Regulating third party funding in arbitrations help within South Africa

Abstract

The decision by countries to relax the common law doctrines of maintenance and champerty to accommodate Third Party Funding (TPF) in dispute resolution has sparked a worldwide debate. The controversial practice of funding disputes in exchange for a share of a successful outcome or settlement has left courts and administering institutions in a compromising position. South Africa joined the debate in 2004 after the Supreme Court of Appeal (SCA) relaxed the application of the doctrines in favour of TPF. The SCA found that domestic courts have the necessary mechanisms to protect themselves against any repercussions of TPF without the assistance of the doctrines. The SCA limited their search to the abilities of the courts and did not consider the effect TPF could have on other dispute resolution processes such as arbitration. This study seeks to discover whether arbitration can protect itself against the repercussions of TPF. It further questions the possibility of adopting regulations to aid in the protection of arbitration should the current mechanisms be insufficient.