제3자 자금제공에 관한 소고 - 중재시장의 활로를 찾아서 -

Arbitration is one of the foremost pillars of the alternative dispute resolution. Among the major characteristics of arbitration, the flexibility of the procedure is essential. This is because the parties are usually allowed to decide upon the number of arbitrators, the selection of arbitrators and the procedural rules in which the arbitration should follow. In this regard, the international arbitration community has strived to improve the system to allow more parties to participate in the arbitration industry. As a result, there has recently been a fervent discussion about third party funding in the sphere of international arbitration. Third party funding can be described as a contract in which the funder arranges a non-recourse provision of the cost of arbitration (or litigation) to the funded party in return for a certain portion of the final outcome of the case. The topic has received a great deal of attention in the international arbitration community and a number of countries have began to revise their local arbitration laws and rules of the arbitration institutions to regulate this issue. While there is already a considerable number of companies practicing the third party funding, the debate on whether the third party funding should be allowed still seem to persist. Those who adhere to the introduction of third party funding argue that this will provide numerous opportunities for potential parties to a conflict and as a result, enhance the access of justice. On the other hand, those who criticize the third party funding argue that third party funding would be prone to abuse and result in numerous frivolous litigations and arbitrations. This paper will explain the above arguments in more detail. This paper aims to bring forward some of the most recent discussions related to third party funding. In doing so, it will take a look at the various arguments related to the pros and cons of the third party funding. Then, the paper will discuss about types of third party funding as well as relevant statutes among leading nations in the arbitration community such as Hong Kong, Singapore and the United States. Moreover, the paper will explain about related cases in various jurisdictions around the world and based on statutes and cases, this paper will demonstrate that the trend in the international arbitration community is moving towards recognizing and regulating third party funding. Further, the paper will also look at the Korean law and court decisions to consider whether the current statutes prevent the third party funding. In doing so, the relevant statutes in the Attorney-at-Law Act and cases in the lower court will be analyzed. In the final parts of the paper, the issues regarding the disclosure of third party funding arrangement will be introduced. The paper will introduce recent discussions around the disclosure of the third party funding and explain the need to devise a regulation which would require the parties to reveal the existence of the third party funding arrangement prior to the selection of arbitrators in the arbitration process.