Funding International Arbitration
Sherina Petit, Nosherwan Vakil
Published: 2024
Pages: 130
eBook: 9781837230235
This new Special Report provides a practical and accessible guide to funding international arbitration and is geared towards both individuals who wish to further their understanding of the area and those approaching funding issues for the first time.
• how to demystify each stage of the process from initial assessment to final resolution;
• the steps involved in considering, advising on and structuring funding;
• the proven strategies on approaching funders and maximising your chances of success;
• how to manage the ongoing relationships with the third parties involved in the funding lifetime, including around settlement; and
• understanding the critical importance of accuracy and careful planning throughout the process.
Key topics covered include:
• funding options;
• market regulation;
• legal barriers to funding;
• disclosure of information;
• costs management;
• the role of funders;
• enforcement mechanisms; and
• dispute avoidance strategies.
Featuring expert insights and written in a practical and accessible style, Funding International Arbitration is geared towards individuals who wish to further their understanding of the area as well as those approaching funding issues for the first time.
Table of Contents
Cover | Cover | |
---|---|---|
Title Page | 1 | |
Copyright | 2 | |
Table of contents | 3 | |
Introduction | 7 | |
I. The growth of the funding market in the UK and beyond | 9 | |
1. History and development of third-party funding | 9 | |
2. What is ‘third-party funding’? | 14 | |
3. The growth of the third-party funding market | 18 | |
4. Moral and ethical considerations | 23 | |
5. Conclusion | 27 | |
II. Types of litigation funding options available | 33 | |
1. Introduction | 33 | |
2. Insurance | 34 | |
3. Monetisation | 38 | |
4. Broker role | 39 | |
III. Pre-funding considerations | 43 | |
1. Analysis of risk | 43 | |
2. The funding agreement | 48 | |
3. Conclusion | 50 | |
IV. Regulation of the funding market | 51 | |
1. Introduction | 51 | |
2. Background | 53 | |
3. Self-regulation | 53 | |
4. Judicial oversight | 54 | |
5. Arbitration | 55 | |
6. Solicitors’ professional and ethical obligations | 56 | |
7. Contingency fee arrangements | 56 | |
8. PACCAR: LFAs as DBAs | 57 | |
9. Litigation risk insurance | 58 | |
V. Legal barriers to funding | 61 | |
1. Introduction | 61 | |
2. Historic background: maintenance and champerty | 61 | |
3. The current position | 63 | |
4. The international perspective | 70 | |
VI. Disclosure of information | 73 | |
1. Confidentiality and privilege | 73 | |
2. Conflicts of interest | 76 | |
3. Disclosure of funding arrangements to other parties | 78 | |
VII. Costs and security for costs | 83 | |
1. Introduction | 83 | |
2. Adverse costs in arbitration: institutional rules | 85 | |
3. Funder’s liability for costs | 86 | |
4. Security for costs in litigation that follows on from arbitration | 88 | |
5. Security for costs in investor-state arbitration | 88 | |
6. One party’s liability for another party’s funding costs | 92 | |
VIII. The role of funders during arbitration proceedings | 95 | |
1. Introduction | 95 | |
2. Legal services providers versus financial services providers | 96 | |
3. Contemplating funding prior to or at the start of the proceedings | 97 | |
4. During the course of the proceedings | 98 | |
5. Conclusion of the proceedings | 100 | |
IX. Funding and enforcement | 103 | |
1. Introduction | 103 | |
2. Issues for award enforcement in commercial arbitration | 105 | |
3. Issues for award enforcement in investor-state arbitration | 106 | |
4. Asset recovery and funded award enforcement | 109 | |
5. Assignment of arbitral awards | 110 | |
6. Conclusion | 113 | |
X. Avoiding and managing disputes with funders | 115 | |
1. Introduction | 115 | |
2. Identifying and selecting a suitable funder | 115 | |
3. Negotiating heads of terms and the funding agreement | 119 | |
4. Managing the relationship between claimant and funder | 121 | |
5. Managing the budget and dealing with budget variations/overage | 123 | |
6. Settlement dynamics in funded cases | 124 | |
7. Disputes relating to funded cases | 125 | |
About the authors | 129 | |
About Globe Law and Business | 139 |
Matthew Amey
Director, TheJudge
[email protected]
https://www.linkedin.com/in/matthew-amey/
Matthew Amey has been a director of TheJudge since 2005, having previously worked as an underwriter for a market-leading litigation insurer. Since then, TheJudge has expanded in the United States, Canada and continental Europe; and Matthew’s role in the market has been recognised by industry peers after he was included in the Chambers & Partners Litigation Funding Brokers rankings for four years in a row.
Matthew has been at the cutting edge of developments in litigationrelated insurance and finance for over two decades and has placed some of the largest, most complex one-off litigation insurance policies in existence. They include judgment preservation insurance, damagesbased agreement (DBA)/contingency fee insurance and arbitration award default cover.
In January 2021, Matthew, along with his co-founders, launched a new litigation funder called Erso Capital to complement TheJudge’s insurance broker services.
Craig Arnott
Deputy chief investment officer, Burford Capital
[email protected]
https://www.linkedin.com/in/craig-arnott-0a35a533/
Craig Arnott is deputy chief investment officer with specific responsibility for Burford’s investment portfolio in the United Kingdom, the European Union, the Middle East and Australasia. Craig is a member of Burford’s management and investment committees. Prior to joining Burford, Craig advised the company while serving as barrister at Sixth Floor Selborne and Wentworth Chambers in Sydney. Before being called to the Bar, he was a partner and head of competition law in London at international firm Fried Frank. He commenced his career at Cravath, Swaine & Moore in New York.
Stavros Brekoulakis
Michael and Laura Hwang Chair of International Arbitration, National University of Singapore; Arbitrator, 3 Verulam Buildings
[email protected]
https://www.linkedin.com/in/stavros-brekoulakis-54387a16/
Stavros Brekoulakis is the Michael and Laura Hwang Chair of International Arbitration at the National University of Singapore. Stavros also practises as an arbitrator at 3 Verulam Buildings (Gray’s Inn). He is the author of eight monographs, books and edited volumes and more than 30 articles in leading peer-reviewed law journals. Stavros has led important policy projects and advised governmental, intergovernmental and non-governmental organisations, including as the co-chair of the International Council for Commercial Arbitration (ICCA)-Queen Mary University London (QMUL) Task Force on Third Party Funding and a member of the London Bar Reform Committee. He is currently a member of the governing body of ICCA; the Governing Court of the London Court of International Arbitration (LCIA); and the International Chamber of Commerce (ICC) Commission on Arbitration.
He is the editor-in-chief of the International Journal of Arbitration, Mediation and Dispute Management; the general editor of the Journal of International Dispute Settlement; the co-editor of Kluwer’s International Arbitration Law Library Series; and a member of the editorial board of Arbitration International.
Julian Chamberlayne
Risk and funding partner, Stewarts
[email protected]
https://www.linkedin.com/in/julian-chamberlayne-08a39150/
Julian Chamberlayne is the risk and funding partner at Stewarts. His role involves developing and implementing improvements to the legal services that Stewarts provides to all of its clients, including innovative cost and funding options such as the Stewarts Litigate insurance facility. He chairs the firm’s risk and funding committee, which proactively reviews issues relating to clients, cases and/or applications that involve financial, reputational or regulatory risks, including approving and monitoring alternative funding arrangements for major commercial dispute cases. He also leads Stewarts’ cost and funding disputes team.
For over two decades, Julian has been instrumental in making Stewarts a leader in the field of costs and funding in the United Kingdom. Stewarts was an early adopter of conditional fee agreements, damages-based agreements, after-the-event insurance and third-party litigation funding. Julian has also played a prominent role in campaigning for law reform in relation to cost and funding issues to enhance options for Stewarts’ clients.
Moeiz Farhan
Barrister, 36 Stone
[email protected]
https://www.linkedin.com/in/moeiz-farhan-3b7995106/
Moeiz Farhan has a broad commercial practice and has extensive experience of international commercial litigation and arbitration. Before joining 36 Stone, he worked for several years as an employed barrister in the world-leading disputes practices of Gibson Dunn and King & Spalding. His work at those firms included advising and acting on behalf of some of the world’s largest and most well-known companies, often on high-value and high-profile matters. His experience working at large international law firms means that he is equally comfortable working independently or as part of a team. Before coming to the Bar, Moeiz was a research assistant at the Law Commission of England and Wales, where he worked on the Law Commission’s review of the law of fiduciary duties and its application to investment intermediaries. The Law Commission’s report, which he was heavily involved in drafting, has been cited by the courts at all levels, including by the Supreme Court in R (on the application of Palestine Solidarity Campaign Ltd and another) v Secretary of State for Housing, Communities and Local Government [2020] 1 WLR 1774. He was also a visiting tutor at King’s College London.
Steven Friel
Chief executive officer, Woodsford
[email protected]
https://www.linkedin.com/in/steven-friel-9a83441a/
Steven Friel is CEO at Woodsford, a leading collective redress business. An English solicitor, Steven is an alumnus of Cambridge University and the Inns of Court School of Law, and graduated top of his class with a master of laws in international dispute resolution from the University of London. He has been listed as a leader in litigation finance in every annual ranking by Chambers & Partners, The Legal 500, Lawdragon Global and Who’s Who Legal. He was named as one of the PwC Top 10 Inspirational Leaders 2020 in the British LGBT Awards; and one of the Top 100 Gamechangers 2022, in partnership with Citi, as a leader in diversity, equity and inclusion across the global financial services industry. He is the managing editor of leading treatise The Law and Business of Litigation Finance (Bloomsbury Professional); a member of the advisory board at the Centre for Sustainable Governance and Law in the Built Environment at University College London; and a member of the Global Stewardship Committee of the International Corporate Governance Network.
Ewelina Kajkowska
Senior associate, Hogan Lovells International LLP
[email protected]
https://www.linkedin.com/in/ewelinakajkowska/
Ewelina Kajkowska is a dispute resolution lawyer based in London. She focuses on international arbitration and has experience dealing with disputes under the LCIA, ICC, International Centre for Settlement of Investment Disputes (ICSID) and United Nations Commission on International Trade Law (UNCITRAL) rules. Ewelina also advises on alternative dispute resolution (ADR) methods and issues of jurisdiction and conflicts of law in international disputes.
Ewelina has practised across multiple jurisdictions. Prior to joining Hogan Lovells, she was an adviser to the Polish government in arbitration cases. She has also worked for a global law firm in the Middle East, advising clients on a range of matters before the Dubai International Financial Centre courts and arbitral tribunals. Ewelina has extensive academic experience, having completed her PhD and post-doctoral research in international arbitration and ADR, and is a published author and speaker in the field.
David J Kerstein
Founder and managing director, Arcadia Finance LLC
[email protected]
https://www.linkedin.com/in/david-kerstein-0b58513/
David J Kerstein is the founder and managing director of Arcadia Finance, a commercial litigation finance company based in New York. Prior to founding Arcadia, Dave was one of the co-founders and managing directors of Validity Finance, where he co-led origination, underwriting, structuring and monitoring of investment opportunities. An early adopter of litigation finance with 10 years in the industry, Dave serves as a trusted and strategic partner and adviser to lawyers and clients seeking to manage litigation risk and spend. Dave began his career in litigation finance at Bentham IMF, now Omni Bridgeway, where he spent four years as an investment manager. Before that, he spent 15 years as a trial lawyer handling complex commercial disputes at a leading international law firm, Gibson Dunn. Dave is a sought-after speaker and recognised leader in litigation finance. He has been named among Lawdragon’s “Global 100 Leaders in Legal Finance” and selected by Who’s Who Legal as a “Thought Leader in Third Party Funding”.
Julian DM Lew KC
Arbitrator, Twenty Essex; Head of the School of International Arbitration, Queen Mary University of London
[email protected]
https://www.twentyessex.com/people/julian-lew/
Julian DM Lew KC is a full-time arbitrator in international commercial and investment disputes at Twenty Essex. He has been involved in international arbitration for more than 40 years as an academic, counsel and arbitrator. He has been appointed and has conducted arbitrations under the rules of all the major arbitral institutions and under the UNCITRAL Arbitration Rules. Julian has been professor and head of the School of International Arbitration, QMUL since its creation in 1985. He has published extensively on international arbitration and has sat on the board of directors, management and advisory boards and research committees of several major international arbitration institutions. Julian established and is the co-editor of Kluwer’s International Arbitration Law Library Series.
Matthew Lo
Director, Exton Advisors
[email protected]
https://www.linkedin.com/in/matthew-lo-6a77b77b/
Matthew Lo is an English law-qualified, former private practice disputes lawyer with a wealth of experience in litigation funding. Having trained and practised at global business law firm DLA Piper since 2015, he has a strong background in international dispute resolution, with a particular focus on complex and cross-border commercial, corporate, energy and natural resources and fraud disputes. Since switching to a career in litigation funding with Aldersgate Funding in 2020 and subsequently with Exton Advisors from 2023, Matt has covered every aspect of the funding process, from origination to execution. Matt’s skill set includes legal and financial due diligence, bespoke advisory work, price modelling and structuring of litigation funding and legal risk insurance arrangements.
Sherina Petit
Partner and head of international arbitration and India practice, Stewarts
[email protected]
https://www.linkedin.com/in/sherinapetit/
Sherina Petit is the head of the international arbitration department at Stewarts and head of the India practice. She also sits on the executive board of the firm. Sherina specialises in international commercial arbitration, investor-state arbitration, litigation and ADR.
In addition to acting as counsel in arbitration, she sits as an arbitrator. Sherina is ranked in all the major directories, including the Legal Business Arbitration Power List, and as a Global Leader in Who’s Who Legal. Sherina has achieved a number of successes for her clients in both commercial and investment arbitration proceedings in terms of settlement and arbitration awards. She has a wide range of experience in all key aspects of international arbitration, including under all the major arbitral institution rules, with a focus on India-related disputes. Her global client base spans a broad range of industries, including energy, construction, oil and gas, trade, transport, pharmaceuticals, commodities, finance and technology.
Michael Redman
Co-head of Europe, Middle East and Africa, Burford Capital
[email protected]
https://www.linkedin.com/in/mredmanburford/
Michael Redman is a co-head of Europe, Middle East and Africa and head of the London office, with responsibility for the business generated and managed out of the United Kingdom and Europe. Michael continues to be deeply involved in asset recovery and contentious insolvency matters in particular, while also overseeing origination and underwriting across the region. Michael is a leading authority on enforcement finance and complex asset recovery, with almost two decades of experience in the field.
A trained barrister, Michael began his career in the Lloyd’s of London political and credit risk insurance market and also spent time in the West African diamond industry. He has worked in complex asset recovery and enforcement for close to two decades, holding senior private sector positions in both Moscow and London before cofounding a leading asset recovery advisory boutique.
Vasanti Selvaratnam KC
Senior silk and joint head of chambers (2018–2023), 36 Stone
[email protected]; [email protected]
https://www.linkedin.com/in/vasanti/
Vasanti Selvaratnam KC is a senior silk and former joint head of chambers at 36 Stone. She divides her time between sitting as an international independent commercial arbitrator in disputes covering a wide range of industries under all the major institutional rules and appearing as an advocate in high-profile commercial cases. She has been recognised in All About Shipping as one of the top 24 remarkable women who have substantially contributed to the international maritime industry; and was shortlisted for Chambers UK Bar Awards Shipping Silk of the Year 2022.
Vasanti appeared in the leading funding case Arkin v Borchard Lines, which capped the funder’s liability to the level of the investment. She has also written on the topic of good faith under English law and recently contributed to the work of the Financial Markets Law Committee on duties of good faith in wholesale financial contracts.
Nicole Silver
Lead underwriter and head of US operations, Ignite Specialty Risk
[email protected]
https://www.linkedin.com/in/silvernicole/
Nicole Silver is the lead underwriter and head of US operations at Ignite Specialty Risk, a managing general agent specialising in capital protection insurance. Prior to getting into the insurance space, Nicole served as an investment manager at Validity Finance, one of the premier litigation funders operating in the United States. In addition, Nicole has a 20-year track record of success litigating complex disputes. She has worked at Winston & Strawn and was a partner at Greenberg Traurig. She has appeared before numerous courts and tribunals, including the US Supreme Court, various appellate and district courts, the ICDR, ICC, ICSID, UNCITRAL and the USTR. Nicole has been named one of Latin America’s Top 100 Female Lawyers by Latinvex, 2016–2021; and was recognised in Latin Lawyer’s Latin Lawyer 250 – Practice Recognition: Arbitration in 2020. She was also recognised in Global Arbitration Review’s Who’s Who Future Leaders in 2022 and the GAR 100 Survey in 2018; and earned inclusion in The Legal 500 US in 2018. Nicole is a graduate of Vanderbilt Law School and received her BA from Princeton University.
Nishant Nath Singh
Senior associate, Stewarts
[email protected]
https://www.linkedin.com/in/nishant-nath-singh-3049b03a/
Nishant Nath Singh is a disputes lawyer at Stewarts. He specialises in international arbitration and commercial litigation. Nishant’s experience covers arbitration proceedings under the major institutional rules, and he regularly advises clients on large and complex litigation matters before the English courts (some of which have involved third-party funding). Nishant also works within Stewarts’ India practice and has a wide-ranging and varied experience in advising clients on India-focused matters.
Before joining Stewarts, Nishant worked at Slaughter and May on commercial litigation, international arbitration and investigation matters. He trained at Norton Rose Fulbright. Nishant is originally from New Delhi, India and moved to the United Kingdom to study law and business at the University of Warwick.
Mick Smith
Principal, Burford Capital
[email protected]
https://www.linkedin.com/in/mick-smith-45095718/
Mick Smith is a principal with responsibility for leading Burford’s investment activity and operations in Europe, focusing on companies, funds, investors and law firms engaged in commercial litigation and arbitration. Mick co-founded Calunius Capital. He previously practised law at Freshfields in both London and Madrid, and then worked as an investment banker at JPMorgan Chase, Credit Agricole Lazard and Dresdner Kleinwort.
Tom Steindler
Managing director, Exton Advisors
[email protected]
https://www.linkedin.com/in/thomas-steindler/
Tom Steindler has nearly a decade of experience in the financing of disputes and other legal assets, as well as corporate finance and litigation risk insurance. He is a recognised thought leader in litigation funding and has led a wide range of transactions, from the financing of single claims, portfolios and law firms to the monetisation of awards. Tom holds a master’s in finance from King’s Business School.
Hasan Tahsin Azizagaoglu
Associate, Bench Walk Advisors
[email protected]
https://www.linkedin.com/in/hasantahsinazizagaoglu/
Hasan Tahsin Azizagaoglu works at Bench Walk Advisors, where he oversees the due diligence process for proposed cases for funding, the negotiation of funding arrangements and the subsequent management of cases. He has been recognised by several directories, including Lawdragon, and named among the 2023 and 2024 Lawdragon 100 Global Leaders in Litigation Finance. Additionally, he serves as the co-chair of the third-party funding group at the Chartered Institute of Arbitrators and is a member of the organising committee for Istanbul Arbitration Days. He holds a PhD in private international law.
Harshiv Thakerar
Chief investment officer, Asertis
[email protected]
https://www.linkedin.com/in/harshiv-thakerar-b2438938/
Harshiv Thakerar has more than six years’ experience in litigation funding and has been responsible for successful investments and resolutions across a breadth of claims in the industry. Prior to joining Asertis, Harshiv headed the litigation funding division at Global Growth Cap and, prior to that, was head of commercial litigation at Augusta Ventures. He qualified as a litigation solicitor at Mishcon de Reya and has founded and invested in business in the real estate and tech sectors. Praised for his “pragmatism and hands-on approach”, Harshiv is ranked in Chambers for Litigation Funding. Chambers also notes that Harshiv “acts on solid mandates including enforcement actions, competition claims and group action cases”.
Harshiv holds an LLB (Hons) and is a practising solicitor in England.
Nosherwan Vakil
The 36 Group
[email protected]
https://www.linkedin.com/in/nosherwan-vakil-7b24042b6/
Nosherwan Vakil has been practising as a lawyer for over 15 years in India. He is also a barrister of England and Wales. He acts as counsel before various courts in India, including the Supreme Court of India, High Courts and Tribunals. Nosherwan’s practice focuses on commercial disputes in international arbitrations and in Indian courts. Nosherwan is a door tenant with a leading English chamber, The 36 Group, in London, consisting of international barristers, mediators and arbitrators.
Simona Valkova
Independent tribunal secretary
[email protected]
https://www.linkedin.com/in/simona-valkova-9756925a/
Simona Valkova is an independent tribunal secretary specialising in international commercial and investment arbitration. She has been working in the international arbitration field for over five years and has experience with arbitrations under a variety of institutional and ad hoc rules (eg, ICC, Hong Kong International Arbitration Centre, LCIA, Singapore International Arbitration Centre, Stockholm Chamber of Commerce, ICSID and UNCITRAL Rules). She is qualified to practise law as a solicitor in England and Wales. Simona is also a teaching fellow in international commercial and investment arbitration law at the School of International Arbitration, QMUL.
Ayse Yazir
Global head of origination, Bench Walk Advisors
[email protected]
https://www.linkedin.com/in/ayse-yazir-acii-04a86315/
Ayse Yazir is the global head of origination and has an outstanding reputation in the litigation funding industry, where she originates, underwrites and monitors funding in various litigation sectors, including international and commercial arbitration, insolvency, class actions and global litigation matters. Prior to joining Bench Walk Advisors, Ayse worked at Gallagher’s and she has seven years’ senior technical underwriting experience with a global funder. Ayse has been instrumental in drafting rules on third-party funding for both UNCITRAL and ICSID and is currently working at the Chartered Institute of Arbitrators’ Third-Party Funding drafting committee. She has been recognised as a “Thought Leader: Third-Party Funding” by Who’s Who Legal for four consecutive years; ranked in Chambers & Partners in both the United Kingdom and Europe; named in The Legal 500 as an industry leader; named as one of the top 10 most influential litigation funders by Business Today; and ranked by Lawdragon as a leading funder. Ayse won “Leading Dispute Resolution Expert” at the Lawyer Monthly Awards 2020, 2021, 2022 and 2023; and won the “Litigation Funder of the Year” award at the Finance Monthly Awards 2021 and 2023.