RE: Portland advisers and ECA funding11 Mar 2019 10:55
I couldn't get that link to work, but visiting the Global Arbitration Review pages, I stumbled across this (specifically about a Spanish claim, but referring generally to all). I wonder if it's relevant to the ECT discussions we've been having here about any award being reduced by up to 50% if due diligence wasn't adequately conducted by the claimant:
"Mr Born took issue with the majority’s position in respect of the investors’ due diligence. He asserted that ‘it is not the role of the tribunal to pass abstract judgment on the quality of [the investors’] due diligence’[23] and that ‘an investor is under no abstract duty to conduct due diligence’[24] as a condition to investment protection as a matter of international law. In this respect, Mr Born differentiated the impact of an investor’s due diligence between cases in which such work would have contradicted asserted expectations, on the one hand, and scenarios where such efforts would have merely confirmed what the investor claimed, on the other.
As previously noted, the impact of an investor’s due diligence has been a battleground in a significant number of energy arbitrations during the past three years. It will be interesting to see the extent to which Mr Born’s dissenting opinion in Antaris is utilised by investors in the future".