Recovery of Costs and Security for Costs in Third Party Funding in International Arbitration

Essential financial challenges surround the space around third party funding in international arbitration (TPF). A significant challenge in this regard is the possible recovery of TPF costs. The winning funded party expects the TPF costs to be paid by the losing party. The examination of such a possibility should be examined under the criterion of “reasonableness” in the governing laws. Arbitration costs can be placed within the cycle of “reasonableness” and become recoverable. However, it appears that the funded party’s profits are out of that criterion and cannot be recovered from the losing party. Another important financial challenge is the possible security for costs by the defendant. In this regard, a major concern for the defendant is the inability of the plaintiff to pay the costs of arbitration. Thus, the main challenge facing the arbitration tribunal is answering the following questions: Can a defendant request security for costs despite the existence of a TPF contract? And if such a request is made, how should the arbitration tribunal react to that? Based on the analysis of the existing resources and reported arbitration cases, the existence of TPF is not sufficient to justify the issuance of an order concerning the security of costs, and such requests should be decided upon based on the criterion of “Impecunious” or similar criteria (in national laws/the Governing Laws), regardless of the existence of any TPF contract.