Published 18 December 2023
Third-party funding (TPF) has become a way of doing business, as a funding mechanism for primarily indigent litigants or litigants aiming to preserve their business capital while pursuing a dispute and as an investment mechanism for law firms with a diverse case portfolio as well. International institutions deliberating on dispute resolution mechanisms and strategies have been evincing interest in discussing TPF in international arbitration. To that extent, this research is premised upon the proposition that TPF serves the cause of access to justice, and it would serve the cause of justice to ensure that the TPF is regulated. This article sets out to prove this hypothesis by suggesting an appropriate arbitral rules regime that could ensure the presence of TPF as well as offer an effective regulation of the same through an appropriate regime on disclosures, independence and impartiality, thereby assuring transparency while fostering access to justice. Following the introduction, the first part of this research discusses the wherewithal of TPF, access to justice through TPF, and the importance of TPF for environmental disputes. Within the second part, there is a discussion on the characterization of the claimant in environmental disputes and the ISDS jurisprudence on environmental disputes. The third part of this research showcases the PCA’s Optional Rules related to arbitration of environmental rules as being a viable mechanism to enhance access to justice via multi-party arbitrations while ensuring the regulation of TPF through an effective transparency and disclosures-related regime. The research concludes with a few suggestions for future reform efforts towards enhanced value.
This paper will be part of the third TDM Special Issue on "International Investment Arbitration - Environmental Protection and Climate Change Issues". More information here www.transnational-dispute-management.com/news.asp?key=1893