Chapter 5 focuses on the regulatory argument of TPAF. It settles the competing arguments of banning or permitting TPAF. It then identifies the normative goals of TPAF that should be preserved throughout the arbitral process. In addition, it comparatively analyzes the different choices for regulating TPAF and the propriety of arbitral institutions to assume that role, given the other imperfect choices. Chapter 5 emphasizes the inevitable need for an institutional regulatory framework that achieves the twin goals of enhancing arbitral justice that dictates avoiding the funder’s control, and a commitment to traditional arbitral values like efficiency, party control, and arbitrator impartiality. Even if the institutional choice may not be the optimal choice, Chapter 5 argues that it is worth trying. The premise of the institutional regulatory choice is that the funding industry is controlled by certain repeat players, which may open the door for skepticisms of the reasons for which the champerty doctrine was basically relaxed. As such, limiting the funder’s role throughout the arbitral process should be met with less skepticism. Arguments of party autonomy, jurisdictional proprietary, arbitral justice, and the institutional environment of arbitration determine the propriety of the institutional choice, rather than the individual initiatives, of regulating TPAF.

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