REPORT OF THE ICCA-QUEEN MARY TASK FORCE …

1 international council FOR commercial arbitration REPORT OF THE ICCA-QUEEN MARY TASK FORCE ON THIRD-PARTY FUNDING IN international arbitration April 2018 THE ICCA REPORTS NO. 4 ICCA is pleased to present the ICCA Reports series in the hope that these occasional papers, prepared by ICCA interest groups and project groups, will stimulate discussion and council FOR commercial arbitration REPORT OF THE ICCA-QUEEN MARY TASK FORCE ON THIRD-PARTY FUNDING IN international arbitration THE ICCA REPORTS NO. 4 with the assistance of the Permanent Court of arbitration Peace Palace, The Hague Published by the international council for commercial arbitration < > ISBN 978-94-92405-10-4 All rights reserved. 2018 international council for commercial arbitration international council for commercial arbitration (ICCA).

2 All rights reserved. The international council for commercial arbitration (ICCA) wishes to encourage the use of this REPORT for the promotion of arbitration . Accordingly, it is permitted to reproduce or copy this REPORT , provided that the REPORT is reproduced accurately, without alteration and in a non-misleading context, and provided that ICCA s authorship and copyright are clearly acknowledged. For further information, please contact us at v Task FORCE Members Co-Chairs Stavros Brekoulakis William W. (Rusty) Park Catherine A. Rogers Task FORCE Members Mohamed Abdel Wahab Guillermo Aguilar-Alvarez Maddi Azpiroz Lisa Bingham (ex officio) R. Doak Bishop James Blick Lise Bosman (ex officio) Charles Brower Brett Carron Teresa Cheng James Clanchy Alan Crain Susan Dunn Babatunde Fagbohunlu Ania Farren Richard Fields Jonas von Goeler Alain Grec Glenn Hendrix Duarte G.

3 Henriques Jean-Christophe Honlet Anna Joubin-Bret Sabine Konrad Susanna Khouri Kap-You (Kevin) Kim Meg Kinnear Toby Landau Erika Levin Julian Lew Timothy Mayer Michael McIlwrath Horacio Na n Fidelis Oditah Colin Ong Nikolaus Pitkowitz Michael Pryles Walter Remmerswaal Kim Rooney Sir Bernard Rix John D. Roesser Hannah van Roessel Jos Rosell Ank Santens Anke Sessler Victoria Shannon Sahani Audley Sheppard Hi-Taek Shin Laurence (Larry) Shore Mick Smith Ralph Sutton Willem H. van Boom Ga tan Verhoosel THE ICCA REPORTS vi Investment arbitration Sub-Committee Members* Irena Alajbeg Awn Al Khasawneh Leidylin Contreras Salma El Alaily David Gaukrodger Jos Lu s Gom ra Hernandez Andrea Horlikova Sapna Jhangiani Julian Kupka Mathieu Raux Ishido Shimpei Anke Meier Martina Polasek Stephan Schill Daniel Sharma Sylvie Tabet Ignacio Torterola * The individuals listed, in addition to many regular Members of the Task FORCE , were specially invited to participate on the Sub-Committee on Investment arbitration .

4 Members of the Investment arbitration Sub-Committee were also invited to join other gatherings and activities of the main Task FORCE . In addition to those individuals listed, on investment arbitration topics, the REPORT benefitted tremendously from participants at a roundtable hosted by the Columbia Center for Sustainable Investment (CCSI). A summary of that roundtable and list of the participants is available in Annex C to the REPORT . THIRD-PARTY FUNDING IN international arbitration vii About ICCA The international council for commercial arbitration (ICCA) is a worldwide nongovernmental organization (NGO) devoted to promoting the use and improving the processes of arbitration , conciliation and other forms of resolving international disputes. Its activities include convening biennial international arbitration congresses; sponsoring authoritative dispute resolution publications (including the ICCA Yearbook commercial arbitration , international Handbook on commercial arbitration and ICCA Congress Series); and promoting the harmonization of arbitration and conciliation rules, laws and standards.

5 ICCA has official status as an NGO recognized by the United Nations. See < >. About Queen Mary Queen Mary University of London is one of the UK s leading research-focused higher education institutions and one of the biggest University of London colleges. It offers teaching and produces research across a wide range of subjects in the humanities, social sciences, law, medicine and dentistry, and science and engineering, for over 130 years. The School of Law at Queen Mary University of London, where more than 2,000 students study law annually, has been consistently ranked within the top 5 law schools in the UK and the top 35 law schools in the world. < > All views expressed in this REPORT are those of the Task FORCE and not those of Queen Mary or ICCA, its Governing Board, or members. This REPORT is the result of the collective efforts of the Task FORCE , the views expressed are not attributable to any particular Member, and all Members served in their individual capacity.

6 Ix Foreword The ICCA-QUEEN Mary Task FORCE on Third-Party Funding is a joint Task FORCE established by ICCA and Queen Mary, University of London in 2013. The Task FORCE was composed of a diverse group of leading experts from a wide range of professional backgrounds, and included arbitrators, attorneys from both in-house and law firms, representatives from arbitral institutions, states, academics, and a range of third-party funders and brokers. The Task FORCE is co-chaired by William W. Rusty Park, a member of the Governing Board of ICCA; Stavros Brekoulakis, a professor at Queen Mary, University of London; and Catherine A. Rogers, also a professor at Queen Mary, University of London, and at Penn State Law. The work of the Task FORCE was coordinated by ICCA Executive Director Lise Bosman and Deputy Executive Director Lisa Bingham. Preparation of this REPORT was undertaken by designated individuals who led sub-committees to study specific topics, which included presenting and discussing their work at numerous Task FORCE roundtable meetings over the course of the past four years.

7 The compiled REPORT was prepared with the assistance of the co-Chairs, and presented for public comment from 1 September through 31 October 2017. During the public comment period, the Task FORCE benefitted from discussions at invitational and public events, as well as comments separately submitted by individuals and organizations. The activities of the Task FORCE and preparation of this REPORT were not independently funded, apart from a small donation ICCA made to support the Roundtable event at the Columbia Center for Sustainable Investment. All meetings and events were hosted pro bono by law firms, law schools, and related organizations. The Task FORCE is grateful for the generous support it received from various organizations that facilitated its work and hosted Task FORCE meetings and events and submitted comments during the public comment period, including Arnold BCH Advogados; Berwin Leighton Paisner; Clifford Chance; the Columbia Center for Sustainable Investment; Dechert; Dentons; cole de Droit de la Sorbonne; Foley Hoag; Institut de Recherche Juridique de la Sorbonne; The Law Society of England and Wales; Litigation Capital Management Limited; The Max Planck Institute Luxembourg for Procedural Law; NortonRose; Queen Mary, University of London; The Rockefeller Brothers Foundation; TDM and OGEMID; Three Crowns; the TPF Observatory; White and Wilmer Cutler Pickering Hale and Dorr, and its Scholar-in Residence Program.

8 In addition to support from many organizations, the Task FORCE received extensive detailed comments from various individuals. For these contributions, the Task FORCE would like to specially acknowledge the following individuals: Phillip Aliker, Trinidad Alonso, Clare Ambrose, Matt Amey, Chiann Bao, Jonathan Barnett, Christopher Bogart, Gary Born, Eric Chang, Christopher Cifrino, Nicola Cox, Ahmed El Far, Alice Fremuth-Wolf, John Gaffney, Frank Garcia, Adriana Gonz lez, Lukasz Gorywoda,THE ICCA REPORTS x Radu Giosan, Miriam Goldby, Gavan Griffith, Ali Gursel, Brooke G ven, Clifford Hendel, Melida Hodgson, Medivh Hu, Lise Johnson, Mark Kantor, Josh Karton, Nathan Landis, Anthony Mirenda, Mary Mitsi, Abayomi Okubote, Marco Paoletti, Daniel Schimmel, Stephan Schill, Woong Shik Shin, Jonathan Ward, Brad Wang, Jonathan Wood, Beibei Zhang, and the attendees of the 12 October Roundtable on Maritime and Insurance, and the 17 October Roundtable on Investment arbitration .

9 ** ** Summary reports from these Roundtable events, along with a listing of the individuals who participated, are attached as Annex B and Annex C, respectively, to this REPORT . xi Table of Contents ICCA-QUEEN Mary Task FORCE v About ICCA and Queen Mary vii Foreword ix Table of Contents xi

10 Chapter 1: Introduction 1 Chapter 2: Overview of Dispute Funding 17 Chapter 3: Definitions 45 Chapter 4: Disclosure and Conflicts of Interest 81 Chapter 5: Privilege and Professional Secrecy 117 Chapter 6: Costs and Security for Costs 145 Chapter 7: Best Practices in Third-Party Funding Arrangements 185 Chapter 8: Third-Party Funding in Investment arbitration 199 ANNEXES Annex A** Annex B Summary of Roundtable Discussion on the ICCA-QUEEN Mary Task FORCE Draft REPORT on Third-Party Funding in international arbitration 229 Annex C Roundtable Discussion of the ICCA-QUEEN Mary Task FORCE on Third-Party Funding in international arbitration Draft REPORT for Public Discussion 235 ** Annex A collects national reports indicating how different jurisdictions treat issues of privilege with respect to third-party funding and is available online at: < >.