Third-party funding in international investment arbitration has drawn particular attention because international investment arbitration involves states. As international investment arbitration involves states as parties to the procedure, it is expected that the regulation of international investment arbitration be more transparent than international commercial arbitration, in order to respect the principle of good governance and government accountability, and rule of law. Consequently, the specifics of international investment arbitration are under more scrutiny.
Third-party funding in international investment arbitration raises numerous questions. With the goal of answering some of these questions, this master’s thesis analyses the systemic policy issues regarding third-party funding. The hypothesis are that first, TPF provides Claimants access to justice, second, that the existence of TPF has no impact on the jurisdiction of the arbitral tribunal and the admissibility of the claim, third, that the disclosure of TPF is not mandatory under arbitration rules but should be regulated, and fourth, that TPF has an impact on costs that are recovered by successful claimants.
The master’s thesis analyses systemic policy issues raised by TPF, with special emphasis on access to justice for Claimants that cannot bear the costs of arbitration. Furthermore, the analysis is focused on the question of jurisdiction and admissibility in international investment arbitration. Moreover, it is important to highlight the issue of disclosure of the identity of funders and the disclosure of the funding agreement because of the potential conflict of interests of arbitrators and because of the security for costs. These aspects differ in some ways to international commercial arbitration, and thus, deserve special attention. Finally, the master’s thesis also deals with the issue of the impact that TPF has on the costs of the international investment arbitration proceedings.
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