3 Aug 2021
Books/ Book Chapters
Third-Party Funding in International Arbitration – Current Status, Development and Cases Involving Mining Disputes
Book chapter by Boris Biksadsky, Stefano Paolo Catelani and Vernon T. Nava in Cory H. Kent, Shaheeza Lalani, Georgios Petrochilos, and Andreas R. Ziegler (Eds.), Social License and Dispute Resolution in the Extractive Industries, published by Brill Nijhoff (2021), pp. 11-37
This chapter reflects how third-party funding (TPF) functions in international commercial as well as investment arbitration. While drawing the way in which TPF is going to be developed in the near future, the chapter points out the basic problems associated with TPF in international arbitration. It analyses forms of financing available to international arbitration, the concept of TPF in general terms, its benefits and issues arising out of practice, and current regulation of TPF in international arbitration. It identifies challenges and presents recent amendments to such regulation. Furthermore, it focuses on the core concerns of TPF in international arbitration, namely the disclosure of TPF, the position of a third-party funder in the arbitral proceedings, and the allocation of the arbitration costs. The chapter seeks to demonstrate that the first step leading to settlement of the aforementioned concerns is to deal with the TPF disclosure (including the identity of the third-party funder and terms of the TPF agreement). Since a share of the mining disputes in international arbitrations is significant and use of TPF in these disputes is frequent and growing, the aforementioned concerns thus have serious implications on them. Therefore, the chapter discusses how the issue of TPF along with all its aforementioned concerns is tackled in the international arbitrations dealing with the mining disputes while testing what changes to the related legal regulation needs to be adopted in the future.