Professor Catherine Rogers, Professor William W. Park and Professor Stavros Brekoulakis
The Third-Party Funding Taskforce will systematically study and make recommendations regarding the procedures, ethics, and related policy issues relating to third-party funding in international arbitration. The Task Force is comprised of representatives drawn from among all relevant stakeholders and interested members of ICCA. Its work will be presented in a series of White Papers and a number of public colloquia to be hosted at Queen Mary’s Centre for Commercial Law Studies, London.
The ICCA-Queen Mary Task Force on Third-Party Funding in International Arbitration met on 12 February 2015 in London. The meeting reviewed draft reports from the sub-committees on costs and security for costs, on TPF best practices, on investment arbitration and conflict of interests for arbitrators. It was decided that a new sub-committee will be set up to look into the issue of disclosure of TPF agreements in particular. It was further decided that the reports from all sub-committees will be finalised and integrated into a single comprehensive report to become public by the end of 2015.
A half-day conference on third-party funding was hosted by the Task Force on 9 March at Frankfurt University. The conference was open to all ICCA Members, and included a mock hearing showcasing issues arising in connection with third-party funding arrangements.
The Joint ICCA-Queen Mary Task Force on Third-Party Funding cordially invites ICCA members to attend a half-day conference on Third-Party Funding in Frankfurt on 9 March 2015. The event will include an update on progress made by the Task Force, as well as a mock hearing showcasing issues arising in connection with third party funding arrangements.
Date: 9 March 2015
Venue: Frankfurt University (Goethe-Universität Frankfurt am Main, Campus Westend, Grüneburgplatz 1, the number and location of the room will be announced shortly)
11:30 to 12:00 Welcome - Update of the progress made by the ICCA-Queen Mary Task Force on Third-Party Funding
12:00 to 12:45 Disclosures and Conflicts – To what extent does funding have to be disclosed and what consequences may a disclosure have (Mock Part 1)
12:45-13:30 Lunch (Mensa of the University)
13:30 – 14:30 Security for Costs and Cost Decisions (Mock Parts 2 and 3)
14:30 – 15:00 – Open Discussion
15 :00-15 :15 Closing
Anna Joubin-Bret, Cabinet Joubin-Bret, Paris
Sabine Konrad, McDermott Will & Emery Rechtsanwälte Steuerberater LLP, Frankfurt
(Co-chairs of the Task Force’s Subcommittee on Investment Arbitration)
Cast of the Mock Hearing:
Sole Arbitrator: José Rosell, Hughes Hubbard and Reed LLP, Paris
Counsel for Claimant: Amy Kläsener, Shearman & Sterling LLP, Frankfurt
Counsel for Respondent: Joachim Knoll, Lalive, Geneva
Claimant: Joseph Marx, McDermott Will & Emery Rechtsanwälte Steuerberater LLP, Frankfurt
Susan Dunn, Harbour Litigation Funding Limited, London
Alain Grec, La Française IC Fund, SICAV-FIS, Luxembourg
Respondent State: Duarte Henriques, BCH LAWYERS, Lisbon
by Stavros Brekoulakis, Task Force Rapporteur
The ICCA-Queen Mary Task Force on Third-Party Funding in International Arbitration convened its second meeting on 6 April 2014 in Miami. At the meeting, the Task Force identified a number of action items concerning important TPF issues. Among the topics designated for action by the Task Force are development of disclosure standards for TPF, and a special initiative to explore the impact of TPF in investment arbitration. The Task Force is also working to develop guidelines on security for costs and costs allocations in arbitration involving TPF arrangements, as well as producing best practices guidelines for funders. These and other topics were presented to and discussed with interested ICCA members at a luncheon on 8 April 2014.
According to the statistics of one funder, at least 60% of all ICSID cases enquired about (but not necessarily sought or obtained) third-party funding before their cases were lodged. The 2014 revision of “IBA Guidelines on Conflicts of Interests in International Arbitration” arguably included wording that would require third party funding to be disclosed for the purposes of arbitrator conflicts. – Despite this decisions by tribunals (notably in treaty-based arbitrations) remain a rarity.
The ICCA and Queen Mary jointly created a Task Force on Third-Party Funding in International Arbitration in 2014. The Task Force will systematically study and make recommendations regarding the procedures, ethics, and related policy issues relating to third-party funding in international arbitration. The Task Force is comprised of representatives drawn from among all relevant stakeholders, including arbitration practitioners, funders, government representatives and academics. The Task Force is co-chaired by ICCA Governing Board Member William “Rusty” Park and Catherine Rogers, the Professor of Regulation, Ethics and the Rule of Law at Queen Mary, and Professor of Law and International Affairs at Penn State Law, and Professor Stavros Brekoulakis, Professor of Commercial Law and International Arbitration at Queen Mary. Lise Boseman, Executive Director of ICCA, will serve ex officio. The task force has created a number of sub-committees, including on conflicts, costs and on investment arbitration.
In order to enable a frank and public debate about the salient issues, the Task Force’s sub-committee on investment arbitration is organising a conference on 9 March 2015 in Frankfurt at the University of Frankfurt (the name of the building will be announced shortly). The conference will up-date participants on the progress made so far. In addition, it will show-case the relevant arguments in a mock-hearing. The fact pattern is based on a number of recent decisions by tribunals.