Research On Conflict Of Interests Of Third Party Funding In International Commercial Arbitration

In international commercial arbitration,the arbitrator should be withdrawn or be removed from the tribunal only if the arbitrator has a specific relationship with the party or its agent,and the involvement of third-party funding complicates the issue of conflict of interest.In international arbitration,"Conflict of interest" of arbitrators refers to the external influence or association that may result in the arbitrator's not being able to treat the parties impartially.In the third-party funding model,the external influence or association brought by the third party funder is concealed and complicated.Therefore,it is necessary to analyze the specialization of conflicts of interest under the new model considering the characteristics of conflicts of interest in traditional arbitration and the third-party funding models,and analyze the potential problems and propose relevant solutions.The existence of arbitrators' conflicts of interest may undermine the validity of the arbitral proceedings,which may lead to arbitrator's being challenged for lack of independence or impartiality,posing a threat to the effective composition of the arbitral tribunal and affecting the arbitral proceedings.Besides,the award may be rejected for recognition and enforcement for violating Article 5 of the New York Convention.However,from the current international practice,the main obstacles to regulate the conflict of interest are the single subject of disclosure,the vague range of disclosure,the confidentiality obligation stipulated in the relevant financingagreement and lack of safeguard system.Disclosure,the indispensable requirement of the arbitrator's impartiality and independence,includes the subject,content,time of disclosure and so forth.But the establishment of a disclosure system does not mean that the third-party funding is completely "transparent".How to balance the interests of the parties while ensuring the disclosure of conflicts of interest? In addition to the disclosure issue,regulating conflicts of interest in third-party funding arbitration also needs to consider the what kind of relationship between the arbitrator and the funder exist,should the arbitrator be withdrawn from the trial,whether the arbitrator should review the conflict of interest,how to improve the responsibility supervision model of the arbitrator.Thus,we should consider what are the sources of obligations or powers of arbitrators' viewing conflicts of interest? Can an arbitrator be exempted from his performance when conflicts of interest arising from himself? The conflicts of interest in third-party funding arbitration lies in the impartiality and independence of the arbitrator.Regulating the conflict of interest needs to re-examine the role of the arbitrator in the new mode,that is,the legal relationship between the arbitrator and the party,as well as the source of arbitral power.The research in theoretical point of view renders the regulatory model rationality and feasibility.Besides,the identification of the status of third-party funder and the analysis of the type of interest conflicts of arbitrators in traditional international arbitration is conduced to defining the manifestation of conflict of interest in this mode so as to analyze the regulation ways of this problem effectively.The thesis starts with the basic theory of third-party funding and analyzes the causes and types of conflicts of interest and obstacles to regulation in this new type of arbitration.At the same time,it analyzes important issues such as the disclosure and review of conflicts of interest in combination with the nature of arbitration and the theory of arbitral rights.Under the research on issues put forward above,the thesis explores how the disclosure system should be rationally set up under the conflicts of interest,how to ensure the implementation of disclosure obligations and how the conflicts of interest should be defined after disclosure.In the perspective of the "soft law",this paper proposes a reasonable regulatory path for the conflict of interest.Finally,under the practice in mainland,it proposes specific recommendations on the design of rules in regulating relevant conflicts of interest for the introduction of third party funding arbitration.