Third-Party Funding in International Arbitration: Devising a Legal Framework for India
Kaira Pinheiro & Dishay Chitalia*
Volume 14 Issue 2 (2021)
Third-party funding is a practice wherein an entity funds the procedural costs of one of the parties in a dispute in exchange for a share in the monetary award, if successful. Although it is a popular practice in several jurisdictions, it has remained unexplored territory in international arbitration in India. The lack of a regulatory mechanism has resulted in widespread apprehension and reluctance to engage in such practice, rendering arbitration an inaccessible method of dispute resolution for most, due to its notoriously extortionate nature. This paper argues in favour of third-party funding in arbitration in India and seeks to reconcile the conflicting opinions regarding the duty and extent of mandated disclosure of such funding, to arrive at a middle ground which balances the interests and rights of all the parties concerned. It proposes and justifies the establishment of a transparent mechanism for mandatory disclosure of such funding while suggesting a few provisions to respect the third-party funder’s interest in remaining behind the ‘funding veil’. It analyses this mechanism in light of the new confidentiality provisions introduced in India under the Arbitration and Conciliation (Amendment) Act, 2019 and seeks to arrive at a viable regulatory framework after comparing various international practices, in order to encourage the growth of third-party funding in India in furtherance of the country’s goal to establish itself as a hub for international arbitration.