A Thought-Experiment Regarding Access to Justice in International Arbitration

Document Type

Book Chapter

Publication Date



Jean Kalicki and Mohamed Abdel Raouf




Wolters Kluwer




One reason for the public outcry against third-party funding is the widespread perception that third -party funding is unbalancing our notions of party-driven dispute resolution processes and even-handed tribunals. In the aspirational vision of idyllic dispute resolution, an arbitrator or judge oversees the proper administration of the proverbial “scales of justice” in an orderly manner and “balances” out party power differentials calmly through procedural evenhandedness. Yet, third-party funding indisputably puts a gold-weighted thumb on the scale in favor of funded parties, particularly since funded cases already tend to be calculable winners on the merits, and since third-party funders seeking a profit generally do not fund cases that are demonstrably likely to lose on the merits. Thus, we are left with the promising potential for winners to be more likely to win with third-party funding, and the alarming realization that not all parties are offered this same chance to win. For example, traditional for-profit third-party funders only fund cases from which they can make a profit; thus, many merit-based winners whose claims are too expensive to pursue relative to their claim value are turned down. Second, it is likely that longshot- winners – cases too risky even for a third-party funder that are, for example, rightfully arguing for a change in the law or relying on creative theories that require mental and verbal jujitsu to convince the decision-maker (i.e., the stuff of Hollywood films about courageous lawyers and citizens fighting against insurmountable odds) – are less likely to be funded as well. Third, defendant-winners may be less likely to be funded unless those defendants already have hefty funds at their disposal through which to pay the funder either a periodic premium or are willing to pay the funder from their own pockets (rather than from the proceeds of an award) upon winning the case. Fourth, non-financial winners – parties seeking non-financial remedies – are not likely to be funded unless they are willing to pay the funder from their own pockets, since there will be no monetary judgment upon winning the case. Fifth, political-winners are not likely to be funded, as many funders choose not to engage in funding of controversial positions and parties, which may be viewed as courageous or cowardly, depending on the type of party or issue at stake in the case. The foregoing examples collectively engender a larger, fundamental question: If funders are picking primarily winners – and more specifically winners that suit their business model – then what does real access to justice in international arbitration look like in an era of third-party funding? Would real access to justice need to involve third-party funders funding impecunious innocent respondents, or expensive long-shot claimants, or righteous injunctions with no monetary recovery, or unprofitable cases that espouse some worthy yet controversial position? Much has been written about access to justice in international arbitration. (4) This Article contributes to the conversation by presenting one theoretical framework to assess the level of access to justice that currently exists in international arbitration and determine pathways to increasing access to justice. This Article proposes a working definition of access to justice in international arbitration and then presents a simple thought experiment to assess which parties currently have access to justice in international arbitration and which parties may lack such access. This Article concludes by suggesting some next steps regarding how to increase access to justice in international arbitration.

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