A jurisdição do tribunal arbitral sobre o financiador e os limites da revelação do contrato de third- party funding

Abstract

The present study explores the concept of Third-Party Funding (TPF), also known as litigation funding, within the context of arbitration, paying special attention to the possible jurisdiction of the arbitral tribunal over the funder, as well as investigating the situations that could justify the disclosure of the funding agreement. It is observed that, although arbitration is an effective means of dispute resolution, its high procedural costs may limit access to justice, especially in disputes of significant economic complexity, in which case funding becomes a pivotal mechanism to ensure the conduct of arbitral proceedings and the reallocation of financial risks. The research has a qualitative and exploratory character, employing a dogmatic-legal method, developed through doctrinal, normative, and jurisprudential analysis. At first, the study focuses on defining the concept of litigation funding, aiming to examine its essential characteristics, main types and profiles of funding, and its historical development. Subsequently, the procedural status of the funder in arbitration is analyzed, with emphasis on the subjective limits of the arbitration agreement, arguing that the extension of the arbitral tribunal’s jurisdiction over the funder would only be permitted in exceptional cases in which significant strategic control over the dispute or an intrinsic link with the performance of the underlying contract is identified, the mere existence of funding being an insufficient element. Finally, the limits of the disclosure of the funding agreement are examined, assessing the balance between procedural transparency and confidentiality. It is demonstrated that there is no mandatory rule imposing the disclosure of the content of the TPF agreement, and the prevailing understanding is that disclosure should generally be limited to the identity of the funder, with the aim of preventing conflicts of interest. The study also examines national and international precedents, which demonstrate that disclosure of the agreement would only be justified when clear evidence of control over the dispute, breach of procedural good faith, or a proven risk to the integrity of the arbitral process is present. In conclusion, it is determined that the extension of arbitral jurisdiction over the funder and the disclosure of third-party funding agreements constitute exceptional measures, and that, as a rule, consent in arbitration and the confidentiality of TPF should be preserved.