Published 11 June 2018
The issues of security for costs and of disclosure of third-party funders remain heavily debated questions. This paper analyses closer the approach taken by the Tribunal in Eskosol S.p.A. in liquidazione v Italian Republic (hereinafter "Eskosol v. Italy") when it issued Procedural Order No. 3 (Decision on Respondent's Request for Provisional Measures).
The approach followed by the Tribunal chaired by Jean Kalicki (hereinafter known as the "Kalicki approach") is of interest for two notable reasons:
- The first is that it seems to disjoin the question of security for costs from the question of disclosure/presence of the third-party funder by following a two-step approach.
- The second is that it constructs the circumstances which could be labelled as the "normal circumstances" - i.e. is when there are no allegations of a relationship between an arbitrator and a third-party funder or objections to the tribunal's jurisdiction - under which there is no particular reason for requesting disclosure of the third-party funder.
The two-step "Kalicki approach" - which was arguably also influenced by the twofold request of the Respondent Italy - leads to a voluntary disclosure of information necessary in view of an optimal, or at least acceptable, claimant's representation. Moreover, it also leads to a situation which is optimal, or at least acceptable, from the point of view of the respondent's representation.
Footnotes omitted from this introduction.