Disclosure of third-party arbitration funding in the absence of express rules: a functional approach safeguarding international commercial arbitration

Third-party arbitration funding (TPAF), if not a panacea, is unquestionably a powerful remedy to the escalating costs of international commercial arbitration (ICA). TPAF facilitates access to justice and levels the playing field in ICA; nevertheless, it introduces ethical, procedural and award-related risks that threaten the integrity of ICA. Chief amongst these concerns is TPAF non-disclosure, which can engender conflicts of interest, security for costs issues and disruptions in arbitral proceedings. This article argues that the transnational and normative nature of ICA, particularly the bespoke arbitral procedure, the legal duty of an arbitral tribunal to discharge the burden of rationality and the notion of fair and equal treatment of the parties provide sufficient safeguards against the perils of TPAF non-disclosure. Against this background, the author advocates for a functional approach that addresses TPAF non-disclosure issues in the absence of any express disclosure rules.