This Article considers security for costs under the ICSID regime. Given that all security for costs have been ordered against third-party funded investors—with the latest decision, Unionmatex, in January 2020, this Article examines prior ICSID decisions to determine whether third-party funded investors are prejudiced when it comes to security for costs. It further addresses whether an applicant’s right to a costs award is a “protectable right” under Article 47 and concludes that it is not. Finding that “arbitral hit-and-run” is a hypothetical concern not based on empirical evidence and providing that ICSID’s new proposed rules to its Arbitration Rules will only further impede third-party funded parties’ right of access to justice, this Article concludes that there is a clear prejudice against third-party funded parties. Finally, this Article concludes by reflecting that this prejudice may undermine one of the purposes for which ICSID Convention was created: to provide a forum for aggrieved investors to resolve their investment disputes—no matter how poor and regardless of whether they are funded by a third-party.
Young Hye (Martina) Chun,
‘Security for Costs’ Under the ICSID Regime: Does it Prevent ‘Arbitral Hit-and-Runs’ or Does it Unduly Stifle Third-Party Funded
Investors’ Due Process Rights?,
21 Pepp. Disp. Resol. L.J.
Available at: https://digitalcommons.pepperdine.edu/drlj/vol21/iss2/5