Third-Party Funding in International Arbitration

Introduction

The significance of third-party funding (TPF) (also referred to as litigation funding, third-party financing or legal finance) in international arbitration has become axiomatic during the past decade, even if its nature (and very definition) remain as contested as the procedural and regulatory initiatives that have accompanied its growth and development. Indeed, it is difficult to identify another dimension in the field of international arbitration the progression of which has been more consequential for the practice of international arbitration during this period than TPF. This is a function of many variables, including, but by no means limited to:

• legal and regulatory initiatives in many jurisdictions to liberalise historic prohibitions and restrictions on TPF (sometimes as part of renewed efforts to facilitate access to justice in the context of reduced public or legal aid funds);
• the relative efficacy of initiatives for self-regulation (albeit not without controversy);
• the maturation and deepening of the TPF market;
• the standardisation of some market practices, even as greater specialism and focus have emerged among some funders;
• the enhanced awareness of litigating parties and their counsel of the potential advantages of TPF and the means of accessing it; and
• the considerable engagement of the international arbitration community with the legal and practical issues raised, or perceived to be raised, by TPF.

It is striking that it was only in 2011 that Lord Justice Jackson welcomed the establishment of a Code of Conduct by the Association of Litigation Funders,^[2] which itself followed less than two years after Lord Jackson’s Review of Civil Litigation Costs in England and Wales.^[3] Since the first Code of Conduct,^[4] numerous developments have occurred in the sphere of TPF, including: its legal and regulatory acceptance for international arbitration disputes in important arbitration jurisdictions such as Singapore and Hong Kong; its increased use in practice and concomitant visibility in the jurisprudence (including regarding issues such as disclosure, costs and enforcement); and enhanced scrutiny and consideration by academics and practitioners in various studies and reports, perhaps most prominently in the Report of the International Council for Commercial Arbitration (ICCA) – Queen Mary Task Force on Third-Party Funding in International Arbitration of 2018 (the ICCA-Queen Mary Task Force).^[5]

TPF can be employed to finance a broad range of arbitration (and litigation) disputes, conducted across different sectors and under different procedural rules. TPF is reported to be frequently used in merger and acquisition (M&A) and commercial arbitration and it also finds use in investment treaty arbitration.^[6] Although some of the particularities of M&A arbitration may have a bearing on the way TPF operates in this sub-type of commercial arbitration, it is fair to say that, overall, the basic ‘mechanics’ of TPF, as well as some of the main procedural issues posed by it, do not significantly vary between M&A arbitration and other forms of arbitration. The same holds true for the regulation of TPF, which is generally uniform across sub-types of commercial arbitration, with some potential differences when it comes to investment treaty arbitration (and differences with litigation). Accordingly, to understand the role of TPF in M&A arbitration, one cannot ignore its role in the broader context of international arbitration.

While not purporting to be comprehensive in any way, this chapter canvasses some of the most significant initiatives and developments regarding TPF to take stock of the broad state of play of TPF in M&A arbitration as well as in international arbitration in general, which shows every sign of becoming yet more consequential in this field during the coming decade. Following a brief definitional overview of TPF, this chapter highlights some of the particularities concerning the role of TPF in M&A arbitration. It then considers, more generally, the mechanics of TPF – and, in particular, the participants involved, the due diligence process and the economic and legal terms of funding agreements. Thereafter, it addresses the regulation of TPF, looking at certain common law and civil law jurisdictions that are prominent in this sphere, as well as pertinent arbitration rules, guidelines and self-regulation. Finally, the chapter canvasses some issues regarding TPF in arbitral proceedings, including confidentiality, disclosure, security for costs and other cost-related issues.

Defining TPF

Defining TPF is itself the subject of controversy.^[7] This was indeed one of the predicate issues faced by the ICCA-Queen Mary Task Force in the course of its work.^[8] The definition of TPF has also been discussed in the United Nations Commission on International Trade Law (UNCITRAL) Working Group III.^[9] An aspect of this definitional difficulty is that the financing of a party to a dispute by a non-party is an operation that can be carried out by a variety of actors, for a variety of reasons and purposes, and through a variety of legal and financing tools. Thus, for example, the UNCITRAL Secretariat noted, with regard to the broad and inclusive definition of ‘third-party funding’ contained in its 2022 draft provisions on procedural reform,^[10] that:

[UNCITRAL Working Group III] may wish to consider whether this broad definition is appropriate, as it could inadvertently result in regulating other types of support (for example, amicus curiae submissions in support of a position, pro bono legal services provided by a law firm and legal advice provided by an advisory centre).^[11]

It should also be noted that the purpose for which TPF is defined can affect the definition itself. For example, a descriptive, socio-economic definition of TPF is not necessarily the same as a legal definition of TPF.

To delineate the scope of its enquiry, the ICCA-Queen Mary Task Force formulated the following working definition of TPF:

The term ‘TPF’ refers to an agreement by an entity that is not a party to the dispute to provide a party, an affiliate of that party or a law firm representing that party,

1. funds or other material support in order to finance part or all of the cost of the proceedings, either individually or as part of a specific range of cases, and
2. such support or financing is either provided in exchange for remuneration or reimbursement that is wholly or partially dependent on the outcome of the dispute, or provided through a grant or in return for a premium payment.^[12]

This is a broad formula that illustrates the multitude of forms that TPF may take. For example, it encompasses a variety of arrangements other than ‘archetypal’ TPF provided by commercial funders (although this sub-category is itself amorphous to some extent), such as covering work carried out by legal counsel on a conditional fee or contingency basis and certain forms of insurance – for both claimants and respondents.^[13]

However, in a narrower sense, TPF can denote ‘non-recourse’ legal finance provided by a commercial funder under the terms of a funding agreement, typically to a claimant (or sometimes defendant) in return for a share of the amounts recovered in the proceeding. A more elaborate arrangement is ‘portfolio financing’, whereby financing is provided in respect of a group or portfolio of claims held by a certain entity or entities, or to legal counsel working on multiple cases, usually on a conditional fee or contingency basis.^[14] It is mainly with these two forms of TPF that this chapter is concerned.

Role of TPF in M&A arbitration

Before considering the more general aspects of TPF, its regulation and its effects on arbitral proceedings (which apply to M&A arbitrations as well as to other forms of arbitration), we highlight some of the particularities of TPF in M&A arbitration.

M&A arbitration indicates the arbitration of disputes relating to mergers and acquisitions, generally arising out of, or in relation to, the underlying transaction documents. Typically, those disputes arise between a seller and a buyer, although they can also involve other subjects such as insurers, if there is a warranty and indemnity (W&I) insurance policy (and this provides for arbitration of the disputes arising thereunder).^[15]

Arbitration is a preferred method for resolving M&A disputes.^[16] According to the most recent statistics published by the London Court of International Arbitration (LCIA) in 2021, shareholders’ agreements, share purchase agreements (SPAs) and joint venture agreements were the fourth most common types of agreements seen in LCIA-administered arbitrations (reflecting 14 per cent of all agreements).^[17] The fact that arbitration is often chosen as a dispute settlement method for M&A disputes is not surprising, if one considers that arbitration generally provides for confidentiality, finality and enforceability of the award, flexibility and the possibility of having the dispute adjudicated by arbitrators with suitable expertise. Although it is difficult to have access to statistics (because commercial arbitration proceedings are typically confidential and so are funding agreements), it has been pointed out that M&A (as well as commercial) arbitrations are frequently funded.^[18] A closer look at the most common types of M&A disputes helps to explain why those are suitable for TPF but also shows that, at the same time, not all M&A disputes may meet the interest of a funder.

It is commonplace to say that the most common types of M&A disputes are post-closing disputes, concerning alleged breaches of the representations and warranties set out in the transaction agreement (typically, the SPA), alleged misrepresentations during the negotiations, or the adjustment of the purchase price in accordance with the mechanisms set out in the transaction agreement (for example, earn-out mechanisms).^[19] Those disputes are typically fact-intensive, complex and can involve significant sums in dispute. Legal fees can therefore be significant and expert evidence may be required. The relief sought typically includes monetary damages (or the restitution of part or the whole price paid by the buyer), although it can also include other forms or relief, such as the rescission of the SPA.

In light of the foregoing, post-closing disputes are often suitable for TPF. The claimant may be inclined to use TPF to mitigate the financial burden of arbitrating the claim (particularly if, as it is often the case, it is the buyer, which has already paid significant amounts to the seller under the terms of the SPA). A funder may see a potentially rewarding investment in funding the claim. Furthermore, it is not uncommon for the parties to stipulate in the transaction agreement that the provisional purchase price will be paid into an escrow account.^[20] In such a case, should, for instance, the buyer deem that the final purchase price is to be reduced (e.g., because new liabilities of the target company have arisen after the closing, which are covered by the representations and warranties), the buyer would be entitled to bring a claim against the seller and, if successful, satisfy its claim out of the amounts in escrow. The escrow mechanism facilitates the enforcement of price-related claims (including price adjustment claims) and, therefore, makes the enforcement of a possible award easier. This is also a factor that can encourage a funder to fund these kinds of claims.

There are other types of M&A disputes that may not be suitable to attract TPF. Apart from pre-closing disputes (which normally are resolved quickly and may not be suitable for a full-blown arbitration), another type of proceeding that often arises out of the transaction agreement is an expert determination proceeding.^[21] Although the dividing line between arbitration and expert determination or appraisal can be blurred, it exists and entails important consequences. Expert determinations normally involve specific and technical questions rather than factual and legal disputes.^[22] Most importantly, expert determinations are not considered to be awards and, therefore, are not enforceable under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958.^[23] This is one of the main reasons why a funder may not be as interested in financing expert determinations.

That said, the most frequent disputes that can arise out of an M&A trans­action are suitable for TPF. To conclude, although they are not M&A arbitrations, investment arbitrations can also sometimes arise following M&A transactions, in relation to public measures adopted in respect of the target company or the buyer. For example, Ares and MetalGeo v. Georgia arose out of the declaration of invalidity of an SPA for the acquisition of a stake in a state-owned steel pipe manufacturing plant.^[24] This kind of dispute (as with investment arbitrations in general) may also be suitable for TPF.

‘Mechanics’ of TPF

The mechanics of TPF can best be understood by parsing out the core elements: namely, the participants involved; the due diligence process; and the economic and legal terms of funding agreements.

Participants

Key actors for TPF include the funded party (whether a corporate entity or legal person, individual, government or other entity), the funder and the funded party’s legal counsel. In a typical scenario, the funded party is a claim holder: a person or entity that has a legal claim and intends to resolve it via arbitration (or, indeed, other legal) proceedings against a respondent. The funded party could also be the respondent to legal proceedings in which it has a counterclaim that is funded (although this is not the only circumstance in which a respondent to legal proceedings may benefit from TPF, since a respondent typically has an economic benefit or advantage from successfully defending a claim).^[25]

The claim holder could be interested in TPF for many reasons. This is not only where the claim holder cannot afford some or all of the representation costs, arbitrators’ fees and other costs of an arbitration or is impecunious (although such a situation is certainly catered for by the existence of TPF). It may also be because the claim holder prefers to allocate its resources differently, including through risk-sharing or seeking to turn its legal department into a profit rather than a cost centre.^[26]

The second key actor is the funder. Commercial funders are typically public companies, private companies or private funds^[27] (including high net worth individuals and family offices that fund cases). There is increasing liquidity in the TPF market with many institutional investors investing in the sector. The third key actor is the legal counsel advising and representing the claim holder.

There are agreements that regulate the relationships between these three participants. The cornerstone is the funding agreement, which is essentially an agreement between the claim holder and the funder regulating the conditions for funding (including the cessation of funding), security over the proceeds of the arbitration or litigation, means of resolving disputes such as concerning settlements and choice of legal counsel, and the economics or waterfall arrangements for payment from a successful outcome. In addition to the funding agreement, there is an engagement letter or agreement between the legal counsel and the claim holder. The legal counsel acts on behalf of the claim holder, which retains control over the claim and the right to instruct the legal counsel. As such, there is no attorney–client relationship between the legal counsel and the funder, although the funding agreement may (and typically does) provide that the claim holder and its legal counsel keep the funder updated about key developments in the case. Notably, the funder’s success is partly dependent on the legal counsel, so the claim holder’s choice of legal counsel may be one of the factors that a funder considers when choosing whether or not to fund a claim.^[28]

Finally, it is not uncommon for the legal counsel to act partly on a conditional fee or contingency basis, with the funder paying a portion of the legal counsel’s fees as they accrue, with a recovery of the discount offered and a success fee to be paid to the legal counsel out of the proceeds of the case if and when it is successful. This scheme entails the legal counsel having ‘some skin in the game’ and sharing some of the funding risks with the funder.^[29]

Due diligence

The due diligence phase, which typically precedes the signing of the funding agreement, allows the funder to assess the value of the claim and the risks associated with it, allowing the funder to determine whether the case meets its risk profile and appetite and, if so, how much the rate of return should be, which will then be factored into the economics offered to the claim holder.

The assessment of a claim is based on a number of considerations, including:

• the identity of the claim holder and counterparty;
• jurisdictional and admissibility aspects of the claim;
• merits aspects (both factual and legal);
• the amount of damages that could reasonably be awarded (and lower thresholds);
• the likelihood that the litigating counterparty will pay the ensuing award;
• whether the litigating counterparty holds enforceable assets;
• the likely duration of determination of the claim; and
• the costs for bringing the claim.^[30]

The value of the claim should be high enough to ensure that, if the claim is successful, the sums invested by the funder will be refunded with the funder’s expected rate of return. Also, there should remain a sufficient margin for the claim holder.^[31]

The due diligence process frequently entails a first level of review conducted by the funder internally (which can precede the non-binding offer of economic terms for funding the case, subject to further diligence and determination) and a second level of review, often with the advice of external counsel (which can precede an investment committee decision to fund the case and the preparation of the funding agreement).^[32] Many funders ask to have an exclusivity period during the latter part of the due diligence phase (at least after they have offered indicative economic terms to fund the case) to avoid spending time and resources in circumstances where the claim holder then chooses to proceed with another funder.^[33]

Funding agreement

The economic and legal terms of the funding agreement vary from case to case. However, based on the authors’ experience, there are some recurring themes and mechanisms that are widely prevalent in funding agreements that can otherwise diverge materially in structure and style. This is largely true, for example, regarding economic formulae (even if the economics themselves can be quite heterogeneous), circumstances pertaining to the termination of the funding agreement, issues concerning confidentiality and privilege, settlement and legal counsel.

The funded amounts are typically determined in accordance with a case budget.^[34] The funder may also agree to pay, or cause to be paid (such as with after-the-event insurance, or otherwise), adverse costs orders that might be issued against the claim holder, or to provide security for costs for the claim holder, if the tribunal so directs.

After recovering the investment sum, a funder’s returns are often calculated as a function of the invested amount (typically the invested amount multiplied by a figure) or as a function of the recovered amounts (typically a percentage of the recovered amounts). The two formulae are often combined to the effect that the funder is entitled to ‘the greater of’ a multiple of the invested amount and a percentage of the proceeds of the case. It is also not uncommon to see a sliding scale of percentages and multipliers to the extent that the further in time the recovery, the higher the multiplier or percentage to the funder (reflecting standard economic principles of internal rate of return and the time value of money). Conversely, the funding agreement may provide that the higher the recovery with reference to certain threshold amounts, the lower the multiplier or percentage to be paid to the funder. Counsel with an economic interest in the outcome (such as by way of a conditional fee or contingency agreement) will typically also recover their discount and success fee sums before the claim holder. Generally, the claim holder will be paid the remaining sums from the proceeds after the funder and counsel, in what is frequently styled an overall waterfall arrangement of the distribution of proceeds.

TPF is typically provided on a non-recourse basis, meaning that if the claim holder loses the case, no funds need to be paid to the funder (and there is usually no security or guarantees, other than security against the proceeds of a successful outcome, which can be effected in various ways depending on the applicable law or laws).

Funding agreements also typically contain provisions governing how settlement decisions are made. The claim holder retains control over its claim and the proceedings, with the funder having a supervisory role (although the degree of supervision may be more or less intense).^[35] A corollary is that the decision of whether to settle or not should be left with the claim holder. However, such a decision may have affect the funder’s investment (if the claim holder settles for too low an amount or, conversely, wishes to continue with its claim based on unrealistic damages expectations, where it may be more prudent to settle for a lesser sum). For these reasons, a typical provision entails referring the matter in stipulated eventualities to an independent counsel, who will evaluate whether a settlement decision is appropriate in the circumstances of the case.

Other key terms of funding agreements are clauses relating to the funder’s ability to terminate the agreement. This is a tool that the funder may use, inter alia, if it has reason to believe that prosecuting the case is no longer advisable (for instance, because some occurrence has significantly raised the risk level) or if the claim holder has become insolvent (although that is not necessarily an insurmountable obstacle to the claim and funding proceeding).

Regulation of TPF

Each country has its own regulations (or lack thereof) when it comes to TPF and there are differences between the approach taken by some common law jurisdictions (as well as marked differences between respective common law jurisdictions) and some civil law jurisdictions. Given the multiplicity of legal and regulatory responses to TPF in jurisdictions around the world and the significant quantity of detailed assessments that have been carried out on jurisdiction and regionally specific bases, this chapter only briefly addresses high-level and indicative aspects of approaches to TPF in certain jurisdictions.

Common law jurisdictions

Starting with England and Wales, the widespread use of TPF may seem counter-intuitive when considering the English law doctrines of maintenance and champerty. The doctrine of maintenance refers to a person ‘support[ing] litigation in which they have no legitimate concern without just cause or excuse’.^[36] The doctrine of champerty is an aggravated form of maintenance in which the intervening ‘stranger’ to the litigation also has a financial interest in the outcome of the claim.^[37] The goal of their prohibition was, inter alia, to protect vulnerable litigants at risk of exploitation, prevent the proliferation of speculative claims and guard against the tampering of evidence.^[38] The Criminal Law Act 1967 abolished the torts and crimes of maintenance and champerty (although it did not exclude the possibility of certain contracts being treated as contrary to public policy or otherwise illegal).^[39]

England and Wales now recognises TPF (and, indeed, many of the largest funders are prominent in the UK and London litigation markets) but does not subject it to a formal regulatory framework. Nevertheless, some degree of oversight of TPF and the role of funders can be evidenced in the jurisprudence. For instance, in the case of Excalibur Ventures LLC v. Texas Keystone, the Court of Appeal of England and Wales held that:

Litigation funding is an accepted and judicially sanctioned activity perceived to be in the public interest. What the judge characterised as ‘rigorous analysis of law, facts and witnesses, consideration of proportionality and review at appropriate intervals’ is what is to be expected of a responsible funder . . . and cannot of itself be champertous.^[40]

More recently, the English courts have confirmed their favour of TPF, such as in Akhmedova v. Akhmedov, in which Mrs Justice Knowles noted, inter alia, that: ‘the role played by professional funders is now seen by the courts as “highly desirable” in order to facilitate access to justice’.^[41]

The position in Ireland is less favourable for TPF. In 2017, in the case of Persona Digital v. The Minister for Public Enterprise, the Irish Supreme Court held that TPF by an entity with no independent interest in the underlying proceedings in return for a share of the proceeds from litigation was prohibited under Irish law as contrary to the torts of maintenance and champerty.^[42] Despite this ruling, it has been suggested that TPF in international arbitration may be permissible in Ireland since the case concerned litigation rather than arbitration,^[43] albeit the point presently remains untested.

With regard to the United States, some authors have pointed out that the advent and rise in popularity of TPF has been slower than in other jurisdictions, especially when it comes to commercial disputes (as opposed to consumer disputes).^[44] In terms of legal framework, although there have been proposals to regulate TPF (or, at least, certain key aspects of it, such as disclosure) at the federal level,^[45] TPF remains regulated only at the state level.^[46] Similarly, in Canada, the legal framework applicable to TPF varies between provinces. In some common law jurisdictions of Canada, the doctrines of maintenance and champerty can still constitute an obstacle to the full recognition of TPF.^[47] However, there are positive developments that concern, inter alia, the use of TPF in international arbitration. Of relevance is the amended British Columbia International Commercial Arbitration Act, which expressly recognises TPF as not being contrary to public policy in British Columbia for the purposes of the recognition and enforcement of arbitral awards.^[48] Also relevant for the purposes of international arbitration is the Crystallex case (a case under the Companies’ Creditors Arrangement Act parallel to the Crystallex v. Venezuela International Centre for Settlement of Investment Disputes (ICSID) arbitration),^[49] where the courts of Ontario have approved certain financial arrangements entered into by Crystallex to fund its treaty claim.^[50] Last, in the context of court litigation, funding agreements have sometimes been scrutinised and approved by the courts, including by the Federal Court in 2021 in Difederico v. Amazon.com.^[51]

In 2017, Singapore liberalised its approach to TPF by abolishing the torts of maintenance and champerty and expressly legalising TPF in relation to international arbitration proceedings, as well as for connected court and mediation proceedings.^[52] According to the 2017 law and regulations, the ‘principal business’ of the funder must be the funding of dispute resolution proceedings and it must have ‘a paid-up share capital of not less than US$5 million’.^[53] A funder that fails to comply with these requirements will not be able to enforce its rights under a TPF agreement unless the lack of compliance was accidental or inadvertent.^[54] Requirements are also imposed on counsel, which must disclose the existence of TPF, as well as the identity and address of the funder, to the tribunal and other parties to the proceedings at their inception (or as soon as possible thereafter).^[55] The scope of proceedings for which TPF is admitted was broadened in 2021 and now covers ‘arbitration proceedings’ tout court, whether international or domestic, and connected court proceedings.^[56]

Hong Kong, another common law jurisdiction that recognises the doctrines of maintenance and champerty, has similarly followed suit in recognising TPF. Following the recommendation of the Law Reform Commission, Hong Kong enacted the Arbitration and Mediation Ordinance 2017, which now permits TPF of arbitration.^[57] Of note is the obligation to disclose the existence of a funding agreement within 15 days of the conclusion of the agreement, which is imposed directly on the funded party, not on its counsel.^[58] As for the obligations of funders, the Code of Practice sets out a number of rules.^[59] Regardless of whether they are corporate entities or individuals, funders have to ensure that their promotional materials are ‘clear and not misleading’ and have to ‘take reasonable steps to ensure that the funded party is made aware of the right to seek independent legal advice on the funding agreement before entering into it’.^[60] The Code also requires funders to have access to at least HK$20 million of capital, to effectively manage any conflicts of interest and to submit annual returns to the advisory body.^[61] In August 2021, the Hong Kong government established an Advisory Body on Third Party Funding of Arbitration and Mediation.^[62]

Turning to India, the Arbitration and Conciliation (Amendment) Act 2015 and its 2019 amendment neither regulate nor prohibit TPF.^[63] However, according to certain authors, TPF is impliedly recognised in certain provisions of the Act and of the Code of Civil Procedure 1908.^[64] In the case of Bar Council of India v. AK Balaji, the Supreme Court of India observed that ‘there appears to be no restriction on third parties (non-lawyers) from funding the litigation and getting repaid after the outcome of the litigation’.^[65] Accordingly, there is no blanket restriction on financing parties to a dispute, as long as the funder is not bound by Indian Bar Council Rules.^[66]

In Australia, TPF has been recognised at the federal level, with the Federal Court having held in 2002 that:

the Court must be seen to be willing to move with the times. There are ongoing concerns about the high costs of litigation; there are risks that citizens with justifiable causes of action may be kept out of courts because of their inability to pay the costs of litigation or because they fear the financial risks of litigation.^[67]

Furthermore, maintenance and champerty have been abolished in some (but not all) states in Australia.^[68] In some states, specific regulations are imposed on funders.^[69]

Civil law jurisdictions

In the French legal system, TPF is largely unregulated and has only been addressed by arbitral bodies, including the International Chamber of Commerce (ICC) International Court of Arbitration, and other non-legislative authorities such as the National Bar Council and the Paris Bar.^[70] In general, TPF is considered not to be prohibited, a view supported by a 2006 decision of the Court of Appeal of Versailles.^[71] Of relevance is a 21 February 2017 resolution adopted by the Paris Bar Council on the practice of TPF in international arbitration,^[72] which addresses the professional and ethical obligations for lawyers in cases involving TPF.

Similarly, TPF is not expressly regulated in Italy. Eminent commentators have submitted that funding agreements do not correspond to any of the ‘typical contracts’ regulated by the Italian Civil Code.^[73] Consequently, funding agreements fall under the spectrum of Article 1322(2) of the Code, according to which the parties shall be free to conclude ‘atypical contracts’ in so far as those pursue interests worthy of protection under the law.^[74] In this regard, there is arguably nothing illicit or contrary to public policy in funding a party to a proceeding in return for a share of the proceeds, although some authors show some scepticism.^[75] A rule that may have a bearing on the debate on TPF in the Italian legal system is Article 13(4) of Italian Law No. 247 of 31 December 2012 regulating the legal profession. This provision could be interpreted as prohibiting lawyers from entering agreements whereby legal fees are comprised, in whole or in part, of a share of the assets in dispute (i.e., pactum de quota litis).

The same holds true for Switzerland, where TPF is neither specifically regulated nor prohibited.^[76] In this regard, commentators often refer to a 10 December 2004 decision of the Federal Supreme Court, which set aside a draft law proposed by the Cantonal Council of Zurich envisaging a prohibition on TPF.^[77] The Council focused, inter alia, on potential conflicts of interest on the part of lawyers.^[78] However, the Court concluded that, although caution was to be adopted with TPF, a general prohibition on it would be disproportionate and violate economic freedom.^[79]

In mainland China, TPF is neither prohibited nor expressly regulated.^[80] Nevertheless, the 2017 Investment Arbitration Rules of the Chinese International Economic and Trade Arbitration Commission expressly address TPF.^[81]

Similarly, in Japan TPF is not prohibited but there are some provisions in the Attorneys Act and the Trust Act that may have a bearing on TPF (although without being plainly applicable to it).^[82]

In South Korea, there is no specific regulation (or prohibition) on TPF, although some doubts have been expressed as to its compatibility with other legislative instruments, such as the Korean Trust Act and the Attorney-at-Law Act.^[83]

European Union

In June 2021, Axel Voss MEP submitted a report to the EU Legal Affairs Committee, proposing the adoption of a Directive of the European Parliament and of the Council on the regulation of third-party litigation funding in the European Union. The report advocates for the regulation and supervision of litigation funders and for the imposition of a limit on funders’ recovery, and addresses perceived ethical issues, disclosure and transparency and the powers of supervisory authorities and courts to enforce funding legislation.^[84] The International Legal Finance Association (ILFA) submitted a letter to the European Commission in response to Mr Voss’ report on 7 March 2022.^[85]

Arbitration rules, guidelines and self-regulation

The regulation of TPF is not confined to national laws. For example, provisions on TPF have found their way into institutional arbitral rules. In addition to those mentioned above, an interesting example is the Hong Kong International Arbitration Centre Rules of 2018, which contain provisions on (1) TPF addressing disclosure,^[86] (2) the potential impact of TPF on costs^[87] and (3) the relationship between TPF and confidentiality.^[88] Another example is the 2020 Arbitration Rules of the Milan Chamber of Arbitration, which address disclosure of TPF.^[89] The 2021 Arbitration Rules of the ICC contain a provision on disclosure of TPF.^[90] The ICC also addresses TPF in its 2021 Note.^[91] Finally, TPF is addressed in the Hague Rules on Business and Human Rights Arbitration^[92] and in the ICSID Arbitration Rules 2022.^[93]

Some arbitral institutions have chosen to deal with TPF in practice or guidance notes rather than in their bodies of rules. This is the approach adopted by, for example, the Stockholm Chamber of Commerce^[94] and the Singapore International Arbitration Centre.^[95]

At another level of ‘regulation’ – to the extent adopted by parties and arbitral tribunals – are the International Bar Association (IBA) Guidelines on Conflicts of Interest in International Arbitration. When they were revised in 2014, a provision was added to the extent that, if one of the parties to international arbitration proceedings is a legal entity, ‘any person or entity with a direct economic interest in, or a duty to indemnify a party for, the award to be rendered in the arbitration may be considered to bear the identity of such party’.^[96] It follows that a relationship between an arbitrator and such a third person or entity (including a funder) can be relevant for conflicts and disclosure purposes.^[97] Also of relevance is General Standard 7(a) of the IBA Guidelines, requiring that a party disclose ‘on its own initiative at the earliest opportunity’ any direct or indirect relationship existing, inter alia, between ‘the arbitrator and any person or entity with a direct economic interest in, or a duty to indemnify a party for the award to be rendered in the arbitration’.

Finally, some funders have chosen to self-regulate to some extent. In this respect, the most noteworthy example is the 2011 Code of Conduct for Litigation Funders, adopted by the Association of Litigation Funders of England and Wales (ALF), updated in 2018. This Code regulates the funding of litigation, arbitration and other dispute resolution procedures. It also includes a number of requirements, such as all funders being members of the ALF must have a minimum of £2 million of capital, must be audited by a recognised law firm and must be bound by a detailed complaints procedure.^[98] Another example is the ILFA, an association established in 2020 by six leading litigation and arbitration funders.^[99] ILFA members undertake to comply with a set of best practices elaborated by the association.^[100]

International investment agreements

TPF provisions can also be found in some ‘new-generation’ treaties with investment provisions. For instance, TPF is addressed in various ways in:

• the EU–Canada Comprehensive Economic and Trade Agreement;^[101]
• the EU–Singapore Investment Protection Agreement;^[102]
• the Canada–Chile Free Trade Agreement;^[103]
• the 2021 Canada Model Bilateral Investment Treaty (BIT);^[104] and
• the 2019 Netherlands Model BIT.^[105]

TPF has also been addressed within the context of the negotiations on the ‘modernisation’ of the Energy Charter Treaty.^[106]

As a final note, TPF is among the topics currently being considered by the UNCITRAL Working Group III within the scope of its work on investor-state dispute settlement reform. In particular, during the Working Group’s deliberations, concerns have been identified regarding the effects of TPF on arbitral proceedings and on the investor-state dispute settlement system.^[107] Accordingly, the UNCITRAL Secretariat was tasked with elaborating reforms options for the Working Group to consider. The Secretariat recognised that TPF remains largely unregulated^[108] and suggested a range of reform options. Other than prohibiting TPF, the Secretariat considered, inter alia, regulation to limit access to TPF to impecunious claimants, to disclose the use of TPF, to recover the costs of TPF and to establish a code of ethics for TPF.^[109] Those reform options were discussed by the Working Group during its 38th session.^[110] The Working Group expressed a preference for regulating TPF rather than prohibiting it altogether, and addressed several key issues laying foundations for its future work.^[111] Subsequently, the UNCITRAL Secretariat prepared draft provisions on TPF, which it submitted for comments to delegations and stakeholders on 6 May 2021.^[112] An updated version of the draft provisions on TPF forms part of the UNCITRAL Secretariat’s July 2022 draft provisions on procedural reform.^[113]

TPF and arbitral proceedings

TPF is widely recognised to be an important means of facilitating access to justice in cases that might not otherwise be financially feasible, as well as providing a degree of quality control of funded claims reflecting the funder’s independent due diligence. However, TPF does give rise to procedural issues that, although not unique to TPF, nevertheless manifest in particular ways in the context of TPF.

International law does not prohibit TPF and, given the liberalisation of TPF under many national legal systems and its recognition and acceptance in several institutional frameworks, arbitral tribunals have by and large accepted it as part of the arbitration landscape, as long as the integrity of proceedings is respected.

That being said, arbitral tribunals have often examined features of TPF. For instance, in the case of Abaclat v. Argentina, the claimants’ funder reportedly had a high degree of control over the claims.^[114] The respondent argued that this made the claims inadmissible. The tribunal held that, although the TPF arrangement affected the claimants’ procedural rights, the claimants had willingly accepted these terms.^[115] The tribunal thus found there was nothing to make the TPF agreement invalid and dismissed the admissibility objection.

Although a minority opinion, some arbitrators have expressed disapproval of TPF. In the case of Teinver v. Argentina, the tribunal found in favour of the claimants and the award reportedly entitled the funder to receive more than US$100 million under its funding agreement.^[116]

Dr Kamal Hossain, in his dissenting opinion, commented as follows:

The BIT is not intended to enable payment of awards to third party funders who are not ‘investors’ and who have no protected ‘investment’, and who only come into the situation in the circumstances described above to advance funds in order to speculate on the outcome of a pending arbitration.
The practice of TPF investment arbitration continues to be criticized by academics and professionals. The Funder’s role in this case may well be characterized as ‘champerty’, which has long been considered under English common law as being against public policy as it encourages vexatious litigation. A contract may be void for champerty, though it may not strictly amount to criminal offence. The purchase of a law suit by an attorney is champerty in its most odious form.^[117]

Nonetheless, the general view remains that TPF is an accepted part of the arbitration canon, as it has come to be in the courts of jurisdictions such as England and Wales in which it was previously considered anathema.

TPF and confidentiality

Despite the historic aversion to TPF in England and Wales, there is no general presumption in litigation in English and Wales mandating the disclosure of TPF. For example, in the case of Arroyo & Ors v. BP Exploration Co (Colombia) Ltd, the High Court of England and Wales noted how there is no general rule for disclosure of financing in court proceedings. In that case, the Court held that ‘parties with funding arrangements . . . are entitled to be treated in the same way as other parties to litigation’.^[118] Further, the judge observed that ‘[i]n privately funded litigation there is no obligation on either party to disclose how a case is being funded’.^[119]

However, some tribunals have requested disclosure of the existence of TPF, sometimes through procedural orders.^[120] More controversial still is whether any such disclosure should include the terms of the funding agreement.^[121]

In the case of Teinver v. Argentina, the claimants admitted that they had concluded a TPF agreement with Burford after queries from the respondent, but refused to disclose the terms of the agreement.^[122] The respondent argued that Burford had become the real party to the arbitration.^[123] The tribunal rejected this argument, noting that the transfer of rights would in any event have occurred after the initiation of the arbitration.^[124]

In South American Silver v. Bolivia, the tribunal refused to grant security for costs to Bolivia against South American Silver just because the latter had received TPF, but ordered the disclosure of the identity of the funder for purposes of transparency,^[125] albeit not the disclosure of the terms of the agreement.^[126]

In this regard, the case of Zbigniew Piotr Grot and others v. Moldova is also of note because of the tribunal’s response to Moldova’s request for information about the existence and identity of a funder backing the claimants. The claimants confirmed that there was a funder and pointedly added that its recourse to funding was the result of Moldova’s failure to pay the advance on costs of the arbitration – which had then to be paid by the claimants. The president of the tribunal commented that ‘since Moldova has not contributed to the costs, it is perhaps not unreasonable for the Claimant to have looked elsewhere to top up funds’.^[127]

In some cases, arbitral tribunals have requested the disclosure of the identity of the third-party funder to assess whether there may be a conflict of interest. For example, in the case of Muhammet Çap v. Turkmenistan, Turkmenistan submitted successive requests for disclosure of the identity of the funder and the terms of the funding agreement on the grounds that disclosure was necessary for various reasons; inter alia, to ensure that no conflicts of interests existed as per the 2014 IBA Rules on Conflicts of Interest in International Arbitration.^[128] The tribunal rejected the first request but granted the second regarding the identity of the funder and the nature of the funding arrangement agreed with it.^[129] The tribunal’s reasoning was based on the need to preserve the integrity of the proceedings and assess conflicts of interest.^[130]

However, arbitral tribunals are not usually persuaded by the argument that disclosure of the funding agreement is required to ascertain whether there are any conflicts of interest. For example, in Guaracachi America v. Bolivia, Bolivia requested the production of the funding agreement, inter alia, to assess potential conflicts of interest.^[131] The tribunal rejected the production of the agreement since Bolivia failed to specify what the conflict of interest created by the funding agreement would be. The tribunal noted how the UNCITRAL Rules only provide for disclosure of conflicts of interest of the arbitrators and declared that its members had no such conflict with the third-party funder.^[132]

Notably, in the case of Canepa v. Spain, two members of the tribunal rejected Spain’s bid to disqualify an arbitrator because he had previously sat on the investment committee of a funder, finding that neither non-disclosure, nor other considerations, were sufficient to disqualify the arbitrator from the tribunal.^[133]

TPF and security for costs

Many arbitral tribunals (most prominently investment arbitration tribunals) have rejected security for costs applications when they are primarily based on the existence of TPF.^[134] The predominant reasoning has been that ‘[t]he fact of having financing alone does not imply risk of non-payment’ and that ordering security every time that TPF is established would ‘increas[e] the risk of blocking potentially legitimate claims’.^[135]

For example, in the case of Libananco v. Turkey, Turkey based its security for costs request on an argument that, inter alia, Libananco’s claim was funded and that the funder was a fraudster who would not pay for a costs award.^[136] The tribunal considered that there was no established ICSID practice in awarding security for costs.^[137] It would therefore only be in an extreme case, where an essential interest of a party stood in danger of irreparable damage, that such could be ordered.^[138] The tribunal thus rejected the application.^[139] A similar approach was taken in the case of Hamester v. Ghana, where the tribunal found that ‘there was a serious risk that an order for security for costs would stifle the Claimant’s claims’ and that there was no evidence that the measures requested were necessary and urgent.^[140] Even in more recent cases, tribunals have confirmed that the existence of TPF per se is not determinative as to whether or not security for costs must be granted.^[141]

The high standard to grant security of costs – at least in the sphere of investment treaty arbitration – has only exceptionally been met. The first such case was RSM v. Saint Lucia, in which a combination of three factors led to the then unprecedented decision to order security for costs: (1) RSM’s history of non-compliance with costs orders; (2) RSM’s admission of having limited financial resources; and (3) the admission of funding by an unknown funder.^[142] The decision was not unanimous, however. Notably, assenting arbitrator Gavan Griffith KC went further and held that, once TPF is revealed, ‘the onus is cast on the claimant to disclose all relevant factors and to make a case why security for costs should not be made’.^[143]

In the case of García Armas v. Venezuela, the terms of the funding agreement were relevant to security for costs being directed. The claimants had disclosed the existence of TPF and the tribunal had (unusually) ordered the production of the funding agreement to protect the integrity of the proceedings.^[144] As per the terms of the agreement, the funder did not have an obligation to cover an award for costs, so the tribunal asked the claimants to prove that they could cover such an award.^[145] The claimants were unable to do so and the tribunal granted security for costs.^[146]

It should be noted that respondents (including states) in international arbitrations may also benefit from TPF, and this may have implications on any request for security of costs that they make. This is illustrated in the case of Interocean v. Nigeria, in which the tribunal ordered Nigeria to disclose how it was funding its defence of the arbitration, to determine whether it was incurring any costs that would support its application for security of costs. After it became clear that the government’s local legal counsel was paying for the costs of the defence, the tribunal held that there was no basis for granting Nigeria’s request for a security-for-costs order in the case.^[147]

The general reluctance of arbitral tribunals to award security for costs solely based on the existence of TPF is broadly aligned with the approach taken in the English courts. For example, in Progas Energy v. Pakistan, the Commercial Court, in the context of a challenge to an UNCITRAL award, rejected the argument that the existence of a commercial funder should make any difference when deciding whether to grant security for costs. The judge failed to see how it was relevant that third-party funders were involved: ‘the fact that the challenge has been made with funding . . . ought not to mean, without more, that security . . . should be ordered’.^[148]

TPF and costs

An important consideration regarding TPF is what constitutes a recoverable cost. In the case of Kardassopoulos v. Georgia, Georgia argued that since the claimants’ costs were borne by a funder, it was questionable whether they were recoverable.^[149] The tribunal disagreed and held that it knew of ‘no principle why any such third party financing arrangement should be taken into consideration in determining the amount of recovery by the Claimants of their costs’.^[150] This was particularly true considering the terms of the Georgia–Greece and Georgia–Israel BITs, which provide that the contracting parties shall not raise as an objection to the fact that the investor has received compensation or an indemnity under an insurance contract.^[151] Thus, the tribunal concluded that it would be ‘difficult to see why in this case a third party financing arrangement should be treated any differently than an insurance contract for the purpose of awarding the Claimants full recovery’.^[152] Similarly, in Khan Resources v. Mongolia, the tribunal concluded that the phrase ‘legal and other costs’ in Article 40(e) of the UNCITRAL Rules was broad enough to include the fees that the claimants had to pay to their lawyers, who had funded the case.^[153]

However, in Quasar de Valores v. Russia, the tribunal denied the claimants recovery of their costs because the funder had funded the entirety of the costs of the proceedings and had no contractual right regarding the claimants for reimbursement of these costs.^[154]

In the English court case of Essar Oilfields Services Ltd v. Norscot Rig Management PVT Ltd, the sole arbitrator adjudicating the dispute under the ICC Rules and the UK Arbitration Act 1996 made a costs award against Essar, which included funding costs as ‘other costs’. Essar brought proceedings in the High Court of England and Wales to challenge that award, arguing that ‘other costs’ should not include litigation funding costs. The Court decided that the real test is whether the costs relate to the arbitration and are for the purposes of the arbitration, and whether the costs are reasonable.^[155] In the court’s view, both conditions were met in Norscot’s case, thus concluding that arbitrators potentially have the power to award funding costs in appropriate circumstances,^[156] an advantage over English litigation where such a possibility does not exist.

In addition to whether the costs of TPF are recoverable (from the respondent) in the event that the claim holder wins the case, another question that may arise is whether the funder can be held liable to pay the respondent’s costs in the event that the claim holder loses the case (assuming the ‘loser pays’ principle applies). This is something that in the litigation context has been admitted by domestic courts, notably in England.^[157] However, the situation is different when it comes to arbitration. Arbitration is a creature of agreement. The arbitration agreement defines the limits of the arbitral tribunal’s jurisdiction. Normally, a funder funding an arbitration claim is not privy to the arbitration agreement in place between the claim holder and the respondent. It follows that, ordinarily, an arbitral tribunal will not have jurisdiction to issue a cost award against the funder.^[158]

Conclusions

Significant legal and regulatory developments liberalising TPF during the past decade or so have paved the way for its burgeoning development in the law and practice of international arbitration. However, a deepening and broadening of the funding pool and its greater visibility have also been accompanied by enhanced academic, institutional and jurisprudential scrutiny of particular features of TPF and arguments about whether it merits exceptional regulatory treatment. Irrespective of the evolution of this discourse, TPF seems destined in practice to remain a salient – and increasingly prominent and important – feature of the inter­national arbitration landscape (including M&A arbitration).

Notes