Code of Capital

This article charters the emergence of third-part litigation funding (TPF) in international investment law. It shows how first national and later international legal service providers have litigated to create a favourable legal environment for the emergence of TFP. Legal victories in the national context where hard won and subject to judicial oversight and regulation. On the international level, however, TPF has been approached with a presumption of legality by arbitrators, in a context where few other actors can regulate it. This exacerbates the legal dynamics created by ‘arbitration without privity’, where the investor alone is granted procedural and substantive rights under investment law. TPF allow investors to affect the law strategically. Such developments can take place along the four attributes of priority, durability, universality, and convertibility that construct capital legally. Expanding these attributes creates concomitant obligations for host states. The presumption of legality adopted by arbitrators thus distributes capital from host states to foreign investors. The article ends with discussing why this dynamic is unlikely to change from within the regime.