Researching Third-Party Funding in Investor-State Dispute Settlement

By Xin (Sherry) Chen

Xin (Sherry) Chen* is the Associate Director of Collection Strategy at the Biddle Law Library, University of Pennsylvania Carey 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 the Asian Law Interest Group. She holds a B.A. from Shanghai International Studies University, China, and both a J.D. and a M.S. in Library Information Science from the University of Michigan, Ann Arbor. She is admitted to practice law in the State of New York. The author would like to thank Alex Bado, Graduate Fellow, Law & Justice Program, Boston College Law School, for his editorial support and contributions.

Published March/April 2024 See the Archive Version!

1. Introduction

Third-party litigation funding is a rapidly expanding industry composed of speculative investors who finance legal claims in several 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 settlements. 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 is the main form of ISDS. It differs from private commercial arbitration in several 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) that 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,[6] and a 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.[7] 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, Europe, and Africa.[8] 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.[9] 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.[10] 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.[11] 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.[12] The third-party funding industry includes specialized litigation firms, insurance companies, investment banks, and hedge funds.[13] 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%.[14] 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 the 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.[15] 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. Data, Statistics, and Analysis of Investment Policies

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 number 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,[16] 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”) is truly a “one-stop shop” with five sets of tools for all matters of investment policy research. Both primary and secondary resources are collected by the Hub:

  • Investment Policy Monitor tracks the latest policy trends and initiatives around the world;
  • Investment Policy Review provides a detailed review of the investment policies of more than 50 developing countries and countries with economies in transition;
  • Investment Policy Framework guides policymakers to formulate their own national investment policies or investment agreements with core principles;
  • Investment Laws Navigator is the world’s most comprehensive online database of national investment laws and regulations;
  • Investment Dispute Settlement Navigator provides information for all publicly available ISDS cases. Based on newly released statistics, as of July 31, 2023, at least 35 ISDS cases were brought new in 2023; and the total number of known investment treaty arbitrations has climbed to 1,303. This number does not include cases that are kept completely confidential.

In addition to the above tools, UNCTAD publishes IIA Issues Note, a series of short online publications that “profile a topical IIA-related legal and policy question” to promote a “handy and policy-oriented discussion.” Apart from the Investment Policy Hub, UNCTAD has a robust statistics branch that provides detailed data, statistics, and analysis on foreign direct investment. Working Group III of the United Nations Commission on International Trade Law (UNCTRAL) is currently working on the topic 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 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 July 2023, the Secretariat has just released draft provisions on procedural and cross-cutting issues (A/CN.9/WG.III/WP.231) related to possible reform of the ISDS system. In addition, the Working Group III’s website provides other online resources and a bibliography of recent writings related to investor-state dispute settlement. 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 addresses 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, the 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, was 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 of 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 detail. 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.[17] 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 on a project to establish a Multilateral Investment Court as a permanent body to decide investment disputes. In November 2022, the European Parliament Research Service published an in-depth report about the current status of Investor-State Protection Disputes Involving EU Member States. The report reveals that while the number of ISDS cases involving EU Member States and the amounts claimed peaked from 2010 to 2017, the trend has slowed down in recent years. In July 2022, the European Parliament adopted a report on responsible private funding of litigation, also known as the “Voss Report” after the name of the rapporteur Axel Voss, which provides recommendations for EU-wide harmonization of third-party funding regulation through a proposal for a directive on the issue. The report highlights, inter alia, that third-party funding “is a booming phenomenon in investment arbitration that multiplies the number and the volume of claims of private investors against States.”[18]

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.”[19] Tools and resources that may aid your research on that 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. The most recent review, Review of 2021 Investor-State Arbitration Decisions: Insights for IIA Reform, reveals that “about 95 percent of the reviewed decisions concerned claims based on old-generation international investment agreements (IIAs) signed between 1980 and 2010.” 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 2,800 BITs and 450 TIPs. For most 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” function with more sophisticated searching and filtering options. Based on data from UNCTAD’s Investment Dispute Settlement Navigator, last updated on July 31, 2023, the most contested instruments in ISDS proceedings are:

  • The Energy Charter Treaty (1994): 158 Cases
  • NAFTA (1992): 91 Cases
  • Argentina – United States of America BIT (1991): 21 Cases
  • Netherlands – Venezuela, Bolivarian Republic of BIT (1991): 20 Cases
  • USMCA (2018): 19 Cases
  • OIC Investment Agreement (1981): 19 Cases
  • Ecuador – United States of America BIT (1993): 16 Cases
  • Russian Federation – Ukraine BIT (1998): 16 Cases
  • CAFTA – DR (2004): 16 Cases
  • Turkey – Turkmenistan BIT (1992): 12 Cases
  • Czech Republic – Germany BIT (1990): 11 Cases
  • Peru – United States Free Trade Agreement (2006): 10 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 structures 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 light 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 analyses for free in its database.

4.2. Arbitration Rules

Arbitration 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 the end of fiscal year 2023. 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 (last updated in March/April 2022).

5. Researching Third-Party Funders and Funded Cases

5.1. Funders

Due to the lack of transparency, little is known about the big players and specifics of the third-party funding industry. NGOs 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 “speculating from injustice.”[20] Some of the big players identified by the 2012 report are still active today:

A list of about 50 “Leading Third-Party Funders and Third-Party Funding Brokers” is compiled by the law firm Aceris Law. If the third-party funder is a public company, you can find detailed information about the company’s operation and finances through their regulatory filings. For example, Buford Capital is a publicly traded company on the New York Stock Exchange (NYSE Code: BUR), the London Stock Exchange (LSE Code: BUR), and the London AIM Stock Exchange (AIM Code: BUR). To comply with its regulatory reporting duties as a public company, Buford Capital discloses its financial statements and annual reports regularly. Omni Bridgeway (ASX Code: OBL) is also a publicly traded company listed on the Australian Stock Exchange. You can look up detailed information about Omni Bridgeway on the ASX website. Those filings and reports may also be available 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 Capital’s annual reports for the past 10 years can be found below:

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 about 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.

As a more general strategy, if you have the name or some information about a certain case and want to find out more about it, UNCTAD’s Investment Dispute Settlement Navigator is a great 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 Decisions in ICSID Cases 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.[21] 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.”[22] 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 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. Working Group III is well aware of such potential conflicts of interest issues that may arise between third-party funders and the arbitrators or candidates considered for appointment. Draft Article 11 of its code of conduct proposes to include within the mandatory disclosures “any financial, business, professional, or personal relationship in the past five years with […] [a]ny entity identified by a disputing party as having a direct or indirect interest in the outcome of the IID proceeding, including a third-party funder” (FN: draft article 11).[23]

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. As authors commenting on recent arbitral cases South American Silver v. Bolivia, Cortec Mining v. Kenya and Churchill Mining, and Planet Mining v. Indonesia point out such cases raise doubts about funders assertions regarding their alleged robust due diligence to fund meritorious claims. Indeed, the cases cited above highlight overly inflated investor claims and substandard or even illegal investor behavior.[24]

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. Similarly, another author argues that despite purported negative effects, full disclosure of funding agreements is not only important to ensure transparency of the arbitral process but also required as it contributes to the legitimacy of investment arbitration which has the specific nature of involving States and Public International Law.[25]

7. Reform Efforts

In light of concerns for transparency, independence, and conflicts of interest in ISDS proceedings, investment treaties, and free trade agreements have begun 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). A few arbitration institutions have issued rules explicitly defining or addressing third-party funding. For instance, as one of the early examples, 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 currently effective Investment Arbitration Rules, originally issued by the Singapore International Arbitration Centre (SIAC) in 2017, 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 just entered into force on January 1, 2024. Article 48 expressly requires, “Once a third-party funding agreement is concluded, the funded party shall communicate to the Arbitration Court, without any delay, the existence of the third-party funding arrangement, the financial interest therein, the name and address of the third-party funder and other relevant information.” ICSID has recently concluded a lengthy amendment process to update its rules and regulations. The newly amended ICSID Arbitration Rules came into effect on July 1, 2022. Rule 14 specifically regulates “Notice of Third-Party Funding,” requiring that parties disclose “the name and address of any non-party from which the party, directly or indirectly, has received funds for the pursuit or defense of the proceeding ….” The article further imposes disclosure of the identity of the funder and its controlling entities “upon registration of the Request for arbitration, or immediately upon concluding a third-party funding arrangement after registration.” The disclosed information will then be transmitted to the proposed arbitrators to assess potential conflicts of interest and related mandatory declarations. This reform has been received by the public with mixed feelings. On the one hand, whereas funders acknowledge a step toward more transparency, they criticize a reform that probably went a little too far by granting the arbitrators the power to order disclosure of the funding agreement.[26] On the other hand, it is likely to be criticized as a limited reform that lacks ambition, serving as a pretext to halt a more comprehensive discussion on third-party funding regulation. Information about ICSID’s amendment process, including working papers, proposals, background documents, public comments, seminars, and events can be found on a resource page, ICSID Rules and Regulations Amendment. Proposed Rule 21 defines third-party funding and creates an ongoing 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 a detailed explanation of 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 arbitration 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.[27]

8. Selected Bibliography

  • Anthea Roberts & Taylor St John, Complex Designers and Emergent Design: Reforming the Investment Treaty System, 116 Am. J. Int’l L. 96 (2022).
  • Mary Zhao, Investor-State Dispute Settlement Reform: Reconsidering the Multilateral Investment Court in the Context of Disputes Involving Intellectual Property Law, 44 Colum. J.L. & Arts 545 (2021).
  • Julien Chaisse & Can Eken, The Monetization of Investment Claims Promises and Pitfalls of Third-Party Funding in Investor-State Arbitration, 44 Del. J. Corp. L. 113 (2020).
  • Damon Vis-Dunbar, ICSID Under the New Rules: A Conversation with Meg Kinnear, Icsid Secretary-General, 31 Am. Rev. Int’l Arb. 21 (2020).
  • Eric De Brabandere, Reforming Investment Law and Arbitration and the “New Economic World Order:” Between Myth and Reality, 114 Am. Soc’y Int’l L. Proc. 67 (2020).
  • 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).
  • Sahani Victoria, Smith Mick, et al., Third-Party Financing in Investment Arbitration, in Contemporary and Emerging Issues on the Law of Damages and Valuation in International Arbitration (2018).
  • Sahani Victoria, Global Laboratories of Third-Party Funding Regulation, Cambridge University Press (05 January 2021).
  • Alessandra Arcuri, The Great Asymmetry and the Rule of Law in Trade and Investment Agreements, in Yearbook on International Investment Law & Policy 2018 (Oxford University Press).
  • Alessandra Arcuri & Francesco Montanaro, Justice for All? Protecting the Public Interest in Investment Treaties, 59 B.C.L. REV. 2791 (2018).
  • Rachel Denae Thrasher, Expansive Disclosure: Regulating Third-Party Funding for Future Analysis and Reform, 59 B.C. L. Rev. 2935 (2018).
  • 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).
  • Christopher P. Bogart, Third-Party Financing of International Arbitration, in The Arbitration Review of the Americas 51 (2017).
  • Steven Ratner, International Investment Law Through the Lens of Global Justice, 20 J. Int’l Econ. L. 747 (2017).
  • J. Von Goeler, Third-Party Funding in International Arbitration and its Impact on Procedure (Kluwer Law International 2016).
  • 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).
  • Frank J. Garcia et al., Reforming the International Investment Regime: Lessons from International Trade Law, 18 J. Int’l Econ. L. 861 (2015).
  • Catherine A. Rogers, Gamblers, Loan Sharks & Third-Party Funders, in Ethics in International Arbitration 177 (OUP 2014).
  • Anthea Roberts, Clash of Paradigms: Actors and Influences Shaping the Investment Treaty System, 107 Am. J. Int’l L. 45 (2013).
  • Eric De Brabandere & Julia Lepeltak, Third Party Funding in International Investment Arbitration (Grotius Ctr. Working Paper No. 2012/1, 2012).
  • Pia Eberhardt & Cecilia Olivet, Profiting from Injustice: How Law Firms, Arbitrators and Financiers are Fueling an Investment Arbitration Boom (2012).
  • D. Gaukrodger & K. Gordon, Investor-State Dispute Settlement: a Scoping Paper For The Investment Policy Community (OECD Working Papers on International Investment, 2012/03, 2012).
  • 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).
  • Willem H. van Boom, Third-Party Financing in International Investment Arbitration 30 (2011).
  • Columbia Center on Sustainable Investment: Investment Law & Policy.
  • Boston College Law School’s The Law and Justice in the Americas Working Paper Series.

[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] See e.g., The Report of the Special Rapporteur, David R. Boyd, on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy, and sustainable environment to the General Assembly, Annex 1: Twelve Largest Known ISDS Awards.

[7] 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).

[8] Nigeria and Sierra Leone have recently passed arbitration legislation including provisions on third-party funding.

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

[10] Id. at 5–8.

[11] Id. at 5.

[12] 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).

[13] 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.

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

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

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

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

[18] European Parliament, Report with Recommendations to the Commission on Responsible Private Funding of Litigation, Recital F (2022).

[19] OECD Scoping Paper, at 10.

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

[21] Christopher P. Bogart, Third-Party Financing of International Arbitration, in The Arbitration Review of the Americas 51 (2017).

[22] UNCITRAL, Report of Working Group III (Investor-State Dispute Settlement Reform) on the Work of its Thirty-Fourth Session, A/CN.9/930/Rev.1, at 10 (Vienna, 27 November – 1 December 2017).

[23] UNCITRAL, Possible Reform of Investor-State Dispute Settlement (ISDS): Draft Codes of Conduct and Commentary, A/CN.9/WG.III/WP.223, Article 10 (23-27 January 2023, Vienna).

[24] Brooke Guven, Lise Johnson, Suzy Nikièma, et al., From transparency to prohibition: UNCITRAL WGIII considers options to regulate third-party funding, IISD (2021).

[25] Eric De Brabandere, Mercantile Adventurers? The Disclosure of Third-Party Funding in Investment Treaty Arbitration, Grotius Centre Working Paper 2016/059-IEL, Leiden Law School Research Paper (October 3, 2016).

[26] Irene Lee Wing Yun, Olivia de Patoul, The new ICSID rules came into force on 1 July 2022. What does these mean for funders?, Lexology (2023).

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