A New Front Against Third Party Funding?

Third party funding in international arbitration has garnered a great deal of attention in recent years. Many of those opposed to the practice, or seeking to limit or control it, have been outspoken and engaged in efforts to regulate or abolish the practice. Up until now, much of that effort has focused on prospective legislative or rulemaking “solutions.”  For example, regulation of third party funding looks to be included among the topics to be addressed by anticipated amendments to the ICSID rules. In a interview, Meg Kinnear, ICSID’s General Counsel, indicated that, while the institution does not propose to prohibit the practice in the amendments, ICSID does propose to add third party funding disclosure requirements to address and avoid possible conflicts issues. HKIAC rules likewise include disclosure requirements, but also expressly permit tribunals to take into account any funding arrangements when fixing and apportioning costs. Another proposal that has been argued for, especially by state entities, is making funders liable to post security for fees at the outset of the proceedings. Continue Reading

Contracts with Foreign Companies May Require a Rewrite

A recent California case may force companies doing business with foreign entities to reconsider—and maybe rewrite—their contracts. In Rockefeller Tech. Invs. (Asia) VII v. Changzhou Sinotype Tech. Co., No. B272170, 2018 WL 2455092 (Cal. App. June 1, 2018), the California Court of Appeal held that parties may not contract around the formal service requirements of the Convention on the Service Abroad of Judicial and Extrajudicial Documents, commonly referred to as the Hague Service Convention. The decision could have profound implications for international business. Continue Reading

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