Available in Russian
Authors: Anastasiya Shatalova, Ilya Lifshits
DOI: 10.21128/2226-2059-2022-2-113-131
Keywords: third-party funding; investment disputes; access to justice; third-party funder; investor-state dispute settlement (ISDS)
Since 2017 the UNCITRAL Working Group III has been working on reforming the investor-state dispute settlement system. One of the initiatives in this project is the development of draft provisions on third-party funding. Such funding constitutes a challenge to the investment dispute resolution system since third parties get an opportunity to use the system to earn a substantial profit and such funding may increase the number of frivolous claims against states. Rules of many arbitral institutions have been amended to require disclosure of a third-party funder or the provisions of a funding agreement. However, disclosure alone may not be sufficient to remedy the adverse effects of funding a case by a third party who does not participate in the proceedings. The UNCITRAL Secretariat's Draft provisions offer both an outright prohibition of this funding and various models for limiting it. The authors on the base of doctrinal sources and general scientific and specialized research methods critically assess the models proposed by the Secretariat and suggest their own vision of the regulation of third-party funding in investment disputes. The authors argue that third party finding should be allowed only in two situations: non-profit funding and funding of small and medium-sized enterprises. This approach would arguably help to avoid vague wording as well as varying interpretations by arbitrators of the provisions of the current UNCITRAL Secretariat's draft provisions on the allowed types of third-party funding of financing. At the same time this approach would not violate the right to access to justice of certain categories of investors. The authors believe that the provisions developed by states’ delegations under the auspices of UNCITRAL could become a universal model for arbitral institutions engaged in ISDS and for inclusion in the text of international investment treaties.
About the authors: Anastasiya Shatalova – Master of Private International Law, Lawyer at EDAS Law Bureau, Moscow, Russia; Ilya Lifshits – Doctor of Sciences in Law, Professor, Russian Foreign Trade Academy, Moscow, Russia.
Citation: Lifshits I., Shatalova A. (2022) Tretiy lishniy? Finansirovanie tret’ey storonoy v investitsionnykh sporakh: razravotki YUNSITRAL [Three is none? Third-party funding in investment disputes: The UNCITRAL working document]. Mezhdunarodnoe pravosudie, vol. 12, no. 2, pp. 113–131. (In Russian).
References
Brekoulakis S., Rogers C. (2019) Third-Party Financing in ISDS: A Framework for Understanding Practice and Policy. Academic Forum on ISDS Concept Paper, no. 11. Available at: https://www.jus.uio.no/pluricourts/english/projects/leginvest/academic-forum/papers/papers/13-rogers-brekoulakis-tpf-isds-af-13-2019-version-2.pdf (accessed: 08.05.2022).
Budylin S.L. (2007) Neprinuditel’nye sdelki v rossiyskom prave [Non-compulsory transactions in Russian law]. Zhurnal rossiyskogo prava, no. 3, pp. 56–66. (In Russian).
Chaisse J., Eken C. (2020) The Monetization of Investment Claims Promises and Pitfalls of Third-Party Funding in Investor-State Arbitration. Delaware Journal of Corporate Law, vol. 44, no. 2–3, pp. 113–166.
Fifi J. (2021) Access to Justice in International Investment Law through Integrative Legal Thinking. Available at: https://www.researchgate.net/publication/349354774_Access_to_Justice_in_International_Investment_Law_through_Integrative_Legal_Thinking (accessed: 08.05.2022).
Garcia F. (2018) Third-Party Funding as Exploitation of the Investment Treaty System. Boston College Law Review, vol. 59, no. 8, pp. 2911–2934.
Giorgetti C., Wahab M.A. (2019) A Code of Conduct for Arbitrators and Judges. Academic Forum on ISDS Concept Paper, no.8. Available at: https://www.jus.uio.no/pluricourts/english/projects/leginvest/academic-forum/papers/papers/giorgetti-wahab-code-of-conduct-af-isds-paper-8-final--14-oct-2019-1.pdf (accessed: 08.05.2022).
Gorlenko A.A., Burova E.S. (2017) Arbitrazh (treteyskoe razbiratel’stvo) v Rossii. Novaya era i novye vyzovy [Arbitration in Russia. New era and new challenges]. Zakon, no. 9, pp. 77–90. (In Russian).
Güven B.S, Garcia F.J., Lockhart K.M.F., Garcia M.R. (2020) Chapter 14: Regulating Third-Party Funding in Investor-State Arbitration through Reform of ICSID and UNCITRAL Arbitration Rules: Holding Global Institutions to Their Development Mandates. In: Anderson A.M., Beaumont B. (eds.) The Investor-State Dispute Settlement System: Reform, Replace or Status Quo? Alphen aan den Rijn: Wolters Kluwer Law International, pp. 287–318.
Kadarisman A. (2019) Disclosure of Third-Party Funding Arrangements and the Existence of Third-Party Funders in International Investment Arbitration. Indonesian Journal of International Law, vol. 17, no. 1, pp. 91–112.
Melchionda L., Crivellaro A. (2018) Disclosure and Conflicts of Interest in Relation to Third-Party Funding. BCDR International Arbitration Review, vol. 5, no. 2, pp. 281–306.
Moseley S.E. (2019) Disclosing Third-Party Funding in International Investment Arbitration. Texas Law Review, vol. 97, no. 6, pp. 1181–1199.
Nieuwveld L.B., Sahani V.S. (2017) Chapter 1: Introduction to Third-Party Funding. In: Nieuwveld L.B., Sahani V.S. (eds.) Third-Party Funding in International Arbitration, Alphen aan den Rijn: Wolters Kluwer Law International, pp. 1–20.
Sahani V.S. (2021) Global Laboratories of Third-Party Funding Regulation. American Journal of International Law Unbound, vol. 115, pp. 34–39.
Trefilov A.A. (2020) Advokatura v Likhtenshteyne [Advocacy in Liechtenstein]. Advokatskaya Praktika, no. 2, pp. 55–62. (In Russian).
Trusz J. (2013) Full Disclosure? Conflicts of Interest Arising from Third-Party Funding in International Commercial Arbitration. Georgetown Law Journal, vol. 101, no. 6, pp. 1649–1682.