国际投资仲裁中第三方资助的披露规则研究

Research on Disclosure Rules of Third-Party Funding in International Investment Arbitration

近年来,国际投资仲裁领域逐渐成为第三方资助逐利的焦点,然而其过度参与极易引发潜在利益冲突,使东道国面临滥诉索赔风险,严重威胁投资仲裁程序的公正性和完整性。系统性地设置第三方资助的披露规则是解决此问题的关键与前提。为提高披露规则适用的准确性、完整性与可执行性,首先,其适用范围应采形式定义模式,排除不必要披露的资助形式并考虑预留第三方资助新形式的规制空间及规避可能性;其次,应对受资方施加及时披露第三方资助的强制义务,同时确定仲裁庭具有命令披露资助细节的权力;最后,须重视未披露后果责任、持续披露义务等重要条款的完善。中国作为外商投资及对外投资大国,对于第三方资助投资仲裁应持审慎规制的立场,严控第三方资助引发的正当性危机。

In recent years,International Investment Arbitration has gradually become the focus of the Third-Party Funding Industry.However,its over-participation may easily lead to potential conflicts of interest and expose the host states to the risk of hit-and-run claims,which seriously threatens the fairness and integrity of the investment arbitration procedure.The systematic establishment of disclosure rules for Third-Party Funding is the key and premise to solve the above problems.In order to improve the accuracy,completeness and enforceability of the disclosure rules for Third-Party Funding,first of all,the scope of application of disclosure rules should adopt the mode of formal definition,to exclude some forms of funding which is unnecessary to disclosure,and to reserve regulatory space for new forms of Third-Party Funding and the possibility of circumvention.Secondly,it is advisable to adopt the systematic disclosure model,imposing the mandatory obligation of timely disclosure of the existence and identity of the funders on the party receiving the funds,at the same time,the rules should determine that the arbitral tribunal has the power to order the disclosure of the details of the funding arrangement.Lastly,it is necessary to pay attention to the perfection of such important provisions as the negative consequences of non-disclosure and the obligation of continuous disclosure.China,as a large country with both foreign investment and investment abroad,should take a prudent position on the Third-Party Funding in Investment Arbitration,strictly controlling the legitimacy crisis caused by the Third-Party Funding.