ARTICLE: Third-Party Funders in International Arbitration: A Case for Protecting Communication Made in Order to Finance Arbitration Skip over navigation
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Copyright (c) 2016 Georgetown Journal of Legal Ethics
Georgetown Journal of Legal Ethics

ARTICLE: Third-Party Funders in International Arbitration: A Case for Protecting Communication Made in Order to Finance Arbitration

Fall 2016

Georgetown Journal of Legal Ethics

29 Geo. J. Legal Ethics 883

Author

MARIA CHOI *

Excerpt

INTRODUCTION

Third-party funding is no longer a stranger to litigation and arbitration. Because third-party funders have no control over the proceedings, they carefully assess the strengths and weaknesses of the case before investing hundreds of thousands of dollars in a dispute. This process implicates the evidentiary privileges surrounding the information that may be disclosed to the potential funders. The fear of waiving privilege places the client in a dilemma, having to maintain the fine balance between telling the funder too much and losing privileged documents or telling the funder too little and not being able to bring the claim. This Note proposes that communication made to potential funders ought to be protected.

This Note will explore the implications of third-party funding on the practice of international arbitration, particularly on the topic of evidentiary privileges. Part I will present a general background of the ethical implications presented by third-party funding, including conflicts of interest and evidentiary privileges. It will address how the IBA's revised Guideline on Conflicts of Interest deals with the issue of third-party funding and how no such agreement has been reached for evidentiary privilege. Part II will discuss the implications of the third-party funding on the privileges. Part III discusses the common interest doctrine as it has been defined and applied in United States jurisprudence. Part IV will then look at evidentiary privilege in international arbitration and how tribunals determine the scope and applicability of each scope. Finally, the Note will ...
 
 
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