Research On The Conflict Of Interest Of Arbitrators In ICSID Arbitration Third-party Funding

Third-party funding is widely involved in ICSID arbitration,bringing many unprecedented challenges to the ICSID arbitration mechanism,among which the arbitrator's conflicts of interest is one of the most prominent issues.How to deal with the challenges brought by third-party funding is the problem that the ICSID arbitration mechanism must solve at present.Under the background of China is frequently involving in ICSID arbitration with double status of home country and host country,and the third-party funding is rising in China,in order to make China better participate in ICSID arbitration and promote the sound development of international investment,it is necessary to make an in –depth study on the problems of the arbitrator's conflicts of interest caused by the intervention of third-party funding in ICSID arbitration.Based on the method of legal hermeneutics and comparative study,and the method of case analysis,this paper thoroughly discusses the problems of the arbitrator's conflicts of interest caused by the intervention of third-party funding in ICSID arbitration.This article begins with analyzing the concept of the arbitrator's conflicts of interest caused by the intervention of third-party funding in ICSID arbitration and the essence of the problems of the arbitrator's conflicts of interest,then after clarifying the concept of the arbitrator's conflicts of interest and the essence of the problems of the arbitrator's conflicts of interest,this paper analyzes the typical manifestations,causes and consequences of the arbitrator's conflicts of interest caused by the intervention of third-party funding in ICSID arbitration comprehensively,then,this paper examines the existing rules and practices of ICSID,analyzes the current situation and deficiencies of the ICSID arbitration mechanism in resolving the arbitrator's conflicts of interest caused by third-party funding,and discusses the ways for ICSID arbitration mechanism to solve the arbitrator's conflicts of interest caused by third-party funding.Finally,on the basis of the previous discussion,this paper discusses the measures that can be taken by China when dealing with the problems of the arbitrator's conflicts of interest caused by the intervention of third-party funding in ICSID arbitration.Apart from the introduction and conclusion,this thesis consists of four parts:The first part gives an overview of the basic issues concerning the arbitrator's conflicts of interest caused by the intervention of third-party funding in ICSID arbitration.This part confirms that the concept of the arbitrator's conflicts of interest and the concept of the publicofficial's conflicts of interest have an inherent compatibility.The arbitrator's conflicts of interest caused by the intervention of third-party funding in ICSID arbitration refers to a kind of situation in which when the conflicts between the personal interest of the arbitrator and his public duties happen because of the intervention of third-party funding in ICSID arbitration and the arbitrator need to make a choice between his public duties and his personal interest.This concept emphasizes the unilateral interference by the arbitrator's private interest to the public interest due to the interest relationship between the third-party funder and the arbitrator.The essence of the problems of the arbitrator's conflicts of interest caused by the intervention of third-party funding in ICSID arbitration is the issue of the independence and impartiality of arbitrators.The second part analyzes the typical manifestations,causes and consequences of the arbitrator's conflicts of interest caused by the intervention of third-party funding in ICSID arbitration.The typical manifestations of the arbitrator's conflicts of interest include the arbitrator's direct economic interest conflicts,the arbitrator's identity conflicts,and the arbitrator's repeated appointment conflicts.The extensive involvement of third-party funding in ICSID arbitration,the interference of third-party funders and the non-professionalism of ICSID arbitrators are important causes for the arbitrator's conflicts of interest.The arbitrator's conflicts of interest caused by the intervention of third-party funding in ICSID arbitration will have the effects of weakening the independence and impartiality of the ICSID arbitral proceedings,reducing the efficiency of the ICSID arbitral proceedings,affecting the validity of the ICSID arbitral proceedings,and aggravating the legitimacy crisis of the ICSID arbitration mechanism.The third part discusses the current situation,the shortcomings and the ways of the ICSID arbitration mechanism in solving the arbitrator's conflicts of interest caused by the third-party funding.A series of rules about the independence and impartiality of arbitrators in the ICSID Convention and the ICSID Rules of Procedure for Arbitration Proceedings can be applied in the situation of the arbitrator's conflicts of interest caused by the third-party funding,and there are cases concerning with third-party funding have been solved by ICSID arbitration tribunals.But the existing rules and practices of ICSID are still insufficient in resolving the arbitrator's conflicts of interest caused by third-party funding.Establishing the permanent international investment arbitration tribunal within ICSID system,specifying the content of the “independence” and “impartiality” of the arbitrators,bringing the third-partyfunding disclosure institution into the ICSID rules and reforming the challenge institution of arbitrators are the effective measures to make up for the deficiencies of existing rules and practices of ICSID.The fourth part discusses how to deal with the problems of the arbitrator's conflicts of interest caused by the intervention of third-party funding in ICSID arbitration for China.Under the background of China is frequently involving in ICSID arbitration with double status of home country and host country,and the third-party funding is rising in China,the following measures can be taken to solve the problems of the arbitrator's conflicts of interest caused by the intervention of third-party funding in ICSID arbitration: as a home country,China should encourage investors to take the initiative to disclose the third-party funding arrangements in the ICSID arbitration procedures,and regulate the third-party funding agencies when the third-party funding develops to a certain extent in China;as a host country,in the processes of concluding the international investment agreements,China should consider to regulate the third-party funding arrangements in investment agreements,and in the ICSID arbitration procedures,China should actively use the existing rules of ICSID and sum up the practical experience of ICSID arbitration.