Revisiting transparency standards in investor–state dispute settlement vis-a-vis third-party funding: how much transparency is too much transparency?

This article examines the relationship between transparency and legitimacy in investor–state dispute settlement (ISDS) jurisprudence, particularly in the context of Third-Party Funding (TPF). The initial section of the paper scrutinizes transparency as a vital facet of legitimacy, spotlighting recent measures aimed at enhancing procedural openness. The subsequent section assesses the disclosure dynamics of TPF arrangements in ISDS. It probes the implications of mandatory disclosure obligations, particularly those concerning the disclosure of the funding agreement. Emphasis is placed on developments such as the amended ICSID Arbitral Rules, the European Parliament’s proposed regulation of litigation funders, and United Nations Commission on International Trade Law’s Working Group III’s Code of Conduct.
The final section navigates the delicate balance between transparency and confidentiality, outlining the outer bounds of the transparency movement concerning TPF. The paper concludes by contemplating future reforms and offers propositions within the evolving landscape of ISDS

KEYWORDS:
transparency; third-party funding; UNCITRAL Working Group III; disclosure