国际投资仲裁中第三方资助的费用分担问题研究

Research on Cost-Sharing System of Third-Party Funding in International Investment Arbitration

摘要: 第三方资助制度，是指当事人以外的自然人或者实体提供承担一方当事人部分或者全部费用的融资方式。作为“包揽诉讼”和“助讼”新形式，该制度在近年备受国际投资仲裁市场的青睐。然而，与之相匹配的国际立法、条约存在一定的滞后性，继而产生了诸多问题，比如仲裁庭对于费用问题的越权裁决、费用分担规则的适用不一、资助者引发的滥诉等。因此，亟需对第三方资助国际投资仲裁涉及的费用概念和类型进行界定。通过文献调查分析和概念性质分析的研究方法，明确仲裁庭有权裁决的费用范围；通过对实践中多种费用分摊规则的利弊分析，统一化和标准化费用规则；通过合伙关系的界定，扩大仲裁庭的管辖权，赋予其管辖资助者的权力；通过由资助者承担连带不利责任但享有内部追偿权的制度设计，预防被资助者成为资助者攫取利益的工具，以规范资助者与被资助者行为，保障第三方资助市场的健康发展。

Abstract: In recent years, the third-party funding system as a new form of “champerty” and “maintenance” has been favored by the international investment arbitration market. However, the lag of formulating of international legislation and treaties has caused some problems recently. Issues such as the arbitral tribunal’s ultra vires award on fees, inconsistent application of fee-sharing rules, and indiscriminate litigation by funders continue to harass the arbitral tribunal and the parties to the arbitration. Therefore, it is urgent to define the concept and types of costs involved in third-party funding of international investment arbitration, so as to clarify the scope of costs which the arbitral tri-bunal has the power to award. Secondly, through the analysis of the advantages and disadvantages of various cost-sharing rules in practice, unifing and standardizing fee rules to increase the authority of the award is of great importance. Besides, by defining the partnership of the funder and the fundee, the tribunal’s jurisdiction can be expanded, so that the tribunal can govern the funder’s behaviours, and in a way that leaves the funder jointly and severally liable but entitled to internal right of recourse, in purpose of preventing the fundees from becoming a tool for funders to gain profits. Last but not least, it is also conductive to regulate the behavior of funders and fundees, and ensure the healthy development of the third-party funding market.