Author: Abayomi Okubote*
| Jurisdiction: International |
Topics: Third-Party Funding |
ABSTRACT
The economic shockwaves of the Covid-19 pandemic is profound, and its impact is being felt from Toronto to Lagos as large swaths of the economy grind to a halt. There is and likely will continue to be a shortage in cash liquidity and an increase in precautionary savings. To save money, solvent companies have begun seeking external financing for claims—even companies that, historically, paid their own legal expenses. There is a menu of funding options available to claimholders who are interested in seeking external financing for their cases: legal expense insurance, assignment of claims, equity financing, legal aid, loans, attorney financing, and third-party funding. This article assesses the different funding types and concludes that third-party funding, because of its non-recourse nature and funders’ role in filtering out unmeritorious cases, is the magic bullet for financing legal disputes during and after the pandemic.
I. INTRODUCTION: PANDEMICS AND ITS ECONOMIC AFTERSHOCKS
The covid-19 pandemic is having far-reaching consequences on global economy. The International Monetary Fund (IMF) World Economic Outlook (published in October 2020) projected global growth to fall by 4.4% in 2020 and a rebound of 5.2% in 2021. After the rebound in 2021, global growth is expected to gradually slow to about 3.5% in the medium term.[1]However, the risk of worse growth outcomes than projected remains sizable. Virus resurgence, slower progress on treatments and vaccines, or countries’ unequal access to them could be impact the projection. The negative signals on the economy are worrying and fear of the unknown can only exacerbate these economic impacts.
Small businesses’ legal budgets have likely been shrinking, and large corporations (even those weathering the economic storm fairly well) may lose the gusto to spend in the face of economic uncertainty. There is no one correct approach to fashioning a corporation’s litigation strategy during a pandemic, but one obvious and sensible option is hedging litigation risks and taking on dispute financing. One senior officer at a third-party funder pointed out “the trend in corporations that historically paid for the legal expenses beginning [exploring] litigation financing instead. … That is now becoming a more urgent trend.”[2]
Legal dispute budgets may be shrinking, but the pandemic is also generating a surge of contract disputes. One funder has pointed out that the pandemic “has disrupted a vast number of contractual and other arrangements and there will inevitably be significant litigation over the allocation of responsibility, including questions such as the scope of business interruption, insurance and the limits of the force majeure doctrine.”[3] Further litigation will be generated by the economic downturn we expect to occur. Put simply, companies have less money to handle more legal disputes.
II. POST-PANDEMIC ARBITRATION FUNDING TYPOLOGIES
There is a menu of funding arrangements available to a claimholder who seeks external financing of a claim. The claimholder may approach a specialized funder or financial institution for a loan, either of the traditional sort or non-recourse financing, where repayment is contingent upon the success of the case. In addition, a legal claim can be transformed into a financial asset, which can potentially be monetized or used as collateral in order to secure finance.
Conceptually, these different approaches can be broken down into six financing options:
- legal expense insurance;
- assignment;
- equity financing;
- loan;
- attorney financing; and
- third-party funding.
What is common to all alternative financing models is the provision of external capital to cover arbitration costs, in exchange for a share in the proceeds of the claim.[4] Each funding type has its own the distinct characteristics, and by analyzing them, a corporation can identify which model is best suited for post-pandemic claim funding shortfall. Corporations will likely identify third-party funding (TPF) as best suited make up a pandemic-induced funding shortfall.
A. Legal Expense Insurance (LEI)
Legal expense insurance (LEI) is an insurance policy that protects a company from potential litigation or arbitration costs. It is often available for pursuing or defending claims. Covered costs may include lawyers’ fees, witness expenses, and other arbitration costs. Large corporations often carry LEI, but it could be an important tool for a business of any size that could face a legal dispute (again, either pursuing a claim or defending against it).
There are two primary LEI structures: (a) before the event (BTE) and (b) after the event (ATE). BTE is taken out to cover the expenses related to adjudicating a claim and is typically an add-on to another insurance policy or service. (Businesses may also purchase a standalone policy.) By contrast, ATE is triggered when the insured loses the case. It covers expenses associated with the outcome of an adjudication: adverse damages awards, costs orders, the insured’s own expenses relating to the proceedings, and outside counsel fees.
Insurance companies have been tightening the terms of their contracts to exclude pandemics,[5] but LEI remains a funding product that is available to cover the potential arbitration costs that cash-poor claimholders or large corporations may face. This pandemic-specific uncertainty in the insurance sector makes LEI a relatively unattractive option to companies facing mounting legal disputes related to the pandemic.
B. Assignment
A corporation may assign claims in three different ways: an outright transfer of the right to pursue a claim; a transfer that comes as part of a merger, acquisition, or asset purchase; or a transfer related to bankruptcy or insolvency proceedings.[6] As a tool for claim funding, assignment will typically involve an outright transfer of a claim.
A claimholder may assign a claim to a funder in order to avoid potentially lengthy arbitration proceedings. This may be especially important when a corporation’s balance sheet is already under pressure. By assigning the claim, the corporation can get immediate payment from a funder. For its part, the funder may prefer to acquire the claim outright in order to exert unfettered control over prosecution of the claim and may find control over settlement decisions particularly valuable. The key feature of assignment is that the claimholder completely alienates the claim, transferring it to the assignee.[7]
Assignment may fail in jurisdictions that continue to prohibit champerty, where funders may be prevented from taking control of another person’s litigation. England, for instance, has recently upheld its prohibition of champerty as it relates to assignment of claims. In Simpson v Norfolk & Norwich University Hospital NHS Trust,[8] the English Court of Appeal voided the assignment of a personal injury claim against a hospital trust. Mrs. Simpson was a widow whose husband had contracted a MRSA infection because of a hospital’s poor sanitation standards. Another man, Mr. Catchpole, had also contracted MRSA at the hospital, and he assigned his claim to Mrs. Simpson so that she could highlight the hospital’s failings. While the assignee had “honourable motives” in pursuing the claim, the court held that it was not in the public interest to encourage litigation whose principal object was to pursue some object other than obtaining a remedy for a legal wrong. While the courts have generally taken an increasingly liberal approach to the principles of maintenance and champerty in the context of TPF, the principles have been applied more strictly where claims are assigned to, rather than merely funded by, a third-party funder.[9]Given the application of champerty and maintenance in many common law jurisdictions, assignment of a claim may be an unattractive option for dealing with post-pandemic claim funding shortfall.
C. Equity Financing
This funding model involves the funder acquiring a stake in the claimholder company, usually when the claimholder company is a holding corporation. The difference between equity financing and TPF is that the funder’s return on investment in an equity financing takes the form of dividends rather than payments pursuant to a funding contract.
Funders may find this attractive if they can wield control over the arbitration as a shareholder (especially as a part of the board of directors), and it can do this without violating any champerty restrictions.[10] This practice is common in Ireland and has been approved by the Supreme Court of Ireland. In Persona Digital Telephony Ltd & Ors v The Minister of Public Enterprises & Ors, the Supreme Court of Ireland held, inter alia, that while TPF constitutes champerty, a financing structure whereby the funder takes equity in the claimholder is not champertous.
The drawback of this financing model is the potential conflict of interest that may arise from the equity interest of the funder in the claimholder and the control it may exercise over proceedings as a shareholder. The concern is that the funder acting as a shareholder may make decisions or influence the conduct of proceedings, in the sole interest of its investments in the company rather than in the company’s overall beneficial interest. The pandemic has forced firms into many unforeseen predicaments and taking on a new shareholder whose only interest is in a particular dispute may complicate pandemic-related restructuring efforts. From the funder’s perspective, equity financing may be unattractive during or after a pandemic given the equity risk implicated.
D. Loan
Lending could come from a variety of sources. Parties may be funded by traditional loans, obtained from a bank. A parent company can advance a loan to its subsidiary to fund a dispute. Shareholders, creditors or beneficial owners of an entity might also provide funds directly for the pursuit of a claim, which will in turn provide a financial benefit for them.[11]
Loans are not contingent, so they must be repaid irrespective of the outcome of the case. Thus, seeking a simple loan does not permit the claimholder to mitigate the risk of losing the case.[12] Though the claimholder retains all of the risk, it also retains complete control over management of the dispute. Thus, the tradeoff is between risk mitigation and control of the case.
The possibility of securing a loan in the aftermath of pandemic is slim because of the shrinking budgets of most finance institutions. Meanwhile, hedge funds or pensions administrators—who may have cash at hand—may request overpriced interest rates or returns.[13]
E. Attorney Financing
Attorney financing is another mode by which claims may be funded. It can take the form of conditional fee arrangements and contingency fee arrangements.[14]
A contingency fee arrangement is any structure whereby a lawyer represents a claimholder, and the attorney’s fees are paid based on a negotiated percentage of any damages recovered. However, where there is no recovery, the attorney receives no payment for his/her services. Contingency fee arrangements are permitted in Canada and the United Kingdom and are particularly common in the United States. It is sometimes called a “no-win-no-fee” arrangement.
A conditional fee arrangement is similar to contingency fee. The main difference is that a lawyer working under a conditional fee arrangement charges a discounted fee, instead of charging no fee up front. If the claim is successful, the lawyer gets his/her full fee out of the damages recovered, sometimes along with a success bonus. The key difference between conditional fee and contingency fee arrangements is that while an attorney solely shoulders the risk of loss in a contingency fee arrangement, such risk is shared with the claimholder in a conditional fee arrangement.[15] Conditional fee arrangements are commonly used in the United Kingdom.[16]
Notably, major law firms around the world are employing several drastic measures to shore up their finances and mitigate the economic impact of the pandemic,[17] thus the appetite of law firms to take up cases based on contingency or conditional fee arrangements may not be too strong.
F. Third-party Funding
Third-party funding (TPF) is an arrangement between a party and a funder wherein it is agreed that the funder will cover the party’s legal costs and expenses in exchange for allocating to the funder a percentage of any proceeds derived from the arbitral proceedings.[18] Typically, TPF is offered on a ‘non-recourse’ basis, which means the funder may seek repayment only from the proceeds of the arbitration.
The TPF market is increasingly diverse, with more and more sophisticated options becoming available. Nevertheless, the big funders follow a similar overall strategy. They primarily seek to invest in a small volume of very large commercial or investment treaty disputes and portfolios, where they expect to make a return in successful cases on the order of multiples of the capital invested. As the TPF industry is evolving and growing in popularity, there is a shift from single-case financing towards a portfolio-based approach.[19]
Portfolio financing, which has become particularly prominent in recent years, involves the financing of multiple claims through a single investment fund, often incorporated specifically for the purpose. It is typically structured using one of two models: (a) finance structured around a law firm, or practice group within a law firm, where the claim holders may be various clients of the firm; or (b) finance structured around a corporate claim holder that is likely to be involved in multiple legal disputes over a relatively short period of time.[20] Based on the financing arrangement under the two models, the funder’s return is dependent upon the overall net financial performance of the portfolio as opposed to the outcome of each particular claim.
This structure has economic benefits for the funded parties: the funder hedges the risks of non-recourse dispute funding by spreading the risk across multiple claims. Funded parties benefit from lower funding costs because the funder’s risk is diversified. The funded party can seek funding for a series of claims (and not just a single claim) in order to reach a minimum funding threshold, meaning it can spread its litigation budget across a range of cases and apply it to where it is needed the most. Law firms also benefit, as they may draw capital more flexibly than in a single-dispute funding scenario. For example, a firm may be willing to accept fee overruns (i.e., exceeding a fee budget) in one case when it knows another case is operating below budget.
The primary downside of this business model is the conflict of interest that may arise when funders seek to exercise control over dispute resolution. Conflicts of interest implicated by TPF arrangements are addressed in more detail below.
III. TPF AS THE SOLUTION TO PANDEMIC-INDUCED CLAIM FINANCING SHORTFALL
A. The costs and benefits of TPF
Many businesses are struggling with cash liquidity and shrinking capital outlay given the pandemic. This makes TPF an attractive claim funding option because it is non-recourse, so the funded party has no repayment liability to the funder. TPF may be particularly valuable in investor-state dispute settlement when the same state actions that are the subject of a claim (e.g., expropriation of profitable investments) may have deprived the investor of the financial means to launch an arbitration. Given the nature of this financing model, funders heavily scrutinize the merits of a case before granting any funds, thus, reducing the number of frivolous cases.
Apart from cash-poor claimholders, solvent companies may be hesitant to commence arbitration proceedings due to significant costs. Self-funding claims will be particularly unattractive during and after a pandemic because it is risky, and companies are already facing considerable uncertainty. A third-party funder may help in balancing out this risk by providing capital for the arbitration proceedings while the company maintains a constant cash flow. This may have a significant impact on accounting since the arbitration costs paid by the funder will not be recorded in the balance sheet of the funded company.
As noted by Christopher Bogart, the CEO of Burford Capital, a leading funder, “arbitration finance has developed quickly because it allows corporations to unlock the often substantial value they have tied up in unresolved claims, and it allows them to proceed with arbitrations while retaining control of their exposure to loss.”[21]
In the empirical study done by David Abrams and Daniel on TPF in Australia, they found that (a) TPF led to the filing of more novel cases, and (b) decisions in TPF funded cases were particularly influential in developing the law, being more often cited and rarely overturned. Because third-party funders are less risk averse than claimants, funded cases could shape the ongoing development of the law to a greater extent than non-funded cases.[22]
B. Managing potential conflicts of interest with disclosure
Despite the systemic benefits of TPF, there are ethical and policy issues implicated by the funding arrangement. One obvious conflict could arise from a relationship between an arbitrator and a funder. One might also arise with double-hatting, i.e., if the same funder funds one case in which an attorney is counsel, and another in which that attorney is arbitrator. Especially where an arbitrator is regularly appointed or seeks appointments from claimants in different arbitrations who are funded by the same funder, serious questions arise as to the impartiality and independence of the arbitrator. Such risks are far more acute in arbitration than in litigation, since arbitrators are appointed ad hoc for each arbitration, often by the parties, and the same individuals may act alternately as arbitrator or counsel.
Moreover, the confidentiality of arbitral processes gives rise to further concerns. The belated revelation of a relationship between the claimant’s funder and an arbitrator could affect the enforceability of an award. This risk has, of course, triggered agonizing debates over disclosure requirements. Arbitrators, arbitral institutions, and parties may also have to consider whether to require disclosure of funding relationships, and also how to disclose information about the claim to potential funders. Disclosure is necessary to avoid possible conflicts of interest. If done properly, TPF disclosure requirements can ensure the tribunal’s impartiality and independence. Doing so is essential for the integrity and legitimacy of the arbitral system. Up-front disclosure also reduces the number of frivolous annulment proceedings and challenges to enforcement.
C. Other questions
Since international arbitrators have significant (some say total) discretion to apportion the costs of the arbitration and to order parties to post security for costs, the question arises as to whether TPF arrangements may or should be taken into account by arbitral tribunals when they make orders pertaining to costs. This question continues to be fiercely debated within the international arbitration community and remains unresolved.[23]
There are also concerns that claimholders may violate confidentiality or privilege duties to respondents as they court third-party funders. There is a debate on the need to balance the claimholder’s right to disclose information to funders (for the purpose of securing funding) and the respondent’s right to protect privileged and other confidential information.[24]
D. Calls for Regulation
The ethical and policy issues implicated by TPF have triggered debates on the need for some form of regulation.[25] The paucity of empirical data on the use of TPF in international arbitration,[26] and the varying approaches to regulation by key stakeholders, multiply the complexity of designing appropriate regulations. At the heart of these debates is the consensus that whilst TPF poses serious risks to arbitrator independence and the integrity of arbitral proceedings in general, these are outweighed by the systemic benefits TPF can bring, not least, improving access to justice.
In response to the call for regularization and regulation of TPF in international arbitration, some countries have already amended their arbitration laws, and some arbitration institutions have also amended their rules. These include:
(a) National laws on TPF: the Hong Kong Arbitration and Mediation Legislation (Third Party Funding) (Amendment) Ordinance 2017[27] and the Singapore’s Civil Law (Amendment) Act 2017;[28]
(b) Investment agreements and rules on investment arbitration: Singapore International Arbitration Centre Investment Rules 2017, China International Economic and Trade Arbitration Commission (Hong Kong Arbitration Centre) Investment Arbitration Rules, and the Comprehensive Economic and Trade Agreement (CETA) ratified by Canada and the European Union (Article 8.26);
(c) Institutional and professional rules: 2018 HKIAC Administered Arbitration Rules, Singapore International Arbitration Centre Practice Note 2017, and Singapore’s Legal Profession (Professional Conduct) Rules 2015.
(d) Self-regulation: Association of Litigation Funders of England & Wales (Voluntary Code of Conduct for Litigation Funders).
IV. ANALYSIS OF THE TPF PROVISIONS IN THE NIGERIA ARBITRATION AND MEDIATION BILL 2019
A. Costs
The Bill introduced new provisions relating to costs of the arbitration, which is not in the current Arbitration and Conciliation Act. The proposed Section 50(1)(g) of the Bill[29] grants the arbitral tribunal the power to consider “the costs of obtaining TPF in granting costs of the arbitration.” A TPF agreement is defined under Section 91 as “a contract between the Third-Party Funder and a disputing party, an affiliate of that party, or a law firm representing that party, in order to finance part or all of the cost of the proceedings, either individually or as part of a selected range of cases, and such financing is provided either through a donation or grant or in return for reimbursement dependent on the outcome of the dispute or in return for a premium payment.”[30] Put simply, the arbitral tribunal has broad discretion to award costs unless the arbitration rules or the parties’ agreement state otherwise.[31]
B. Disclosure
Section 62 of the Arbitration Bill deals with disclosure of third-party funding.[32] It provides that “if a Third-Party Funding agreement is made, the party benefitting from it shall give written notice to the other party or parties, the arbitral tribunal and, where applicable, the arbitral institution, of the name and address of the Third-Party Funder.” If a funding agreement is finalized before the arbitration is commenced, the agreement must be disclosed when the arbitration is in fact commenced. [add citation] When an agreement is concluded after the arbitration has already started, it must be disclosed without delay.
Where a respondent has brought an application for security for cost based on the disclosure of Third-Party Funding, the Bill imbues the Tribunal with the power to allow the funded party or its counsel to provide the Tribunal with an affidavit stating whether under the funding arrangement, the Funder has agreed to cover adverse costs order. The affidavit shall be a relevant consideration to the tribunal’s decision on whether to grant security for costs.[33]
Another jurisdiction that has dealt with this concern in a way similar to Nigeria is Hong Kong – one of the two countries that have amended their arbitration laws to introduce a permissive statutory framework for TPF. The Hong Kong’s Arbitration and Mediation Legislation (Third Party Funding) Amendment Ordinance 2017 (the Amendment Ordinance) obligates a funded party to disclose to the arbitration body and to each of the other parties to the arbitration the existence of the funding agreement, the date of commencement and the name of the third-party funder.[34]
The required disclosure is crucial and will enable the arbitral body to conduct a conflicts of interest check in respect of any relationship between the third-party funder and any of the arbitrators. The need for mandatory disclosure was confirmed by the 2015 Queen Mary School of International Arbitration Survey, in which 76% of survey respondents agreed that disclosure of the existence of TPF should be mandatory and 63% believed that disclosure of the identity of the funder should be mandatory.[35]
In interpreting the TPF provisions in the Bill, it is also suggested that the existence of a funding relationship should not in itself constitute a ground for challenging an arbitrator. This will obviate the risk of unnecessary delay that may arise from frivolous applications following disclosure of TPF and will incentivize claim holders to disclose funding arrangements.
C. Champerty Prohibitions
Section 61 of the Bill abolishes the torts of Maintenance and Champerty (including being a common barrator) in relation to TPF in arbitration.[36] This Section applies to arbitrations seated in Nigeria and to arbitration related proceedings in any court within Nigeria.
Prior to inclusion of the TPF provisions in the Bill, courts in Nigeria have on several occasions deprecated the financing of a lawsuit for a share in the proceeds of the suit. The Rules of Professional Conduct in the Legal Profession (made pursuant to the Legal Practitioners Act) also prevents lawyers in Nigeria from acquiring interest in the cases they are handling except a reasonable contingent fee arrangement.[37]
In Kessington Egbor & Anor v. Peter Ogbebor, the Court of Appeal (per Ogakwu JCA) held that “[i]t is no doubt settled law that a situation where a person elects to maintain and bear the costs of an action for another in order to share the proceeds of the action or the suit is champertous.”[38]
The implication is that a recalcitrant respondent may challenge a costs award on the basis of champerty and maintenance, which may set a costs award granted by an arbitral tribunal on a collision course with the courts. The Bill has now dealt with this concern, in a similar manner to Singapore’s Civil Law (Amendment) Act 2017 (CLA),[39] by expressly abolishing the torts of champerty and maintenance in Nigeria. This will help to sidestep unnecessary delay that may arise from challenge of a funded award on the basis of champerty prohibitions.
V. CONCLUSION
The COVID-19 pandemic has had far-reaching economic consequences beyond the spread of the disease itself and efforts to quarantine it. It is time for companies to assess the claim funding models to mitigate the impacts of the pandemic. TPF offers a variety of benefits to both impecunious and solvent companies.
To maximize the benefits of TPF, regulations should offer both “carrots and sticks” to the parties that rely on them. The carrots will incentivize parties to perform their obligations under TPF and more general ethical regulation, whilst the sticks will help to provide control over funded proceedings. This commendably is the approach taken in the Nigeria Arbitration and Mediation Bill 2019.
Despite the ethical and policy concerns thrown up by TPF, it has become an unavoidable commercial reality and the magic bullet to the liquidity issues implicated by financing a claim in the aftermath of a pandemic.
[1] Int’l Monetary Fund, World Economic Outlook: A Long and Difficult Ascent, October 2020 (2020) (ebook).
[2] Allison Chock, U.S. chief investment officer of Omni Bridgeway, quoted in Caroline Simson, Third-Party Funders’ Business Is Booming During Pandemic, Law360 (April 8, 2020), https://www.law360.com/articles/1261213/third-party-funders-business-is-booming-during-pandemic.
[3] See Joanna Bourke, Market report: Burford Capital could benefit if Covid-19 legal disputes stack up, Evening Standard (April 28, 2020), https://www.standard.co.uk/business/market-report-burford-capital-could-benefit-if-covid19-legal-disputes-stack-up-a4426076.html.
[4] Except in the case of “not-for-profit funding”, which does not include expectation of financial returns. An example of this is Philip Morris v. Uruguay, ICSID Case No. ARB/10/7 (July 8, 2016), where “Campaign for Tobacco-Free Kids” supported the Uruguayan Government financially out of pure altruistic motivation, and not in return for proceeds of the claim. Victoria Shannon Sahani, Revealing Not-for-Profit Third-Party Funders in International Arbitration, Inv. Claims (Mar. 1, 2017), https://oxia.ouplaw.com/page/565.
[5] Oliver Ralph, UK insurers tighten terms to explicitly exclude coronavirus, Fin. Times (Mar. 31, 2020), https://www.ft.com/content/92518d19-ce35-4af3-90f4-64cb00f8e2f5.
[6] Lisa Bench Nieuwveld & Victoria Sahani, Third Party Funding in International Arbitration 1 (2d ed. 2017).
[7] By contrast, third-party funders only acquire an interest in the “fruits” of the proceedings. See subsection G, infra. See also Bernardo Cremades, Third party litigation funding: investing in arbitration, 8 Transnat’l Disp. Mgmt 11 (2011).
[8] Simpson v. Norfolk & Norwich University Hospital NHS Trust, 2011 EWCA (Civ) 1149 (Eng.).
[9] Consumer claims to recover allegedly unlawful charges were validly assigned to claimant company, Herbert Smith Freehills (Sep. 25, 2017), https://hsfnotes.com/litigation/2017/09/25/consumer-claims-to-recover-allegedly-unlawful-charges-were-validly-assigned-to-claimant-company/#more-11477.
[10] Persona Digit. Telephony Ltd & Ors v. Minister of Pub. Enters. & Ors, [2017] IESC 27 (Ir.).
[11] See Report of the ICCA-Queen Mary Task Force on Third-Party Funding in International Arbitration, 4 ICCA Reports 36 (April 2018) [hereinafter Task Force Report].
[12] Another difference is that loans, unlike other forms of funding, typically accrue interest. See Bernardo Cremades, Concluding remarks, inThird-party Funding in International Arbitration 154 (Bernardo Cremades & Antonias Dimolista eds., 2013).
[13] ValueWalk, How COVID-19 has impacted the hedge fund industry, Yahoo Fin. (July 2, 2020), https://finance.yahoo.com/news/covid-19-impacted-hedge-fund-152336042.html?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAAHBA9fhoTGwIlZ_AL7VBpw95KX35mGSnekUDoKFDFBO_VydY00F7ALnwB3LQXIThuu021rzmUT2_gsTjj6c546TZmZUABjtg5pRlyv49syH3n3k_LnQ8MWSaWzKJpeckrvcplOAj_kmh8Jid5MKbFvy9158NOeNDKUrEaXgr16BP .
[14] Pro bono representation—in which the attorney represents a client without requiring payment for her services—is another form of attorney financing, but will not be available to any corporate parties seeking representation in international commercial arbitration. For a discussion of conditional and contingency fee arrangements generally, see Task Force Report, supra note 11.
[15] Nieuweld & Sahani, Third Party Funding, supra note 6, at 6.
[16] Id. at 98.
[17] See Pay Cuts, Layoffs, and More: How Law Firms Are Managing the Pandemic, Law.com (July 31, 2020), https://www.law.com/americanlawyer/2020/05/04/pay-cuts-layoffs-and-more-how-law-firms-are-managing-the-pandemic/?slreturn=20200408073415#.
[18] It is difficult to define TPF due to the different and rapidly evolving funding models, therefore this Overview does not address the debates on the definition of TPF, but rather defines TPF in its simplest form..
[19] In 2016, Burford Capital announced that it was putting $45 million behind the litigation efforts of British Telecommunications (BT), which was to finance an entire portfolio of BT’s pending actions. Kali Hays, BT Signs $45million litigation deal with Burford Capital, ZSA (Feb. 8, 2016), https://www.zsa.ca/bt-signs-45million-litigation-deal-with-burford-capital/. Burford also announced that its new litigation finance investments in portfolio-based and complex arrangements grew from 63 percent in 2014, to 88 percent in 2016, with only 12 percent invested in single-case financing. Burford clinches portfolio funding deal with UK firm, Burford (Aug. 2, 2017), https://www.burfordcapital.com/media-room/media-room-container/burford-clinches-portfolio-funding-deal-with-uk-firm/.
[20] Task Force Report, supra note 11, at 38.
[21] Christopher P Bogart, Third-Party Financing of International Arbitration, 2 Belgian Rev. Arb. 315 (2017). According to Burford Capital’s 2019 Litigation Finance Survey, 80.0% of lawyers agree that legal finance is an essential law firm new business tool; 73.9% of lawyers see legal finance as a growing and increasingly important tool, while 72.0% of in-house lawyers say their companies have failed to pursue meritorious legal claims for fear of adversely impacting the bottom line. https://www.burfordcapital.com/media/1662/2019-legal-finance-report.pdf.
[22] Brooke Guven & Lise Johnson, The Policy Implications of Third-Party Funding in Investor-State Dispute Settlement 24 (Colum. Ctr. on Sustainable Inv., Working Paper No. 5-2019), https://scholarship.law.columbia.edu/cgi/viewcontent.cgi?article=1007&context=sustainable_investment_staffpubs.
[23] See generally Task Force Report, supra note 11, at 80-83.
[24] See generally Task Force Report, supra note 11, at 139-41.
[25] A 2015 survey reported that a significant majority of respondents (71%) thought that third-party funding required regulation. White & Case and Queen Mary University of London, 2015 International Arbitration Survey: Improvements and Innovations in International Arbitration 3 (2015).
[26] There is little or no case law from national courts or arbitrations is available relating to TPF in international arbitration, and where precedents do exist “they are themselves currently locked away behind bars of confidentiality.” See M. Kantor, Risk management tools for respondents – here be dragons in Third-party Funding in International Arbitration, supra note 14, 68.
[27] The Arbitration and Mediation Legislation (Third-Party Funding) (Amendment) Ordinance 2017, (2019) Cap. 609, § 98.
[28] Civil Law (Amendment) Act 2017, (2017) 8 Government Gazette Acts Supplement, § 5B.
[29] A Bill for an Act to Repeal the Arbitration and Conciliation Act 1988 (Cap. 18 LFN, 2004) and Re-Enact as the Arbitration and Mediation Act, 2019, § 50(1)(g) (Nigeria) [hereinafter Arbitration and Mediation Bill].
[30] Id., § 91.
[31] See generally David R. Haigh & Paul A. Beke, Canada – Law & Practice in International Arbitration, in Chambers Country Practice Guide, International Arbitration, 2016, 115, 122 (2016), https://www.bdplaw.com/content/uploads/2015/10/Arbitration-Chapter-for-Chambers-2015.pdf.
[32] Arbitration and Mediation Bill, supra note 36, § 62.
[33] Id., § 62(3).
[34] The Arbitration and Mediation Legislation (Third-Party Funding) (Amendment) Ordinance 2017, (2019) Cap. 609, § 98.
[35] 2015 International Arbitration Survey: Improvements and Innovations in International Arbitration, Queen Mary 48 (2015), http://www.arbitration.qmul.ac.uk/media/arbitration/docs/2015_International_Arbitration_Survey.pdf.
[36] Arbitration and Mediation Bill, § 61.
[37] Rules of Professional Conduct for Legal Practitioners § 17.3 (2007).
[38] Kessington Egbor & Anor v. Peter O. Ogbebor (2015) LPELR-24902(CA).
[39] Civil Law (Amendment) Act 2017, (2017) 8 Government Gazette Acts Supplement, § 5A.
*Abayomi Okubote is a Doctoral Candidate at Queens University, Ontario, Canada; He is the Executive Director, Africa Arbitration Academy; and Team Lead, International Arbitration Practice, Olaniwun Ajayi LP, Lagos, Nigeria. He can be reached at abayomi.okubote@queensu.ca, aokubote@olaniwunajayi.net.