Defining Access to Justice in International Arbitration

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Blog Post

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Oxford University Press




Much has been said and written about access to justice. While there are many ways to define the phrase “access to justice”, this brief intervention addresses access to justice in relation to paying the costs of arbitration. Thus, for this purpose, “access to justice” simply means having the financial resources or the ability to acquire the financial resources needed to bring your claim or muster your defence in international arbitration. In applying this definition, it is evident that there is an endless number of ways in which a party could have or acquire financial resources for pursuing a claim in arbitration or defending against it. For example, many parties self-finance their claims or defences. Parties may also acquire liability insurance or political risk insurance, which may include paying the costs of arbitration. Subsidiaries may be able to tap into the resources of their parent corporations. States may use their internal legal teams or tap into their treasuries to pay external law firms. A client may hire an attorney or law firm on a contingent or conditional fee basis, if permissible in the relevant jurisdiction. And then there is third-party funding.

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