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Published on January 22nd, 2018 | by Olga Papadopoulou

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Rebalancing the Third-Party Funding Equilibrium in Investment Treaty Arbitration

Kluwer Arbitration Blog

Access to Justice: Rebalancing the Third-Party Funding Equilibrium in Investment Treaty Arbitration

Ylli Dautaj (Penn State Law) and Bruno Gustafsson (Stockholm University)/November 18, 2017

Third-party funding remains a hot topic in arbitration, which is understandable considering its complexity and that its accompanying issues often have major implications for arbitral procedure. This fall, the ICCA-Queen Mary Task Force on third-party funding in international arbitration released its “draft,” touching upon a number of contemporary issues vis-á-vis third-party funding, all of which ought to be of high interest to practitioners, scholars, and students alike.

The third-party funding market exceeds billions of dollars and various actors are involved by way of funding, getting funded, and as brokers/intermediaries.1) One of the primary reasons for seeking third-party funding is the lack of “access to justice.” In the context of third-party funding, “access to justice” refers to all tools and resources that implicate a party’s opportunity to defend or enforce a legal right. In other words, lack of “access to justice” can be roughly equated to a lack of resources to litigate properly. Notwithstanding, this reason alone is changing and third-party funding is more and more being used by claimants to allocate risks and costs while continuing its business operations with a steady cash flow. However, with competition being the hallmark of the western economy, businesses being able to compete while simultaneously litigating for justice is ipso facto the essence of real “access to justice.”

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