国际仲裁中的第三方资助:问题与规制

Third Party Funding of International Arbitration: Issues and Regulation

国际投资与国际商事仲裁中的第三方资助是近年来的一个热点话题。所谓第三方资助,简单地讲就是非仲裁程序的当事人对仲裁程序的当事人,一般是申请人提供资金资助,使其能够启动并顺利完成仲裁程序,并从胜诉裁决中获取收益的一种投资模式。虽然提供资助的第三方并非仲裁程序的当事人,但是由于它对申请人提供了资金支持,资本的逐利性将不可避免地驱使其对仲裁程序进行干预,从而对仲裁程序产生一些不利影响。因此,很多国家在认可第三方资助合法性的同时,也对其进行一定的规制。本文在分析第三方资助对仲裁程序可能产生的影响的基础上,比较了有关国家的立法与实践,提出中国大陆为了构建世界仲裁中心,在立法尚不成熟之前,可以通过仲裁机构制定指引,为当事人利用第三方资助提供指南,从而尽可能避免不必要的争议。待时机成熟时,可以通过立法对诸如资助方资本充足率等问题作出明确规定,以促进第三方资助市场的良性发展。

Third Party Funding of international investment and commercial arbitration has been widely discussed in recent years. Third Party Funding, simply speaking, means by a Third Party Funding contract, that the third party funder will pay for the funded party's costs of arbitration proceedings in return for a percentage of the award or some other financial benefit from any proceeds recovered by the funded party from such funded proceedings. If there is no recovery from the proceedings, the third party funder will not receive any repayment or return on the Funds it has advanced to the funded party. Legally, the third party funder is not a party to the arbitration proceedings, but it is understandably that the third party funder will try all the means to influence the arbitration proceedings for the purpose of getting the invested money back. Therefore, due to such influence which may affect the due process of the arbitration proceedings, the domestic legislations recognize the legality of the Third Party Funding on one hand, but regulate it to some extent on the other hand. This article firstly analyzes the possible negative effects of the Third Party Funding against the international arbitration, then compares the legislations and practices of several major countries and areas in this field. By considering that there is no specific regulation in China's Mainland in this respect, this article suggests that some guidelines may be adopted by the arbitration institutes to provide guidance to the parties at stakes, including the third party funder, the funded party as well as the arbitral tribunal. When the time is mature, some critical issues such as the capital adequacy of the funded party, the controlling of the proceedings by the funded party should be regulated appropriately.