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The TPF Paradox: Regulation Or Complete Prohibition?

6 minutes ago
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Reuben George Varghese, Jindal Global Law School, O.P. Jindal Global University


ABSTRACT


This paper provides an in-depth analysis of prohibition and regulation of third-party funding in investment arbitration by examining the paradox between enhanced access to justice for claimant investors and the systemic risks to procedural integrity. Following the 2008 economic recession, third- party funding has expanded significantly in investor-state dispute settlement, raising concerns regarding conflicts of interest, breach of confidentiality, structural asymmetries favouring claimants, and settlement deterrence. The 2024 India-UAE BIT is used as a prime example illustrating complete prohibition of third-parting funding whereas other treaties, national legislations and institutional rules are studied to illustrate different forms of regulating third-party funding in investment arbitration. This paper demonstrates, through doctrinal analysis of key ICSID jurisprudence, that unregulated third-party funding creates radical asymmetries whereby funded claimants face no downside risk whilst respondent States bear full defense costs from public budgets. This paper advocates for comprehensive multilateral regulation encompassing mandatory disclosure requirements, capital adequacy standards, success fee caps and more, arguing that prohibition or substantive regulation constitutes a necessary safeguard against wealth transfers from taxpayers to commercial speculators whilst preserving legitimate access to justice.



Indian Journal of Law and Legal Research

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Abbreviation: IJLLR

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ISSN: 2582-8878

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Website: www.ijllr.com

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Accessibility: Open Access

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License: Creative Commons 4.0

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Submit Manuscript: Click here

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Licensing: ​

 

All research articles published in The Indian Journal of Law and Legal Research are fully open access. i.e. immediately freely available to read, download and share. Articles are published under the terms of a Creative Commons license which permits use, distribution and reproduction in any medium, provided the original work is properly cited.

 

Disclaimer:

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The opinions expressed in this publication are those of the authors. They do not purport to reflect the opinions or views of the IJLLR or its members. The designations employed in this publication and the presentation of material therein do not imply the expression of any opinion whatsoever on the part of the IJLLR.

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