1. Introduction. – 2. Theoretical framework and methodology approach to TPF disclosure. 3. Arbitration in Saudi Arabia: Update of the SCCA Rules (2023). 4. The disclosure duty in third‑party funding agreements. - 4.1. TPF: Legal Foundations and Evolution. - 4.2. An approach to the definition of third‑party funding. - 4.3. TPF disclosure obligation: under Article 17.6 of the SCCA Arbitration Rules (2023). Generic disclosure or selective disclosure? - 4.4. The boundary between disclosure obligations and confidentiality. - 5. Transparency disclosure and procedural risks associated with TPF. – 6. Conclusions.
Background: Third-party financing (TPF) agreements have become increasingly relevant in international arbitration, generating various procedural challenges that complicate the balance between procedural transparency and the principle of confidentiality. This paper studies TPF in international commercial arbitration, with a focus on the regulations applied by the Saudi Arbitration Court. After a general overview of TPF mechanisms and their increasing prevalence in international arbitration, this article reviews the obligation to disclose TPF under Article 17.6 of the Arbitration Rules of the Saudi Commercial Arbitration Centre (SCCA) (2023), an instrument designed to protect the independence and impartiality of arbitrators.
Method: This research follows a legal-dogmatic approach, based on the systematic and exegetical interpretation of the rule, particularly the literal wording of Article 17.6 of the SCCA Rules. This method is complemented by a comparative analysis of standard arbitration models to categorize the SCCA’s regulatory framework. This study identifies the scope of disclosure and its function within the Saudi arbitration system, and defines the content of the disclosure obligation regarding TPF within the Saudi arbitration process. Furthermore, the connection with the principle of confidentiality is examined.
Results and Conclusions: The research findings demonstrate that Article 17.6 establishes a generic disclosure regime that imposes transparency levels limited to disclosing only the existence of the TPF contract and the identity of the third-party funder, excluding the contractual content of the agreement.
This regulatory structure is conducive to detecting conflicts of interest at the outset of the procedure, preventing the integrity of the arbitral tribunal from being compromised while preserving the confidentiality of financing agreements and ensuring the legal security of arbitration.
The research infers that Article 17.6 of the SCCA Arbitration Rules (2023) establishes a generic disclosure model, grounded in a general framework for disclosing matters outside the contractual terms of financing agreements. This leads to the early detection of procedural risks, thereby preserving the arbitral tribunal’s impartiality and independence. The disclosure obligation does not extend to the contractual terms of the agreement, maintaining an asymmetry between the principles of transparency and confidentiality.