Saudi Cultural Missions Theses & Dissertations
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Item Restricted Third-Party Funding in International Commercial Arbitration(University of Cabmbridge, 2024) Alturki, Ibrahim Abdullah I; H Andrews, NeilABSTRACT This thesis explores the complexities surrounding third-party funding (‘TPF’) in international commercial arbitration, comprehensively examining the relevant ethical and legal challenges. The research addresses how TPF has evolved from the shadowy confines of maintenance and champerty into a more accepted method to access justice. It investigates various funding mechanisms and identifies ethical issues and procedural flaws in TPF. Chapter One lays the groundwork for the thesis by outlining the research questions, key issues and scope. It critically reviews the existing literature on TPF, identifying significant gaps and highlighting the contributions of this research. The chapter concludes with a detailed description of the methodologies employed, including doctrinal, theoretical, comparative, and reform-oriented approaches, demonstrating how they collectively support a thorough investigation of the topic. Chapter Two explains the nature of TPF and examines its history and theoretical foundations, including tracing its roots within ancient societies, considering the impediments of the doctrines of maintenance and champerty and noting the modern appeal of TPF as vehicle for delivering economic access to justice. This chapter examines the conceptual basis of TPF and its mechanisms and structures. It outlines the complexities of defining TPF and advocates for a comprehensive definition focusing on funding activities rather than individual stakeholders. Chapters Three and Four adopt a doctrinal and comparative approach, examining the evolution and regulation of TPF in common law jurisdictions, namely, England and Wales and Australia, as well as civil law jurisdictions, namely, Germany and the Netherlands. The research highlights disparities between these systems, identifies regulatory gaps and proposes strategies to mitigate potential risks. Chapter Five explores where TPF overlaps with international commercial arbitration. It begins with an overview of the applicable laws and rules, explaining how they govern arbitration. The chapter then contrasts arbitration with litigation, highlighting the unique aspects of TPF in arbitration. It discusses how TPF fits within the arbitration context and examines its implications, emphasising the distinctions and specific considerations relevant to TPF in arbitration. iv Chapter Six delves into the practical implications of TPF in international commercial arbitration, examining the ethical and procedural issues. This chapter examines current international commercial practice concerning maintenance and champerty in arbitration, conflicts of interest, jurisdictional and admissibility considerations, confidentiality, disclosure and costs. It then provides proposals on how to address these issues. This thesis asserts that while TPF offers opportunities to enhance efficiency and accessibility in arbitration, proper regulation is crucial to prevent abuse and ensure fairness for all parties involved. The overarching theme of this thesis is the balancing act required in regulating TPF. While it provides a pathway for parties to gain economic access justice, its profit-driven nature necessitates careful oversight to prevent abuse. This preface introduces the research’s core structure and sets the stage for further discussion on how TPF can coexist with the traditional framework of international commercial arbitration without compromising its integrity. By proposing a balanced approach to TPF regulation, this thesis aims to guide stakeholders toward a more ethical and consistent arbitration environment.18 0Item Restricted Enhancing the effectiveness of Online Dispute Resolution (ODR) mechanism in cross-border e-commerce transactions: A Comparative Analysis of Legal Frameworks. Challenges, and Opportunities(University of East Anglia, 2025) Almobarak, Madwi Abdullah; Hancock, HollyThis study examines the key legal and regulatory challenges affecting the enforcement and effectiveness of Online Dispute Resolution (ODR) mechanisms on peer-to-peer (P2P) e-commerce platforms in the United States (US), European Union (EU), and United Kingdom (UK). These jurisdictions were selected due to their significant roles in global e-commerce, distinct legal approaches to ODR, and varied regulatory environments, providing a comprehensive basis for comparative analysis. To achieve a deep understanding of these challenges, this research adopts a functionalist comparative methodology. This approach is particularly suited for this study because it enables an analysis of how different jurisdictions’ legal systems function in practice to support or hinder the resolution of disputes on P2P e-commerce platforms. Rather than merely comparing legal rules or doctrines, the functionalist approach focuses on how legal norms and institutions perform similar societal functions or address common problems. In the context of ODR, this allows for the identification of common challenges and effective solutions across different legal systems. Employing a functionalist comparative methodology, the research focuses on three primary comparators: the enforceability of ODR agreements and awards, data protection and privacy laws, and accessibility and user trust. The analysis reveals that while ODR mechanisms are essential for resolving disputes in P2P e-commerce, their effectiveness is significantly influenced by jurisdiction-specific legal frameworks. In the US, the Federal Arbitration Act supports the enforceability of arbitration agreements, facilitating ODR but raising concerns over consumer rights. The EU’s emphasis on consumer protection through directives and the General Data Protection Regulation (GDPR) enhances user trust but may hinder ODR efficiency due to stringent compliance requirements. The UK’s post-Brexit landscape strives to balance consumer protection with business flexibility, creating unique challenges and opportunities for ODR implementation. The study concludes that harmonizing ODR standards across jurisdictions and integrating emerging technologies like Artificial Intelligence and blockchain can enhance the effectiveness, fairness, and accessibility of ODR mechanisms globally. Recommendations include adopting international standards such as the UNCITRAL Technical Notes on ODR, ensuring compliance with data protection regulations, and educating users about ODR processes and their rights. These measures aim to strengthen user trust, improve dispute resolution outcomes, and support the sustainable growth of P2P e-commerce platforms worldwide.32 0Item Restricted Enhancing the effectiveness of Online Dispute Resolution (ODR) mechanism in cross-border e-commerce transactions: A Comparative Analysis of Legal Frameworks. Challenges, and Opportunities(2024-12-06) Madwi Abdullah Almobarak; Holly HancockThis study examines the key legal and regulatory challenges affecting the enforcement and effectiveness of Online Dispute Resolution (ODR) mechanisms on peer-to-peer (P2P) e-commerce platforms in the United States (US), European Union (EU), and United Kingdom (UK). These jurisdictions were selected due to their significant roles in global e-commerce, distinct legal approaches to ODR, and varied regulatory environments, providing a comprehensive basis for comparative analysis. To achieve a deep understanding of these challenges, this research adopts a functionalist comparative methodology. This approach is particularly suited for this study because it enables an analysis of how different jurisdictions’ legal systems function in practice to support or hinder the resolution of disputes on P2P e-commerce platforms. Rather than merely comparing legal rules or doctrines, the functionalist approach focuses on how legal norms and institutions perform similar societal functions or address common problems. In the context of ODR, this allows for the identification of common challenges and effective solutions across different legal systems. Employing a functionalist comparative methodology, the research focuses on three primary comparators: the enforceability of ODR agreements and awards, data protection and privacy laws, and accessibility and user trust. The analysis reveals that while ODR mechanisms are essential for resolving disputes in P2P e-commerce, their effectiveness is significantly influenced by jurisdiction-specific legal frameworks. In the US, the Federal Arbitration Act supports the enforceability of arbitration agreements, facilitating ODR but raising concerns over consumer rights. The EU’s emphasis on consumer protection through directives and the General Data Protection Regulation (GDPR) enhances user trust but may hinder ODR efficiency due to stringent compliance requirements. The UK’s post-Brexit landscape strives to balance consumer protection with business flexibility, creating unique challenges and opportunities for ODR implementation. The study concludes that harmonizing ODR standards across jurisdictions and integrating emerging technologies like Artificial Intelligence and blockchain can enhance the effectiveness, fairness, and accessibility of ODR mechanisms globally. Recommendations include adopting international standards such as the UNCITRAL Technical Notes on ODR, ensuring compliance with data protection regulations, and educating users about ODR processes and their rights. These measures aim to strengthen user trust, improve dispute resolution outcomes, and support the sustainable growth of P2P e-commerce platforms worldwide.9 0Item Restricted Confidentiality in International Commercial Arbitration: A Comparative Study(University of Leicester, 2024-01-19) Deraan, Muteb; Ahmed, MasoudConfidentiality is a key factor in the arbitration process, as it assists the parties to a dispute in maintaining privacy and overcoming the potential damaging effects of the disclosure of critical information. However, there is no provision in international standards for the arbitration mechanism which relates to confidentiality. Therefore, this research focuses on confidentiality in international commercial arbitration, and, in particular, understanding the role of confidentiality in international commercial arbitration within the context of Saudi Arabia. A comparative study was conducted, which analyzed two jurisdictions (France, and England and Wales) in regard to confidentiality, while considering what the Kingdom of Saudi Arabia (KSA) can learn from these two jurisdictions. It was found that there are no provisions in the law of either jurisdiction regarding confidentiality; it is a duty agreed upon by the parties or decided by the arbitral tribunal. A Law Commission report also suggested that confidentiality should not be included within legislation regarding arbitration, as this will make it more complex, and the matter should remain one for parties to decide in their arbitration proceedings. There were a few recommendations to improve the KSA’s current Saudi Arbitration Law 2012 in terms of providing more flexibility and comfort regarding confidentiality, and also in terms of the need to modernise the legal structure, aligning it with international standards in order to achieve the national development plan Vision 2030. Despite new rules, such as CSSA, providing many changes in international arbitration, these new rules do not address aspects of confidentiality.37 0Item Restricted The Comparative Scope for Arbitration of Patent Disputes: In the U.S., Switzerland, and Australia(Saudi Digital Library, 2023-11-28) Alkaladi, Turki Ali Saleh; Dharmananda, KanagaThis paper critically examines the relationship between arbitration and intellectual property, specifically patent disputes. This paper adopts a comparative analysis approach and will compare the approach taken by civil law and common law systems toward the arbitration of patent disputes. This paper will primarily focus on the United States of America, Switzerland, and Australia. The process of obtaining a patent will be analyzed. The legislation and case law regarding the arbitrability of patent disputes will be discussed. A clear distinction between patent and standard essential patent disputes will be demonstrated. The difference between erga omnes and inter partes patent arbitral awards effects will be illustrated. The enforcement and recognition of arbitral patent awards will be critiqued, which demonstrates arbitrating patent disputes face various recognition and enforcement hurdles. Multiple factors need to be considered before determining whether arbitration is the right forum for resolving patent disputes. This should be determined on a case-by-case basis. In conclusion, the outlook for arbitrating some patent disputes is unclear, but arbitration should be the preferred forum for standard essential patent disputes to keep royalty rates confidential.Item Restricted Third-Party Funding in International Commercial Arbitration – Navigating Independence and Impartiality in Context.(Saudi Digital Library, 2023-06-19) Almashari, Abdulaziz; Tachia, MyrtoInternational commercial arbitration has gained widespread popularity as an appropriate alternative mechanism for resolving transnational commercial disputes. Arbitration, despite its benefits, may incur substantial monetary and temporal costs, especially in cases where the conflict is intricate and entails substantial financial resources. Third-party funding (TPF) may serve as a prospective resolution. The utilisation of TPF poses a distinctive array of ethical, legal, and procedural concerns that necessitate meticulous examination. There have been identifiable fears related to the inevitability of disproportionate benefits granted to entities/individuals that have obtained funding. The issues brought about by TPF revolve around the involvement of the financier in the arbitral proceedings – especially considering that the funding organisation possesses an inherent stake in the final outcome of the matter in question. The selection of arbitrators by the parties may create potential conflicts of interest, this may occur when an arbitrator has a significant link with a financier involved in the case. Another point of question is the investigation on whether or not funders have the responsibility to mandatory disclose sensitive and influential information. TPF may pose a potential risk of incentivising the pursuit of frivolous or speculative claims as a result – this is due to the possibility that parties may be more inclined to pursue claims with a low probability of success if they are not assuming the associated costs. In addition, the accessibility of TPF raises significant inquiries regarding its probable influence and effect on the fairness, impartiality, and integrity tenets of the arbitral proceedings. A potential issue that may arise is the possibility of the funding entity exerting inappropriate control over the tribunal with the intent of preserving their financial investment; which hinders the independence of the parties involved in the proceedings. These topics have been extensively discussed and analysed in a public forum: the International Council for Commercial Arbitration (ICCA) and Queen Mary College at the University of London (QMUL) established a Task Force with the purpose of evaluating the issues mentioned above. The study was made publicly available in April of 2018 and suggests the implementation of additional legal prerequisites which may result in increased expenses as well as additional time constraints in contrast with litigation as a form of dispute resolution. It is argued by Bogart that the above-mentioned report’s findings have the potential to diminish the appeal of the process of arbitration, particularly since the concerns highlighted are rarely seen as of major importance by domestic courts. As an illustration, the practise of TPF is extensively utilised within the United Kingdom, despite virtually any kind of mandatory disclosure – The Court of Appeal has recently acknowledged that the practise of TPF constitutes a recognised and authorised activity. The aforementioned apprehensions regarding the domain of arbitration underscore the crucial significance of preserving and guaranteeing its fundamental principles and safeguarding the reputation and validity of the arbitral mechanism. The resolution of such issues ought to be accomplished through the implementation of unequivocal and adequate guidelines that ensure the autonomy of arbitrators. Preserving the procedural tenets of commercial arbitration is of paramount significance, necessitating the examination of the substantially augmented utilisation of TPF within its domain. The primary inquiry that emerges from these apprehensions pertains to the appropriate course of action and likely consequences related to whether or not a successful acknowledgement regarding conflicts of interest and disclosure as well as the demand for greater transparency arising from third-party funders in an effort to uphold the procedural principles of fairness and impartiality. This research essay advocates for increased or standardised disclosure of TPF as a means of preventing conflicts of interest, upholding and maintaining transparency, adhering to principles of procedural good faith, as well as steering clear of the exploitation of the process of arbitration as a whole – holding a differing opinion on Bogart’s notion of TPF, who essentially views it as an extended arm of corporate finance. Non-disclosure of conflicts of interest may jeopardise the fundamental basis of the award made by arbitration and result in the court's refusal to uphold the decision. This is considering that overlapping interests may qualify as a basis for setting aside or denying enactment of an arbitral decision. This essay aims to analyse the application of third-party funding in the context of international commercial arbitration – the methodology of the essay shall be structured in the following manner: The first chapter aims to present a general review of TPF, including the justification for the investigations of this paper, and the identification of the primary factors that render TPF susceptible to conflicts of interest. The second chapter will analyse the ethical considerations of TPF arrangements and their influence on the arbitral procedure. The analysis will assess the potential conflicts of interest that may arise between arbitrators and financiers. The third chapter of this study will analyse the possible advantages and disadvantages of not addressing TPF disputes in the context of international commercial arbitration – it will evaluate the effects of TPF on the parties involved (including the tribunal as well as the mechanism of arbitration in general). Additionally, this chapter will examine the effectiveness of mandatory disclosure as a practical and necessary solution to this issue. The fourth chapter will serve as the concluding section of the study, wherein the primary objective is to present a comprehensive summary of the significant findings. Additionally, this chapter will provide recommendations for future developments and research endeavours in this field.