Third-Party Funding in International Arbitration: Is it Time for Some Soft Rules?

Abstract

As reflected in recent resounding cases, third-party funding plays an increasing role in international litigation and arbitration. While this development gives rise to many novel issues, and adds to existing ones such as the disclosure of conflict of interests, it is however still in need of a proper response from the legal community. In the first part of this article, an overview of three jurisdictions-England & Wales, the United States and France-will display some diversity and, perhaps, difficulty in addressing this (relatively) new phenomenon. The second and third parts will delve deeper into the particular issues raised by the existence of a third-party funding agreement, such as the crucial question of disclosure of such agreement, or the issue of liability for costs. The last part will conclude on the responses offered so far by the arbitration community to this challenge, and try to lay out a way forward.