Financiamento da arbitragem por terceiros: para além do acesso à justiça – a economia e a cultura do third-party funding

Abstract

This paper analyzes third-party arbitration funding, known as third-party funding (TPF). A topic with long-standing and potentially controversial historical roots, its contemporary development and use are associated with paradigm shifts in access to justice. It is a marketcreated mechanism, initially to meet the demands of parties unable to resort to arbitration due to a simple (but prohibitive) lack of resources – or the high opportunity cost of allocating their scarce resources. Currently, it reaches parties who seek it as a means of optimal capital allocation and risk mitigation. It is argued that this situation goes beyond the (basic and unquestionable) access to justice, as a matter of economics and culture. Especially in an increasingly interconnected world, it is essential to take a legal perspective on a relevant topic, which is generally unregulated or minimally regulated due to an incipient legislative framework at the global level – yet it enjoys significant self-regulated market practice. In this sense, thirdparty funding is presented as a type of litigation funding within the broader context of special situations. In an effort to conceptualize, it analyzes its legal nature and lists some of its modalities. It delves into some historical points, revisits the topic of access to justice, and focuses on studying the concepts and manifestations of culture and their corresponding reflection on civilization as a prism for the subsequent approach to the TPF beyond access to justice. The paper proposes the existence of a TPF economy from the perspective of political economy, both macroeconomic and microeconomic – thus demonstrating the economic logic that underpins a rational decision to opt for TPF by those agents who do not necessarily need it for access to justice, but who do so for economic reasons. The aim of positioning the phenomenon within a reality of legal hybridization, in heterarchical and multi-normative contexts, does not neglect the ethical imperatives that permeate and surround it in face of multidisciplinary issues and sophisticated legal complexity. The objective is to study third-party funding from the perspective of International Economic Relations Law, within the context of International Commercial Arbitration, and its intricate relationships. In this context, it highlights, beyond access to justice, the existence of an economy and culture specific to the phenomenon