Third-party
financing in arbitration is a reality that one cannot ignore today. Such
funding can take various shapes and forms: financing is generally provided by
professional funders acting for profit but is also, on occasions, provided by
non-profit institutions. Moreover, in a number of cases, it is counsel to the
claimant that invests in the proceeding by working on an exclusive contingency
basis. This situation creates difficulties when it comes to identifying the
actual claimant. In general, it is necessary to determine who the claimant is
in order to determine who will bear the costs of an unsuccessful claim. In addition,
in investment arbitration, it is necessary to identify the actual claimant in
order to verify that the conditions set forth in the treaty invoked are
satisfied. On a separate note, the intervention of a thirdparty may interfere
in the relation between counsel and his or her client. Finally, the
intervention of this third-party may also considerably complicate the award of
costs at the end of the proceeding, especially when the proceeding has been
financed by counsel through a contingency arrangement.