides a definition for third-party funding and also creates an on-going obligation for the parties to the dispute to disclose the existence of third-party funding and the identity of the third-party funder. Comments after the proposed Rule 21 gave detailed explanation about the concerns identified in the public commenting period, and the reasoning behind the proposed rule. Examples related to the disclosure of third-party funding in investment treaties and arbitrations rules of other institutions have also been cited and discussed, in addition to relevant case law from ICSID. The proposed ICSID rules have also made it easier to impose security for costs in a range of situations, including third-party funding, which could disincentivize third-party funders from pursuing weak cases merely for their settlement value.[21]

8. Selected Bibliography

  • Alessandra Arcuri & Francesco Montanaro, Justice for All? Protecting the Public Interest in Investment Treaties, 59 B.C.L. REV. 2791 (2018).
  • Alessandra Arcuri, The Great Asymmetry and the Rule of Law in Trade and Investment Agreements, in Yearbook on International Investment Law & Policy (OUP, forthcoming 2019).
  • Anthea Roberts, Clash of Paradigms: Actors and Influences Shaping the Investment Treaty System, 107 Am.J. Int’l L. 45 (2013).
  • Boston College Law School’s The Law and Justice in the Americas Working Paper Series
  • Catherine A. Rogers, Gamblers, Loan Sharks & Third-Party Funders, in Ethics in International Arbitration 177 (OUP 2014).
  • Christopher P. Bogart, Third-Party Financing of International Arbitration, in The Arbitration Review of the Americas 51 (2017).
  • Columbia Center on Sustainable Investment: Investment Law & Policy
  • D. Gaukrodger & K. Gordon, Investor-State Dispute Settlement: a Scoping Paper For The Investment Policy Community 10 (OECD Working Papers on International Investment, 2012/03, 2012).
  • Eric De Brabandere & Julia Lepeltak, Third Party Funding in International Investment Arbitration (Grotius Ctr. Working Paper No. 2012/1, 2012).
  • Frank J. Garcia et al., Reforming the International Investment Regime: Lessons from International Trade Law, 18 J.Int’l Econ.L. 861 (2015).
  • Frank J. Garcia, Third-Party Funding as Exploitation of the Investment Treaty System, 59 B.C.L. REV. 2911 (2018).
  • Int’l Council for Commercial Arbitration, Report of the ICCA Queen-Mary Task Force on Third-Party Funding in International Arbitration (The ICCA Reports No. 4, April 2018)
  • J. Von Goeler, Third-Party Funding in International Arbitration and its Impact on Procedure (Kluwer Law International 2016).
  • Marco de Morpurgo, A Comparative Legal and Economic Approach to Third-Party Litigation Funding, 19 Cardozo J. of Int’l & Comp. Law 343 (2011).
  • Maya Steinitz, Whose Claim Is This Anyway? Third Party Litigation Funding, 95 Minn. L. Rev. 1268 (2011).
  • Pia Eberhardt & Cecilia Olivet, Profiting from Injustice: How Law Firms, Arbitrators and Financiers are Fueling an Investment Arbitration Boom (2012).
  • Steven Ratner, International Investment Law Through the Lens of Global Justice, 20 J.Int’l Econ.L. 747 (2017).
  • Tara Santosuosso & Randall Scarlett, Third-Party Funding in Investment Arbitration: Misappropriation of Access to Justice Rhetoric by Global Speculative Finance, 60 B.C.L. REV. E. Supp. I.-8 (2019).
  • Thomas Schultz & Cédric Dupont, Investment Arbitration: Promoting the Rule of Law or Over-Empowering Investors? A Quantitative Empirical Study, 25 Eur.J. Int’l L. 1147 (2015).
  • Willem H. van Boom,Third-Party Financing in International Investment Arbitration 30 (2011).

 

[1] See generally Maya Steinitz, Whose Claim Is This Anyway? Third Party Litigation Funding, 95 Minn. L. Rev. 1268 (2011).

[2] D. Gaukrodger & K. Gordon, Investor-State Dispute Settlement: A Scoping Paper for the Investment Policy Community 10 (OECD Working Papers on International Investment, 2012/03, 2012) [hereinafter OECD Scoping Paper].

[3] Id.

[4] Int’l Council for Commercial Arbitration, Report of the ICCA Queen-Mary Task Force on Third-Party Funding in International Arbitration 18 (The ICCA Reports No. 4, April 2018) [hereinafter ICCA-Queen Mary Report]

[5] Id. at 199.

[6] Caroline Kenny, QC, Evolution, Adaptation of Third Party Funding of Arbitrations (this article is adapted from the author’s speech at a 2017 Hong Kong Summit on Commercial Dispute Resolution in China) (Feb. 11, 2018).

[7] Eric De Brabandere & Julia Lepeltak, Third Party Funding in International Investment Arbitration 5 (Grotius Ctr. Working Paper No. 2012/1, 2012).

[8] Id. at 5–8.

[9] Id. at 5.

[10] James Egerton Vernon, Taming the “Mercantile Adventurers”: Third Party Funding and Investment Arbitration – A Report from the 14th Annual ITA-ASIL Conference, Kluwer Arbitration Blog (Apr. 21, 2017) (citing to the 2015 Queen Mary/White & Case International Arbitration Survey).

[11] Catherine A. Rogers, Gamblers, Loan Sharks & Third-Party Funders, in Ethics in Int’l Arbitration 177 (OUP 2014); Pia Eberhardt & Cecilia Olivet, Profiting from Injustice: How Law Firms, Arbitrators and Financiers are Fueling an Investment Arbitration Boom 57 (2012) [hereinafter TNI’s Profiting from Injustice].

[12] Willem H. van Boom,Third-Party Financing in International Investment Arbitration 30 (2011).

[13] De Bradandere & Lepeltak, supra note 7, at 5–6.

[14] ICCA-Queen Mary Report, at 204-205.

[15] Frank J. Garcia, Third-Party Funding as Exploitation of the Investment Treaty System, 59 B.C.L. Rev. 2911, 2928-2931 (2018).

[16] OECD Scoping Paper, at 10.

[17] TNI’s Profiting from Injustice, at 57.

[18] Id. at 57-61.

[19] Christopher P. Bogart, Third-party financing of international Arbitration, in The Arbitration Review of the Americas 51 (2017).

[20] UNCITRAL, Report of Working Group III (Investor-State Dispute Settlement Reform) on the work of its thirty-fourth session (Vienna, 27 November – 1 December 2017), at 10.

[21] Luke Eric Peterson, A First Look at ICSID’s Proposed Rule Changes, IA Reporter (Aug. 03, 2018).