Author: Duarte G. Henriques*
Published: November 2017
Costs and Damages
In June 2015, an arbitral tribunal chaired by Professor Julian Lew ordered the claimant to confirm whether its claim was being funded by a “third-party funder.” If so, the claimant was required to advise the tribunal and the respondent of the name and details of the funder and the nature of the arrangements, including whether, and to what extent, the funder would “share in any successes that the claimants could achieve in that arbitration.”
Whom exactly did the arbitral tribunal have in mind when making such an order? More precisely, what was envisaged with such an order? We can even go a little further and ask: with whom or what was the tribunal concerned with when making the order? We are obviously not concerned with making a reconstruction of the decision maker’s state of mind, but rather ascertaining what the possible realities of the subject matter of the order may have been. Indeed, the questions to be addressed are as such: who are the third-party funders and what is the nature of the third-party funding? Though this article will indeed address these questions soon, it may first be interesting to consider the concerns of the arbitral tribunal, which undoubtedly exist.
*Duarte G. Henriques is partner and founder of BCH Lawyers, Portugal, acting as arbitrator and counsel in investment disputes, banking & finance, corporate, commercial and construction disputes. He also specialises in third-party funding, and is member of the Task Force on Third-Party Funding in International Arbitration of the International Council for Commercial Arbitration (ICCA) & Queen Mary University of London Law School – London. The views here are attributed to the author only and do not reflect any discussion within – nor can be construed as attributed to – the ICCA Task Force.