Global International Arbitration Centers Discuss Growth of Third Party Funding

Third party funding is now a global phenomenon, due mainly to its usage in international arbitration matters. But what exactly do the international arbitration institutions think of this rapidly-evolving Legal Services instrument? Read on to find out…

As reported in Vannin Capital’s latest Funding in Focus series, global arbitral institutions are continuing to recognize the lightning-fast growth of the industry. International arbitration centers from Spain to Brazil to Sweden to Colombia have all acknowledged growth in both the number of third party-funded cases being filed, as well as the enhanced awareness amongst counsel of the industry and its evolution.

Two interesting drivers of this growth: an uptick in third party funding in investor-state disputes over the last five years, as well as the emergence of defense-side funding. Those two can even overlap, as was the case in Philip Morris v. Uruguay. The Hong Kong International Arbitration Centre predicts that defendants will continue to leverage third party funding in increasing numbers.

Some institutions – like the London Court of International Arbitration – have adopted a ‘wait and see’ approach to third party funding, by choosing not to provide any comprehensive viewpoint on the practice. Other arbitration centers, however, including those in Paris and Dubai, have elected to take a proactive stance on the matter. The ICC France even went so far as to issue a best practice guide for industry adoption. It’s worth noting that on the topic of disclosure, general consensus seems to be that a funder’s identity should be disclosed in order to avoid any potential conflicts of interest, yet the funding agreement need not be disclosed. Of course, specific rules for each jurisdiction will vary.

As pertains to another key issue of note – security for costs – no major arbitral institution has yet declared that the existence of a third party funder is grounds for an automatic security for costs application. Hong Kong has stated that courts ‘may’ take the existence of third party funding into consideration, but are under no obligation to issue a security for costs order. In sum, there seems to be a split amongst institutions on how best to handle the costs issue, with some openly declaring that third party funding should not automatically translate into a costs order, and others preferring a more hands-off approach, leaving it to the courts’ discretion.

As third party funding continues to evolve globally, arbitral institutions will evolve in tandem, given that the practice is so embedded in international arbitration, especially investor-state disputes. It will be interesting to see how each individual arbitral center responds to the most pressing issues relating to the rise of third party funding. At this point at least, there seems to be broad acceptance, general agreement on best practices, along with some differentiation on how proactive to be when issuing rules or guidelines.