论第三方资助仲裁对仲裁庭作出费用担保决定的影响

The Impacts of Third Party Funding to the Decision-making Process of Arbitral Tribunal in Security for Costs

随着费用担保逐步进入国际仲裁领域,该临时措施逐渐成为仲裁制度中颇具争议的问题。但各国法律和仲裁机构的仲裁规则,很少对费用担保问题作出明确规定。随着第三方资助仲裁的出现,仲裁庭在作出费用担保决定时是否应该考量第三方资助这个因素,成为仲裁理论与实践中的新问题。我们根据国内外相关文献数据、仲裁机构公布的案例资料,通过比较分析和案例分析方法,认为第三方资助对仲裁产生了实质性影响,仲裁庭在作出费用担保决定时应该将其作为一个独立因素加以考量,并应特别注意资助者以往资助诉讼或者仲裁的历史记录和资助者是否有足够的经济实力,分析资助者有无中断资助的可能性。

As Security for Costs gradually entered the field of international arbitration,this interim measure has increasingly became a controversial issue. However, rare laws and arbitration rules around the world make it clear on the issue of Security for Costs. With the advent of third-party funded arbitration, whether the arbitral tribunal should take the third-party funding as a separate considering factor when making a Security for Costs decision has become a new issue in field of arbitration. Based on domestic and foreign relevant articles and case data published by arbitration institutions, through comparative-analysis and case-study methods,we believe that third-party funding has impacted on arbitration substantially. It is suggested that the third-party funding, in special the history of the third-party funder’s funding litigation or arbitration, the economic strength and the possibility to stop the funding of the third-party funder, should be considered as a separate factor, when the arbitral tribunal makes a decision on Security for Costs.