Third-Party Funding in International Arbitration: Legal & Ethical Considerations

Overview

The ½-day ITA-ASIL Conference is presented annually in Washington, D.C. by the ITA Academic Council with the American Society for International Law (ASIL) immediately preceding the ASIL Annual Meeting. Scholarship is the hallmark of this conference, the papers from which are published in the law journal World Arbitration and Mediation Review. The conference concludes with a networking luncheon.

Download the Brochure (pdf)

For more details, download the online brochure.

Conference Co-Chairs

Stavros L. Brekoulakis
Queen Mary University of London - Centre for Commercial Law Studies
London, United Kingdom

Ruth Teitelbaum
Tenor Capital Management Company, L.P.
New York, NY

Schedule and Faculty

International arbitration disputes are increasingly financed by parties who are not parties to the arbitration dispute. The financing of arbitration disputes through so-called “third party funders” has thus become a key component of international arbitration practice. Third party funding raises a host of legal questions, such as the impact of third party funding arrangements on allocation of costs and security for costs applications. It also implicates important ethical considerations such as the extent of funders’ involvement in the arbitrator selection process or other aspects of a funded party’s case strategy and the potential for arbitrator conflicts of interest. The increased resort to funding also comes at a time of heightened political debate and sensitivity over the use of international arbitration to resolve disputes between investors and sovereigns. Despite the increasing use of third party funding and the important questions it raises, regulation of third party funding in international arbitration is currently lacking.

Understanding third party funding for all of the practical, ethical and legal questions it raises is essential for the continued development and regulation of international dispute resolution. ITA and ASIL have organized a lively program to enable participants to have an informed, open discussion and rigorous debate led by some of the leading experts in international arbitration and funding. The program will incorporate the findings of the ICCA-Queen Mary Task Force on Third Party Funding as a core part of the discussion and as a springboard for further debate.

8:00 am

Registration and Continental Breakfast

9:00 am

Welcome and Introduction

• Abby Cohen Smutny, Chair, ITA Advisory Board, White & Case LLP, Washington, D.C.
• Lucinda A. Low, President, ASIL, Steptoe & Johnson LLP, Washington, D.C.

9:05 am

Keynote Address: Third Party Funding: Perception and Reality

Third party funding provokes concerns over the fair administration of justice. Are those concerns well-founded? While proponents argue that third party funding promotes access to justice, critics are concerned that it encourages unnecessary, and possibly vexatious, new claims. The Keynote Address will provide an account of the ICCA-Queen Mary Report on Third Party Funding and explain how it contributes to our understanding of third party funding, identifying some of the salient issues that remain unresolved and how third party funding impacts current ethical considerations and perceptions concerning fairness in international arbitration.

• Prof. William (Rusty) W. Park, Boston University School of Law, Boston
  Co-Chair of the ICCA-Queen Mary Task Force on Third Party Funding

Conference Commentator:

• Prof. Catherine A. Rogers, Penn State Law and Queen Mary University of London, State College, Pennsylvania, and London
  Co-Chair of the ICCA-Queen Mary Task Force on Third Party Funding

9:35 am

Defining "Third Party Funding"

Defining “third party funding” is one of the most challenging tasks underlying the debate concerning its regulation in cross-border disputes. Without a proper definition, it may be impossible for arbitrators and lawyers to understand their ethical obligations stemming from third party funding. This first session will therefore begin with an examination of the origins and breadth of TPF, the different types and products of arbitration funding, and how new forms of TPF differ from more traditional funding arrangements such as insurance, equity and risk management arrangements. With this understanding of how arbitration funding has evolved, the expert panelists will explore how it may further develop in the future, including consideration of how the definition impacts ethical considerations in international arbitration disputes.

Moderator and Introduction: Key Findings of the ICCA-QM Task Force Final Report

• Ruth Teitelbaum, Head of Underwriting, Tenor Capital Management Company, L.P., New York

Panelists:

• Steve Jones, Director, Major Risks Practice Dispute Resolution Practice, Arthur J. Gallagher, London
• Erika S. Levin, Senior Vice President and General Counsel, The Judge Americas LLC, New York
• Prof. Maya Steinitz, University of Iowa College of Law, Iowa City

10:45 am

Break

11:05 am

Legal-Ethical Concerns and Regulation of Third Party Funding

In this session the speakers will debate some of the broader ethical considerations of third party funding, particularly with regard to potential conflict of interests between arbitrators and funders, as well as its relevance (if any) to the current backlash against international arbitration, particularly investment arbitration. Speakers will also explore the extent that current ethical rules impose limitations on third-party funding arrangements, current attempts to introduce new rules to regulate TPF, potential conflicts of interests between funders, law firms and arbitrators, and what these mean for the practice of international arbitration.

Moderator and Introduction: Key Findings of the ICCA-QM Task Force Final Report

• Prof. Stavros L. Brekoulakis, Queen Mary University of London, London

Panelists:

• Lise Johnson, Head: Investment Law and Policy, Columbia Center on Sustainable Investment, New York
• Jeffery P. Commission, Senior Counsel, Vannin Capital, Washington, DC
• Kim Rooney, Gilt Chambers, Hong Kong

12:15 pm

Concluding Remarks

• Prof. Susan D. Franck, Chair, ITA Academic Council, American University Washington College of Law, Washington, D.C.

12:20 pm

Networking Luncheon

Conference papers will also be published in the 2017:3 issue of ITA’s law journal, World Arbitration and Mediation Review.

For information and to register for the 111th ASIL Annual Meeting, April 12-15, 2017, also presented at the Hyatt Regency Capitol Hill Hotel, please visit: www.asil.org/annualmeeting.

Overnight Accommodations

A limited number of rooms are reserved at the Hyatt Regency Capitol Hill hotel in Washington, DC at the special rate of $224 plus taxes and fees.  The hotel is likely to fill up soon so you should make your hotel reservations now.  You may make your reservations directly with the hotel’s online reservation link or by calling +1.888.421.1442 (be sure to mention the “American Society of International Law” to receive the discounted group rate).

CLE Credit

MCLE Credit

This program is approved by the State Bar of Texas for 2.75 hours, including 1.0 hour of ethics. Course ID Number: 901368740. Credit hours for other states will vary and are subject to each state’s approval and credit rounding rules.

For this conference, ITA will directly apply (if requested) for course accreditation in the following states: California, Minnesota, New Mexico, Ohio, Oklahoma, Pennsylvania, Texas and Virginia. Some of these states may not approve a program for credit hours before the program occurs. Attorneys may be eligible to receive CLE credit through reciprocity or attorney self-submission in other states. ITA conferences are typically accredited by all mandatory CLE states.

Sponsorship Opportunities

Conference Luncheon - $2,500 each

• Exposure to thousands of ITA and ASIL constituents
• Recognition as a Sponsor on the conference websites, in the conference brochure, in e-marketing and at the conference
• Name/logo on the conference website with link to firm/company page
• Recognition at the Luncheon
• 2 complimentary registrants at the conference
• Up to 3 complimentary guests at the Luncheon
• Space for promotional materials at the conference
• Post-conference recognition at ITA’s website and in its quarterly News & Notes

Conference Breakfast and Coffee Breaks - $2,000 each

• Exposure to thousands of ITA and ASIL constituents
• Recognition as a Sponsor on the conference websites, in the conference brochure, in e-marketing and at the conference
• Name/logo on the conference website with link to firm/company page
• 1 complimentary registrant at the conference
• Space for promotional materials at the conference
• Post-conference recognition at ITA’s website and in its quarterly News & Notes

Exhibitor - $1,500 each

• Space to display company/firm materials at the conference.
• Name/logo on Conference website with link to company page.
• Post-conference recognition on the ITA website and in its newsletter, News and Notes

For further information, please contact Lilly Hogarth (+1-972-244-3424) or David Winn (+1-972-244-3412).

Other Information

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