Seminar: Third Party Funding of International Arbitration and International Trade and Commercial Law through the Looking Glass

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Event Details

Date:
22 August 2018 at 1:00 pm – 2:20 pm
Venue:
Department of Business Law and Taxation, Level 3 Meeting Room, Building S, Caulfield Campus
Categories:
Business Law and Taxation

Description

The International Trade and International Commercial Law Research Group is pleased to announce a lunchtime double-seminar 1pm on 22 August, with Professor Frank J Garcia (Boston College, Law Faculty), and Dr Giovanni Di Lieto and Dr David Triesman (Monash Business School).

Professor Garcia will speak to his recent work exploring the challenges around third party funding of arbitration.

Abstract:

In the wake of the Global Financial Crisis and the demand by speculative finance for new investment vehicles, third-party funding (TPF) has discovered the BIT/ISDS system. Proponents of TPF argue that it provides a number of benefits across a range of dispute settlement platforms, including promoting access to justice (A2J) and filtering out unmeritorious cases.  Whatever the merits of TPF in civil and commercial litigation, TPF within a system as unbalanced as the investment law regime is, to put it bluntly, an exploitation.

TPF is explicitly designed to take unfair advantage of the asymmetric structure of the investment regime today for the benefit of speculative finance. TPF effects an uncompensated wealth transfer through the mechanism of the BIT/ISDS system from the public for the benefit of speculative finance, at a significant cost to target countries and their citizens, who as tax payers are the “residual risk-bearers” in the current system. TPF proponents have argued that TPF provides access to justice for investors who wish to seek redress but lack sufficient financial resources. However, in the ISDS context TPF is about balance-sheet management, allowing well-resourced claimants to minimize the risk associated with bringing a claim, and does not focus on providing funding to impecunious or disadvantaged claimants.

For all of these reasons, TPF as currently constituted cannot play a constructive role in investment arbitration. States should ban TPF entirely, at least until the international investment regime can be reformed towards more balanced agreements. If TPF is to be allowed in ISDS at all, the system should require mandatory, expansive disclosure of third-party funding agreements and their terms, coupled with mandatory security for costs. It is critically important that all stakeholders, academics and civil society take a careful, public and sustained look at the risks that TPF poses to the public and to the investment regime itself.

Dr Lieto and Dr Triesman will speak to contemporary trends in international trade and commercial law drawing on their recently published new text International Trade Law (Federation Press), for which Professor Garcia provided the foreward. The new book is unique in its treatment of both intergovernmental and private systems of cross border trading rules and institutions.

Seminar Title: Third Party Funding of International Arbitration (Professor Frank Garcia) and International Trade and Commercial Law through the Looking Glass (Dr Giovanni Di Lieto and Dr David Treisman)
Venue: Department of Business Law and Taxation, Level 3 Meeting Room, Building S, Caulfield Campus
Date: 22 August 2018
Time: 1 – 2.20 pm

A light lunch will be provided. Please register here by 20 August.


E-Mail
Hanwei.Liu@monash.edu