184 NEWSLETTER 2021 Restriction Models Draft Provisions 3 to 5 allow only certain types of TPF. According to the “Access to Justice Model”, TPF is permitted where the claimant is not in a financial position to file a claim without a funder. This prevents funding obtained only for business purposes, where claimants can actually manage risks, and afford the costs of the proceedings without financial support from a funder. “Sustainable Development Model” permits TPF only if claimants’ investments comply with sustainable development provisions of the host state. The UNCITRAL argues that this model could motivate states to prioritize investments contributing to fight against climate change and protection of environment. “Restriction List Model” illustrates prohibited funding types that are speculative, requiring excessive return, and which exceed a reasonable number of cases funded against the same respondent state regarding the same measure. Given their subjective nature, these models are likely to cause further complications in treaty arbitrations should they be incorporated into treaties. The “Access to Justice Model” is not, especially, convincing since it fails to explain why claimants should be under the burden of using solely their own sources while filing a claim. Sanctions Draft Provision 6 sets forth legal consequences, should there be a TPF falling within the Prohibited or Restricted Models, which nevertheless finances an investment claim. Possible sanctions vary, such as, lack of jurisdiction for the tribunal, inadmissibility of claim, termination of the TPF agreement, return of the funding received, suspension of proceedings, and consequential costs awards. The UNCITRAL takes one step further by underlining the likelihood of annulment of an award in such cases.
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