24 Oct 2024
Brown Bag Seminar,
12:30 - 13:30 (local time: Europe/Zurich),
Anna Nausbaum
Third-Party Funding in the Era of Arbitration Reform and ESG: What Lies Ahead?
This article examines the role of third-party funders in arbitration, a now well-known stakeholder in international dispute resolution. It discusses how funding addresses concerns regarding the legitimacy of arbitration and access to justice by providing meritorious cases with the funding necessary to pursue substantive justice. The article approaches the potential conflicts of interest between funders and arbitrators, as well as potential ethical dilemmas between funders, funded parties and their lawyers. The article then explores the impact of Environmental, Social, and Governance (ESG) factors on third-party funding in arbitration, especially on climate change-related disputes. It then debates the evolving definition of a "fundable" case, emphasizing funders' increasing attention to climate-aligned cases. The role of funders as gatekeepers in filtering out meritless legal claims, NGOs, and other stakeholders in supporting ESG-related disputes is highlighted, along with the complex dynamics of balancing financial returns and social responsibility as well as the challenges in proving causation and the duration of such claims, both fundamental investment criteria for commercial funders. The article concludes that arbitration and commercial litigation funding plays an increasingly important role in an interdependent justice system, with forthcoming caselaw paving the way for the growth of funding availability for meritorious ESG-aligned cases.
Lucas Macedo is a Senior Investment Manager at Nivalion. He was an in-house attorney for several years with multinational groups (AES and ENEL) in the Latin American energy sector, handling complex litigation and arbitration, and regulatory affairs. Previously, Lucas acted in law firms in Brazil (BNI Advogados) and Germany (Orrick, Herrington & Sutcliffe LLP). Lucas is admitted to the Brazilian and Portuguese Bar, holds a law degree from the State University of Londrina, a specialization in Civil Procedure from Fundação Getúlio Vargas (top of the class), and an LL.M in Transnational Arbitration and Dispute Settlement from SciencesPo Paris (cum laude). Lucas is a faculty member of the post-graduation course on International Arbitration at the University of Lisbon, a guest lecturer at international arbitration courses at Universidad Jesuita de Guadalajara (Mexico) and Arbanza Escuela de Arbitraje (Peru) and sits as a volunteer on the Board of Directors of the NGO Liter of Light Brazil.
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