"Tempering the Gambler's Nirvanna"  : A Review into to the issues and regulation of Third Party Funding in Investment Treaty Arbitration

Sammanfattning: Third party funding (TPF) is a method of financing legal proceedings, in which a party not directly connected to the proceedings funds one of the disputing parties, usually in return for a percentage of the final monetary settlement. The interests behind TPF are that the funded party will have the resources to pursue their claim, while the funder will be able to profit from a percentage of the final settlement. Traditionally, within common law-systems, TPF was excluded through application of the common law torts of “Champerty and Maintenance”.[1] However, in the second half of the 20th century, many common law systems[2] abolished the torts of “Champerty and Maintence”.[3]This effectively opened up TPF as a valid litigation option for many resource poor litigants and birthed a niche industry of litigation financiers[4]. There is debate on TPF in general, with some believing that it allows legal recourse to include those that do not have the means to reasonably finance and confront legal wrongs imposed on them.[5]Others state that there is a danger of letting the funder interests supersede the claimant’s, as exemplified by some retaliatory cases[6] proceeding the Chevron v Ecuador arbitration, in which the funders had veto power over such aspects as the choice of attorneys and priority in the disbursement of a monetary award.[7] However, issues with the general system of TPF is not the focus of this thesis. Instead, focus will be on the issues it brings to the system of investment arbitration. While its operation is largely the same as within national jurisdictions, it does have the potential for damage of distinct principles and procedure of investment arbitration.  At first look, TPF seems to complement the system of arbitration as a whole. If one considers that, at its core, arbitration is a user determined dispute settlement system, then questions of funding should be determined by the parties themselves. This may suggest that due to its emphasis on “Party Autonomy”, TPF is more aligned with arbitration than it is with court-based litigation, where the principles of justice and fairness take a more preferential role. Nevertheless, “Party Autonomy” is not the sole principle of arbitration and does not mean that TPF is harmonious with either general arbitration or in particular investment arbitration. There is the general concern that a funder can actively change the process and end result of a dispute. This is seen through their influence over the funded party. As a funder will have a direct economic control over the funded party, they can dictate, as part of the funding agreement, outcomes such as early settlement, litigation strategies etc.[8] The choice of approach, and it is submission to a third party, however, is squarely within party autonomy and does not raise any fundamental concerns. What is concerning is affected parts of process that are out with party autonomy. One can see below that TPF can affect general trends and principles of arbitration, i.e. transparency and confidentiality , while also conflicting with core aspects of procedure such as jurisdiction and impartiality. This concern has given way to calls for regulation of TPF within the academic and global community. What was traditionally a “legal no mans land”[9] for investment arbitration, with little regard given to regulation, has now had extensive academic commentary and State reactions to regulating TPF. Yet, comprehensive regulation of TPF remains rare and piecemeal within the arbitral world. The majority of jurisdictions and arbitral institutions, while aware of the issues, have made no serious effort to remedy through regulation. That being said, there has been some work done in three distinct areas of regulation: (i) National laws (ii) Trade/Investment Treaties and (iii) Arbitral Rules. Each area’s success however can be described as mixed.   Therefore, the topic of this thesis is to first explore the potential issues of TPF and investment arbitration and then to examine and analysis the response to these issues through regulation. [1] Steyn LJ, in Giles v Thompson [1993] 3 All ER 321 at 328, explained the doctrines thusly: “In modern idiom maintenance is the support of litigation by a stranger without just cause. Champerty is an aggravated form of maintenance. The distinguishing feature of champerty is the support of litigation by a stranger in return for a share of the proceeds.” [2] In Civil law systems, unless TPF was not expressly excluded,  was mostly allowed. [3] For example see s.14(2), Criminal Law Act 1967 (England and Wales) or Maintenance, Champerty and Barratry Abolition Act 1993 (NSW, Australia) [4] There is now several prominent litigation financing companies such as: Burford Capital Ltd., Harbour Litigation Funding, IMF Bentham and Longford Capital. For a more in-depth review of the industry in general see Hancok, B, ‘Who Rules the World of Litigation Funding? ’March 30, 2017 , The American Lawyer. [5]Chen AD (2013), 'A Market For Justice: A First Empirical Look At Third Party Litigation Funding', at 1075 [6] Chevron Corp. v. Donziger, 800 F. Supp. 2d 484 (S.D.N.Y. 2011) [7] U.S. Chamber Institute for Legal Reform (2018), “Third Party Litigation Funding” [8] Shaw G (2017), ‘Third-party funding in investment arbitration: how non-disclosure can cause harm for the sake of profit’, at 12 [9]  Van Boom WH (2011), ‘Third-Party Financing in International Investment Arbitration’, at 5