Existing and Potential Procedural Problems in TPF in Investment Arbitration: Analysis of the Case Law

As Bill Clinton said in the above quotation, one must also follow the trend lines in the law. Even though TPF does not always appear in the headlines of reports on investment cases, it is discussed many times as analysed here. In many cases, it is probable that parties used TPF even though it is not discussed in the tribunals’ orders and awards. As reported, a funder voiced that: “the funder had been approached by claimants concerning two-thirds of the cases that were registered at ICSID in one particular year”. The report continued, “funder had rejected all but one of these cases, but the rest nonetheless ended up on the case registry”, which indicates that another individual or TPF company has funded those claims, or the claimants have found other resources to fund their claims to be able to initiate ISDS proceedings. This is proof that many parties have sought TPF, and tribunals did not discuss TPF in all those cases. Otherwise, the number of cases analysed here would have been much higher. Still, a substantial number of tribunals have discussed TPF in various ways. Thus, we can easily say that TPF has become a trend in investment arbitration. It has happened even though TPF is a very new industry. Not long ago, a major third-party funder celebrated its 10th year of operation, and the case law has already reached a substantial number. Some of the issues analysed here are interlinked and tribunals discussed them together in some cases. Therefore, sometimes some of the issues are discussed together as well and this book does not divide them either. However, whatever issue took more attention of the tribunal, it is discussed under that issue in this chapter.