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Visualizing the Role of International Rule of Law in “Not-For-Profit Funding” in Investment Arbitration

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Blurry Boundaries of Public and Private International Law

Abstract

Contemporary developments in international arbitration have discussed the necessity of ensuring adherence to the rule of law in various facets of arbitration. International institutions deliberating on dispute resolution mechanisms and strategies have been evincing interest in discussing claim funding in international arbitration. The Working Group III of the United Nations Commission on International Trade Law (UNCITRAL) is currently engaged with the access to justice (“ATJ”) rationale set forth by proponents of third-party funding in the context of an investor to state dispute settlement (“ISDS”). This chapter aims to discuss the potential overlap between the nascent practice of “not-for-profit third-party funding” (“TPF”) or “ideological funders” and the need to ensure the rule of law through disclosure in situations where TPF is identified. Although shrouded in mystery and less prominent compared to the traditional TPF, the author believes that the prevalence of not-for-profit funding is only set to increase in investment arbitration since a financial return on investment would not in usual circumstances be required to be given to that funder party. Through this chapter, the author will also attempt to define the contours of the rule of law in the context of TPF in arbitration and also elaborate upon the role of the rule of law in ensuring procedural fairness and natural justice in arbitration proceedings.

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Notes

  1. 1.

    Brabandere and Lepeltak (2012), pp. 379–398.

  2. 2.

    International Council for Commercial Arbitration (ICCA) (2018) Report of the ICCA-Queen Mary task force on third-party-funding in international arbitration. In: The ICCA Reports No. 4, p. 38. https://cdn.arbitration-icca.org/s3fs-public/document/media_document/Third-Party-Funding-Report%20.pdf. Accessed 6 Sep 2021. (ICCAQM Report).

  3. 3.

    Ibidem, 244.

  4. 4.

    Teinver S.A., Transportes de Cercanías S.A. and Autobuses Urbanos del Sur S.A. v. The Argentine Republic, ICSID Case No. ARB/09/1, Award (21 July 2017).

  5. 5.

    See footnote n. 1.

  6. 6.

    Ranjan (2016), pp. 115–142.

  7. 7.

    Van Harten (2010), pp. 627–657; Gaffney (2016), pp. 267–273; Reinisch (2016), pp. 291–307.

  8. 8.

    See, e.g., Waste Management, Inc. v. United Mexican States, ICSID Case No. ARB(AF)/00/3, Award (30 Apr 2004) 98, which states that “the minimum standard of treatment of fair and equitable treatment is infringed by conduct attributable to the State and harmful to the claimant if the conduct is arbitrary, grossly unfair, unjust or idiosyncratic, is discriminatory and exposes the claimant to sectional or racial prejudice, or involves a lack of due process leading to an outcome which offends judicial propriety—as might be the case with a manifest failure of natural justice in judicial proceedings or a complete lack of transparency and candour in an administrative process. In applying this standard it is relevant that the treatment is in breach of representations made by the host State which were reasonably relied on by the claimant.” See also Schill (2010), pp. 83–151.

  9. 9.

    See Austria-Georgia BIT (2001) art 5(3): “Due process of law includes the right of an investor of a Contracting Party which claims to be affected by expropriation by the other Contracting Party to prompt review of its case, including the valuation of its investment and the payment of compensation in accordance with the provisions of this Art by a judicial authority or another competent and independent authority of the latter Contracting Party.” See also ADC Affiliate Limited and ADC & ADMC Management Limited v. Republic of Hungary, ICSID Case No. ARB/03/16, Award (2 Oct 2006) 435 (ADC) wherein it has been stated that: “Some basic legal mechanisms, such as reasonable advance notice, a fair hearing and an unbiased and impartial adjudicator to assess the actions in dispute, are expected to be readily available and accessible to the investor to make such legal procedure meaningful. In general, the legal procedure must be of a nature to grant an affected investor a reasonable chance within a reasonable time to claim its legitimate rights and have its claims heard. If no legal procedure of such nature exists at all, the argument that “the actions are taken under due process of law” rings hollow.”.

  10. 10.

    Mike Campbell (Pvt) Ltd. and Others v. Zimbabwe, SADC (T) Case No. 2/2007, Decision (28 Nov 2008) 53. See also, Maniruzzaman (1998), p. 57; Reinisch (2012), pp. 271–304.

  11. 11.

    For example, it appears that Global Petroleum Group funded both Grenada and St Lucia in their efforts to defend against competing claims for access to oil reserves asserted by rival RSM. See also Honlet (2015), pp. 699–712.

  12. 12.

    Philip Morris Brands Sàrl et al. v. Oriental Republic of Uruguay, ICSID Case No. ARB/10/7.

  13. 13.

    Quasar de Valores SICAV S.A. et al. v. Russian Federation, SCC Case No. 24/2007, Award (20 July 2012).

  14. 14.

    Cremades Jr (2011), pp 17–18.

  15. 15.

    See footnote n. 1. “[…] It has also been said that this kind of funds… may be better qualified as donations rather than funding agreements, and the risks inherent in third-party funding, which we will address later, are not pertinent in this scenario. Nonetheless, it is clear that problems in respect of control over the proceedings and conflicts of interest, which we will discuss later, may also be applicable in the case of donations.”

  16. 16.

    Sahani VS (2017) Revealing not-for-profit third-party funders in investment arbitration. https://oxia.ouplaw.com/page/565. Accessed 5 Aug 2021. “[…]Not-for-profit funders are primarily motivated by goals other than turning a profit, such as creating a favorable precedent for future claims, defending state laws from challenges, gathering information about parties, or supporting or fighting against an industry….”

  17. 17.

    EU-Canada Comprehensive Economic and Trade Agreement (Provisional Application 2017). (CETA).

  18. 18.

    In addition to CETA, the current draft of the EU-Vietnam Free Trade Agreement (2020) Chap. 8, Chap. II, Sect. 3, Art. 2 defines third-party funding as “any funding provided by a natural or juridical person who is not a party to the dispute but who enters into an agreement with a disputing party in order to finance part or all of the cost of the proceedings in return for a remuneration dependent on the outcome of the dispute or in the form of a donation or grant.”.

  19. 19.

    See supra footnote n. 12.

  20. 20.

    ICCAQM Report, cit. at footnote n. 2, p. 110.

  21. 21.

    Garcia (2018a), p. 2914.

  22. 22.

    See supra footnote n. 12.

  23. 23.

    See also World Health Organization 62nd Session of the Regional Committee and Pan American Health Organization 50th Directing Council, Resolution CD50.R6 adopted with regard to Strengthening the Capacity of Member States to Implement the Provisions and Guidelines of the WHO Framework Convention on Tobacco Control, 29 September 2010 (R-230) (endorsing the SPR); Memorandum of Understanding between the Secretariat of the WHO Framework Convention for Tobacco Control and the Uruguayan Ministry of Public Health, 21 May 2014, (R-301-bis) (showing the FCTC Secretariat support for the creation of the International Cooperation Center on Tobacco Control (ICTC) within the Ministry of Public Health).

  24. 24.

    See also Pan American Health Organization (PAHO) (2014), R-300.

  25. 25.

    Sahani et al. (2018).

  26. 26.

    Garcia (2018b) The case against third-party funding in investment arbitration. https://www.iisd.org/itn/en/2018/07/30/the-case-against-third-party-funding-in-investment-arbitration-frank-garcia/. Accessed 5 Aug 2021. Mr. Bloomberg in a press release stated that ““No country should ever be intimidated by the threat of a tobacco company lawsuit, and this case will help embolden more nations to take actions that will save lives.” It has been argued that investment regime is asymmetric and provides greater benefits to the investor. It certainly makes developing countries vulnerable. Thus, the not-for-profit TPF may become more active role in levelling the field in investor-state disputes in the future…”

  27. 27.

    Van Boom (2011) Third-party financing in international investment arbitration, p. 50. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2027114. Accessed 6 Aug 2021.

  28. 28.

    See footnote n. 13. In para 11, the Russian Federation has argued that “Claimants are not here to vindicate any alleged right of their own. They are nothing more than willing shills in Group Menatep's “lifetime of litigation.“ In this regard, it is worth remembering that the Claimants’ counsel has been Group Menatep's lobbyist for years, and the head of its international practice remains a member of Group Menatep Limited's advisory board to this day. Group Menatep, however, is not entitled to invoke the Spain/Soviet bilateral investment treaty. Nor is that treaty intended to be used by Claimants as a tool for harassment.”

  29. 29.

    Ibidem, para 31.

  30. 30.

    See ibidem, paras 33, 223. In para 33, it was held that “…is the Respondent has sought to discredit the Claimants by suggesting that they are not the true parties in interest, and that the entire arbitration is an abuse of process. At its core, this argument is a reaction to the Claimants’ disclosure that their costs of prosecuting this case are born entirely by another party, namely Menatep, in part in order to establish that portfolio investors in Yukos are able to recover under bits to which the Russian Federation is a party.”

  31. 31.

    Idem.

  32. 32.

    See idem.

  33. 33.

    See supra footnote n. 1.

  34. 34.

    Smith (2011), p. 768.

  35. 35.

    Rubins (2003), p. 119.

  36. 36.

    Schreuer (2001), p. 1224, cited in Siag and Vecchi v. Arab Republic of Egypt, ICSID Case No. ARB/05/15, Award (1 June 2009) para 616.

  37. 37.

    See L.E.S.I. S.p.A. & ASTALDI S.p.A. v. République Algérienne Démocratique et Populaire, ICSID Case No. ARB/05/3, Award (12 Nov 2008), para 186. See also Alasdair Ross Anderson and Others v. Republic of Costa Rica, ICSID Case No. ARB(AF)/07/3, Award (19 May 2010) paras 62–64.

  38. 38.

    See e.g. ADC, cit. at footnote n. 9, paras 531–33. See also Gemplus S.A., SLP S.A., & Gemplus Industrial S.A. de C.V. v. United Mexican States, ICSID Case No. ARB(AF)/04/3, Award (16 June 2010) paras 17–22.

  39. 39.

    See also Hodgson (2014), p. 1.

  40. 40.

    ICC Arbitration and ADR Commission (2015) 87.

  41. 41.

    ICCA-QMUL Task Force on TPF in International Arbitration (2015), p. 10.

  42. 42.

    See footnote n. 20.

  43. 43.

    Blackaby et al. (2015), pp. 253 et seq. and 327 et seq.

  44. 44.

    Idem.

  45. 45.

    See generally Delaney and Magraw (2008), pp. 721–88.

  46. 46.

    Oxus Gold plc v. Republic of Uzbekistan, the State Committee of Uzbekistan for Geology & Mineral Resources, and Navoi Mining & Metallurgical Kombinat, UNCITRAL. See for the press release, in which the funding agreement was disclosed, Oxus Gold plc Press Release (2012) Litigation funding. http://www.lse.co.uk/share-regulatorynews.asp?shareprice=OXS&ArticleCode=0acxo35h&ArticleHeadline=Litigation_Funding. Accessed 5 Aug 2021.

  47. 47.

    Khouri et al. (2011).

  48. 48.

    Ross (2012), pp. 12, 19.

  49. 49.

    International Centre for Settlement of Investment Disputes (ICSID) (2020) Rules 14, 53(4) The arbitration rules for ICSID Convention proceedings. In: Working paper 4: Proposals for amendment of the ICSID rules. https://icsid.worldbank.org/sites/default/files/documents/WP_4_Vol_1_En.pdf. Accessed 5 Aug 2021. (Draft Arbitration Rules) “…Rule 14 - Notice of Third-Party Funding (1) A party shall file a written notice disclosing the name and address of any non-party from which the party, directly or indirectly, has received funds for the pursuit or defense of the proceeding through a donation or grant, or in return for remuneration dependent on the outcome of the proceeding (“third-party funding”)…” The Tribunal shall consider all evidence adduced in relation to the circumstances in paragraph (3). Rule 53(4) states that: “The existence of third-party funding may form part of such evidence but is not by itself sufficient to justify an order for security for costs…”

  50. 50.

    See supra footnote n. 2.

  51. 51.

    See supra footnote n. 2.

  52. 52.

    Ibidem, p. 81. The Report continues: “A.2. Arbitrators and arbitral institutions have the authority to expressly request that the parties and their representatives disclose whether they are receiving support from a third-party funder, and, if so, the identity of the funder.”

  53. 53.

    Idem. The Report continues: “There was also general agreement on the Task Force that, absent exceptional circumstances, no other information except the existence and identity of third-party funders was required for the purposes of analyzing conflicts of interest.”

  54. 54.

    Blackaby et al. (2009), para 4.72.

  55. 55.

    See footnote n. 47.

  56. 56.

    Idem.

  57. 57.

    EuroGas Inc. and Belmont Resources Inc. v. Slovak Republic, ICSID Case No. ARB/14/14, Award (18 Aug 2017) para 108.

  58. 58.

    Julio Miguel Orlandini-Agreda and Compania Minera Orlandini Ltda v. Bolivia, PCA Case No. 2018–39, Procedural Order No. 1 (4 Feb 2019) para 11.

  59. 59.

    Muhammet Çap & Sehil Inşaat Endustri ve Ticaret Ltd. Sti. v. Turkmenistan, ICSID Case No. ARB/12/6.

  60. 60.

    Ibidem, Procedural Order No. 3 (12 June 2015) para 1.

  61. 61.

    Reinisch (2016a), pp. 291–307.

  62. 62.

    The formal aspects of the rule of law focus on the content and promulgation of laws, more importantly that laws must be clear, consistent, practicable, stable, and of general application; they must be publicized and applied prospectively; and administered in a manner that is congruent with their purpose and content.

  63. 63.

    Menon (2021), pp. 1–26.

  64. 64.

    See Bingham (2011); Bingham (2007), p. 67. As stated: “There are a number of broader requirements implicit in the concept of the rule of law, including that: (a) The law must be accessible, intelligible, clear and predictable; (b) Issues should be resolved by law, not discretion; (c) Laws should apply equally to all; (d) The law must protect fundamental human rights; (e) Disputes must be resolved economically and reasonably speedily, (f) Public powers must be exercised reasonably, bona fide, and appropriately; (g) Adjudicative procedures provided by the state should be fair; (h) The state must comply with its obligations in international law.”

  65. 65.

    ICSID Convention (1966) art 57 (“A party may propose to a Commission or Tribunal the disqualification of any of its members on account of any fact indicating a manifest lack of the qualities required by paragraph (1) of Article 14”); UNCITRAL Arbitration Rules, UN Doc A/Res/65/22 (2010) art 12(1) (“independent and impartial arbitrator”) (“Any arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator’s impartiality or independence”).

  66. 66.

    Sheppard (2009), pp. 131–156.

  67. 67.

    Blackaby et al. cit. at footnote n. 54, para 6.11; Wälde (2011).

  68. 68.

    Wälde, idem.

  69. 69.

    ICSID Convention (1966) Art 52(1)(d) (“Either party may request annulment of the award by an application in writing addressed to the Secretary-General on one or more of the following grounds:... (d) that there has been a serious departure from a fundamental rule of procedure”); on this notion see most recently Victor Pey Casado and President Allende Foundation v. Republic of Chile, ICSID Case No. ARB/98/2, Decision on Annulment (18 Dec 2012) para 73 (fundamental rules “include the right to be heard, the fair and equitable treatment of the parties, proper allocation of the burden of proof and absence of bias”). See also UNCITRAL Model Law on International Commercial Arbitration (1985), UN Doc A/Res40/72 (1985) and UN Doc A/Res61/33 (2006) Art 34(2)(a)(ii). See also Blackaby et al., cit. at footnote n. 54, para 10.50.

  70. 70.

    Knahr (2007), p. 327.

  71. 71.

    Van Harten and Loughlin (2006), p. 121; Burke-White and von Staden (2010), pp. 283–346.

  72. 72.

    Biwater (Gauff) Tanzania Ltd v. United Republic of Tanzania, ICSID Case No ARB/05/22, Procedural Order No. 3 (29 Sept 2006) para 122. See also Knahr and Reinisch (2007), p. 97.

  73. 73.

    See ICSID Administrative and Financial Regulations, ICSID/15 (2006) Regulation 22(1).

  74. 74.

    See SD Myers Inc v. Canada, Procedural Order No. 16 (13 May 2000) para 8; Metalclad Corporation v. Mexico, ICSID Case No. ARB(AF)/97/1, Award (30 Aug 2000) para 13. See also NAFTA Free Trade Commission (2001) Notes of interpretation of certain Chapter 11 provisions, para 1 (“Nothing in the NAFTA imposes a general duty of confidentiality on the disputing parties to a Chapter 11 arbitration”).

  75. 75.

    See supra footnote n. 63.

  76. 76.

    Saipem S.A. v. Bangladesh, ICSID Case No. ARB/05/07, Decision on Jurisdiction and Recommendation on Provisional Measures (21 Mar 2007) para 67.

  77. 77.

    Abaclat and Others v. The Argentine Republic, ICSID Case No. ARB/07/5, Decision on Jurisdiction (4 Aug 2011).

  78. 78.

    See supra footnote n. 12; Philip Morris Asia Limited v. The Commonwealth of Australia, PCA Case No. 2012–12.

  79. 79.

    Glamis Gold, Ltd. v. United States, UNCITRAL, Award (8 June 2009).

  80. 80.

    Schill (2013a) The public law paradigm in international investment law. https://www.ejiltalk.org/the-public-law-paradigm-in-international-investment-law/. Accessed 5 Aug 2021.

  81. 81.

    Molot J Theory and practice in litigation risk. http://rippmedia.com/Molot-TheoryandPractice.pdf. Accessed 6 Aug 2021.

  82. 82.

    Brekoulakis and Rogers (2020).

  83. 83.

    See e.g. Excalibur Ventures LLC v. Texas Keystone Inc. et al. & Psari Holdings Ltd. and Others, [2014] EWHC 3436 (Comm) (23 Oct 2014) paras 4, 161; Arkin v. Borchard Lines Ltd. and Others, [2005] EWCA Civ. 655 (26 May 2005) para 36 (“[w]here … the nonparty not merely funds the proceedings but substantially also controls or at any rate is to benefit from them, justice will ordinarily require that, if the proceedings fail, he will pay the successful party’s costs.”); Abu Ghazaleh and Others v. Chaul and Others, 36 So. 3d 691 (2 Dec 2009).

  84. 84.

    von Goeler (2016), p. 35.

  85. 85.

    See supra footnote n. 82.

  86. 86.

    The consensus is that the existence of a TPF can give rise to serious conflict of interest issues.

  87. 87.

    See ICCAQM Report, cit. at footnote n. 2, Chapter 6, and for an extended discussion of competing views in the underlying policy debate, see ICCAQM Report, cit. at footnote n. 2, Chapter 8.

  88. 88.

    See supra footnote n. 82.

  89. 89.

    See Draft Arbitration Rules, cit. at footnote n. 49, Rule 21. Draft ICSID Arbitration Rule 21 defines TPF in the following terms: “Third-party funding’ is the provision of funds or other material support for the pursuit or defense of a proceeding, by a natural or juridical person that is not a party to the dispute (‘third-party funder’), to a party to the proceeding, an affiliate of that party, or a law firm representing that party. Such funds or material support may be provided: (a) through a donation or grant; or (b) in return for a premium or in exchange for remuneration or reimbursement wholly or partially dependent on the outcome of the proceeding.”

  90. 90.

    Schill (2013b).

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  1. Jindal Global Law School, Jindal Global University, Sonipat, O.P, India

    Gautam Mohanty

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  1. Maritime Law, Australian Maritime College, University of Tasmania, Launceston, TAS, Australia

    Poomintr Sooksripaisarnkit

  2. Jindal Global Law School, O. P. Jindal Global University, Sonipat, Haryana, India

    Dharmita Prasad

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Mohanty, G. (2022). Visualizing the Role of International Rule of Law in “Not-For-Profit Funding” in Investment Arbitration. In: Sooksripaisarnkit, P., Prasad, D. (eds) Blurry Boundaries of Public and Private International Law. Springer, Singapore. https://doi.org/10.1007/978-981-16-8480-7_7

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  • DOI: https://doi.org/10.1007/978-981-16-8480-7_7

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  • Online ISBN: 978-981-16-8480-7

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