Volume 30 (2013) / Issue 1
William Kirtley, Koralie Wietrzykowski, 'Should an Arbitral Tribunal Order Security for Costs When an Impecunious Claimant Is Relying upon Third-Party Funding?' (2013) 30 Journal of International Arbitration, Issue 1, pp. 17–30
The list of issues surrounding the recent advent of third-party funding in the arbitration arena is long, and much has been written about the impact of third-party funding on issues regarding confidentiality, impartiality, the attorney-client privilege, disclosure and access to justice. An additional topic from which much debate has sprung in relation to third-party funding is its impact on decisions to award security for costs, namely, whether its use should prompt arbitrators to grant security for costs. It is this issue that this article investigates. After an introduction on security for costs, this article sets forth the opposing views expressed by third-party funders, commentators and arbitrators in treaties, articles and conferences, on the impact of third-party funding where security for costs is requested. The most recent arbitral awards and national case law which may assist practitioners to reach a conclusion on this sensitive question are also detailed. This article concludes with the authors' view on the most appropriate approach towards security for costs in the presence of third-party funding.
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