185 ARBITRATION LAW Disclosure Regime A major part of the UNCITRAL’s work covers a detailed disclosure regime in the TPF. As per Draft Provision 7, the claimants are expected to disclose the identity of the funder with its beneficial owner and decision-maker in addition to the funding agreement. The tribunal has the discretion to determine the extent of disclosure. Accordingly, further details might also be required to be disclosed such as, the funders’ expected return, level of influence on the claim, and other cases they fund against the same state. The disclosure regime serves the purpose of bringing more transparency to the ISDS proceedings, which has been a common concern for arbitration institutions such as the ICSID and ICC. This provision may be developed further to combine with disclosure requirements of the tribunal members in line with draft Code of Conduct for Adjudicators in International Investment Disputes.7 Costs The UNCITRAL provides alternative provisions for cost-related matters, as well. Draft Provision 9 offers two options for ordering security for costs. Option A regulating a mandatory regime requires ordering security for costs should there be a claim funded by TPF. This option appears to be designed to reassure recovery of respondent states’ costs in an investment dispute brought by a claimant in financial difficulties. As per Option B, the tribunal has the discretion to order security for costs from the funded party. This option seems to be more adequate, since the mere existence of TPF would not necessarily justify an order for security of costs.8 It also better aligns with the fact that each dispute has its own financial realities, subjects and grounds that require a case by case analysis. 7 Code of Conduct for Adjudicators in International Investment Disputes | ICSID, https://icsid.worldbank.org/resources/code-of-conduct. 8 UNCITRALReport of Working Group III (ISDS Reform), 38th Session, Vienna, 14– 18 October 2019, para. 94, https://daccess-ods.un.org/tmp/4628700.91199875.html.
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