Third Party Funding in International Arbitration
- Location: ICC Headquarters, Paris
- Date: 26/11/2012
- Event Type: Conference
- Language: English
Third Party Funding in International Arbitration
The last decade has seen an exponential growth in both international commercial arbitration and international investment arbitration. Yet, arbitration proceedings can prove to be very costly and their funding raises the delicate question of the accessibility of arbitration.
The solution offered by third-party funding has undoubtedly become a fact of life in the world of arbitration, despite reservations in some quarters. Although Continental countries continue to regard it with suspicion, Anglo-Saxon countries have embraced this solution and already built up a body of experience in the field. This conference will first consider the various funding techniques specific to international arbitration and then look at some of the legal issues raised by such funding and the reactions it may arouse amongst international arbitration practitioners.
This Annual Meeting is the ICC Institute of World Business Law’s latest contribution to reflection on new practices in international arbitration and is inspired by the wish to see those practices develop in a way that is compatible with the basic principles which ensure the parties’ rights.
Who should attend?
All professionals involved in international trade and dispute resolution: lawyers, arbitrators, magistrates, academics and corporate counsel.
Morning Sessions (09.00-12.45)
First session: Overview of Arbitration Finance
- Access to Justice and Due Process. "Wealth has indeed the monopoly of justice against poverty" (Jeremy Bentham)Access to Justice and Due Process. "Wealth has indeed the monopoly of justice against poverty" (Jeremy Bentham)
- Risk sharing by lawyers: contingency fees (USA), conditional fees (UK), pactum de quota litis (civil law countries) and other forms of arbitration success fees.
- Arbitration insurance
Before the event and after the event insurance - Sale and assignment of legal claims and arbitral decisions - Third Party Funding and "arbitration loans"
- The modern Third Party Funding Industry
Origins and development - Sources of funds - Type of Funders and level of sophistication: one-time players vs. repeat players - Analysis of funding mechanisms and structures, including structures for defendants
Second session: The decision to invest in claims
- Objections to Third Party Funding
Ethical issues - Doctrines of maintenance, champerty and barratry; usury; illegal gambling in arbitration; and unconscionability
- Cost-efficient dispute resolution
- Levelling the playing field on which disputes are resolved
Economic analysis of the return on the investment - Examples of profitable investments in Third Party Funding context
- Due diligence and the assessment of risks and returns
- The funding agreement and issues to be taken into account during the negotiation thereof
- Fee: recovery percentage vs. Interest which increases with time
- Collateral: pledges or mortgages over property to secure repayment of the funder's fee
Afternoon Sessions (14.30-18.00)
Third session: Third Party Funding and arbitration proceedings
- Confidentiality, transparency and attorney-client privilege
- How to identify that the opposing party is being financed by a Third Party Funding?
- Conflicts of interest for lawyers - arbitrator's independence and impartiality
- The role of funders in the proceedings
Production of documents, oral testimony, legal argument, settlement negotiations, termination of the funding agreement - When is it relevant?
- Cost issues
Fourth session: Third Party Funding in investor-State Arbitration - Third Party Funding and collateral litigation
- Special issues to be taken into account while funding state parties
- An invitation to class actions in Investor-State arbitration
- Abaclate and Others V. Argentina and dissenting opinion
- Experiences drawn from the Lago Agrio Third Party Funding
- Request for discovery in local courts and interim measures against the third party funders - The role of third party funders in enforcement of awards - Recovery of the funder's fee
- Is there a need for national or international regulation or for soft-law regulation? What are the steps to be taken de lege ferenda?
Closing remarks by:
Bernardo Cremades, Co-Chair of the 32nd Annual Meeting
Cocktail Reception hosted by Calunius Capital LLP
Chairman of the ICC Institute of World Business Law
Yves Derains, Founding Partner, Derains & Gharavi, France; Former Secretary General, ICC International Court of Arbitration
Co-Chairs of the 2012 Annual Meeting of the ICC Institute of World Business Law
Bernardo M. Cremades, Senior Partner, B. Cremades y Associados, Spain; Professor, University of Madrid ; Council Member, ICC Institute of World Business Law
Antonias Dimolitsa, Founding Partner, A. Dimolitsa & Associates, Greece; Vice-Chair, ICC Institute of World Business Law
- Georges Affaki, Member of the Executive Committee and Head of Structured Finance, CIB Legal, BNP Paribas, France; Vice-Chair, ICC Banking Commission, Council Member, ICC Institute of World Business Law
- Christopher P. Bogart, Chief Executive Officer, Burford Group Limited, New York, United States
- Antonio Crivellaro, Head of Arbitration, Bonelli Erede Pappalardo, Italy; Council Member, ICC Institute of World Business Law
- Hamid Gharavi, Founding Partner, Derains & Gharavi, France
- Mark Kantor, Independent Arbitrator, Washington, United States
- Charles Kaplan, Partner, Herbert Smith Freehills Paris LLP, France; Associate Member, ICC Institute of World Business Law
- Carolyn Lamm, Partner, White & Case LLP, Washington, United States
- Laurent Lévy, Partner, Lévy Kaufmann-Kohler, Switzerland; Vice-President, ICC International Court of Arbitration ;Council Member, ICC Institute of World Business Law
- Maxi Scherer, Special Counsel, Wilmer Cutler Pickering Hale and Dorr LLP; Senior Lecturer in International Arbitration and Energy, Queen Mary, University of London, United Kingdom
- Timothy D. Scrantom, Co-founder and Managing Director, BlackRobe Capital Partners LLC, New York, United States
- Selvyn Seidel, Chairman, Fulbrook Management LLC, New York, United States
- Ignacio Torterola, Of Counsel, Foley Hoag LLP, Washington D.C. United States
- James E. Tyrrell, Regional Managing Partner, Patton Boggs LLP, New York, United States
Monday 26 November 2012
International Chamber of Commerce
38, Cours Albert 1er, 75008 Paris, France
English and French with simultaneous interpretation
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The registration fees include all conference activities including documentation, lunch and coffee breaks. Travel and hotel expenses are not included.
Travel & accommodation
Participants are responsible for making their own travel arrangements and hotel reservations. A list of hotels in Paris, with which ICC has negotiated preferential room rates will be sent to you upon receipt of the registration form.
Credits and hours:
ICC Events is eligible for CLE credit under New York's approved jurisdiction procedures, is a State Bar of California approved MCLE provider and is a Solicitors Regulation Authority and General Council of the Bar of England and Wales External CPD Course Provider.
French Bars: This training has been sent for CNB approval. Lawyers practising in France may apply for the reimbursement of this course before the FIFPL (Fonds Interprofessionnel de Formation des Professionnels Libéraux), subject to terms and conditions.
50 % of the registration fee will be refunded if notice of cancellation is received in writing before 26 October 2012. Cancellations after this date are not refundable. Subject to agreement from ICC Events prior to the conference, the registration may be transferred to another person from the same company or organization at no extra charge. Updated registration material will be required.
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