국제투자중재와 제3자 자금제공: 국제적 논의와 중재판정례에서의 쟁점

• Published in: 중재연구 Vol. 31; no. 4; pp. 3 - 27
• Main Authors: 엄준현, Eom, Jun-Hyun
• Format: Journal Article
• Language: Korean
• Published: 한국중재학회 01-12-2021
• Subjects: 무역학; 3
• ISSN: 1226-3699

Recent Discussions on Third-Party Funding (TPF) in the forums of UNCITRAL, ICSID, and ICC are making different levels of progress towards finalizing the rules. However, they also have similarities in dealing with legal issues related to TPF, such as definitions, disclosure, allocation of costs, and security for costs. International treaty tribunals have dealt with TPF issues, too. When it comes to the standing of funded claimants, the tribunal in Ambiente v. Argentina did not accept the argument that claimants were controlled by the TPF provider. Concerning the scope of the disclosure, the tribunal in Tennant v. Canada ordered the disclosure of the TPF arrangement. As for the allocation of costs, the tribunal in Kardassopoulos v. Georgia noted that there is no reason why a TPF agreement should be treated differently than an insurance contract. Regarding the security for costs, the tribunal in South American Silver v. Bolivia considered the mere existence of a third-party funder as not an exclusive factor to determine costs in the earlier stage of the proceedings. Lastly, relating to TPF as a ground for annulment, the tribunal in Teinver v. Argentina declined the respondent's argument that the TPF agreement was the vehicle of fraud.