Author: Mohamed Sweify*
| Jurisdiction: International |
Topics: Third-Party Funding |
I. ABSTRACT
In response to the development of international markets, business transactions, in general, have become transnational,[1] and so have become the disputes arising therefrom.[2] Traditionally, any dispute involves two opposing parties with their respective representatives before an adjudicatory body. Each party is assumed to pursue the dispute from its own personal pocket. However, commencing a lawsuit is fraught with financial risks that make it a risky decision for any business activity. Various approaches to respond to these risks are now prevalent. Chief among these approaches is Third Party Funding (“TPF”). Through TPF, an irrelevant party with no prior connection to the case, agrees to invest in the legal claim by covering all the related costs of that claim in exchange of a percentage of the dispute outcome if successful or nothing if not.
The idea of TPF seems not so simple on its face. Despite being problematic in the context of international arbitration,[3] TPF has generated predictably high levels of interest among international arbitration practitioners.[4] In addition, international arbitration is an attractive area of investment for funders due to the high values of the claims at stake, the speedy proceedings, and the ability to globally enforce the arbitral awards.[5] These features increase the funders’ supply of their financial services in the arbitration field.[6] Evidently, observers of TPF in arbitration may predict that this market is growing in number and sophistication,[7] making changes in the character of this market to be among the more dramatic themes of the arbitration system.
Combined with the private parties’ adaptations, differing national legal structures may make generalization difficult to formulate. TPF in general may include consumer funding, which covers small personal claims, personal injury or family disputes, and commercial funding, which covers business disputes, including antitrust, business contracts, intellectual property, and other commercial and investment claims. This essay, however, deals exclusively with the negotiation parameters underlying the funding decision-making process in funding commercial claims pursued through arbitration. The Essay proceeds with Part II that provides the variables underlying the funding arrangement. Part III discusses the theories of valuing legal claims and their application to the funded claims. Part IV analyzes the negotiation parameters underlying the funding decision making process. Part V offers some tips for the funding parties to consider in negotiating the funding agreement. Part VI concludes.
II. FUNDING VARIABLES
TPF involves both risks and uncertainties that make its return highly variable.[8] Although the dispute outcome is a future uncertainty, funders tend to objectively evaluate the legal claim in a way that minimizes this uncertainty by involving a quantifiable probability of alternative risks.[9] Despite the funders’ sophisticated investment analyses and the risk assessment techniques, many variables may remain beyond their control.
A. Jurisdiction Variable
Although certain influences may tend to discipline the funding relationships, rights and duties arising out of these relationships may vary as the funding activities cross the national boundaries to transnational ones. The extraterritoriality of international arbitration is but one facet of a distinctive regulatory patchwork. Most notable are the jurisdictional barriers that are alleged to protect the private parties. Some jurisdictions may purport to give effect to some laws affecting the funding business.[10] To the disquiet of the funders’ investment strategies, the specter of jurisdictional approaches to the funding arrangements may form an ominous backdrop to the development of their marketing strategies.[11] They may transform the once-attractive market into a discouraging atmosphere for investment.
B. Evaluation Variable
From an accounting perspective, evaluating legal claims may be difficult to account on the funding corporation’s books.[12] Merit-based claims may affect the accounting treatment of the corporation. The claim is an immediate expenditure of money with a future expected return contingent on a successful outcome.[13] Moreover, the future expected return may not appear in the corporation’s accounts because the revenue has not yet been realized.[14]Otherwise, it may have misleading implications on the likelihood of realization.[15] Therefore, a legal claim may arguably not, from a corporation accounting perspective, be considered an asset of the corporation. In order to be considered an asset, the uncertainty of the successful claim outcome should exceed just a mere estimate.[16] This may be achieved by considering the experience of the enterprise in similar cases, the nature of the dispute, the legal counsel opinion, and the progress of the case.[17]
Further, the parties’ divergent evaluation of the likely outcome of the dispute is relevant to the funding decision. The assessment of the likely outcome is an accumulation of the costs, subjective psychological impacts, cognitive bias, potential devaluation and long proceedings; all of which may be subject to systemic errors of the parties at stake.[18]Accordingly, the funding decision is a result of considering a number of factors, including the speed of the trial, the amounts of documents involved, the client’s counsel who handles the case, the arbitrators involved, the seat of arbitration which should govern the procedural aspect of arbitration, and the potential enforcement jurisdiction of the arbitral award.
III. VALUING FUNDED CLAIMS
TPF should be understood as a tool to lessen the financial pressures on disputants, which may be achieved through valuing legal claims.[19] Valuing legal claims is subject to many variables including legal, factual, practical, and sometimes political variables.[20] On average, one out of ten cases is accepted by top funders to finance.[21] The assessed value of the legal claim may differ from the costs the funding parties may pay. From the funded party’s perspective, the cost of the arrangement is the amount of money that the funded party would pay the funder having won or settled the case. Unlike the funded party who intends to shift all the risks of uncertainties to the funder, the funder intends to mitigate those risks in order to maximize its profit. However, the inherent systemic risks may increase the cost.[22] These risks may include the expected recovery, time of recovery, success rate of the claim, counsel judgment, and enforcement of the award.[23] Among these challenges is the need to monetize legal receivables more quickly, the ongoing legal expenses that depress financial results, the pressure of shareholders or other investors to contain legal and other costs, the increased pressure on legal budgets, staffing and spending, managing legal risks and uncertainty and the difficulty in enforcing judgments.[24] These challenges represent the basic critical business challenges for the funding practitioners and may create difficulties to value the legal claim as an asset.
A. Claim Valuing Theories
Theoretically, valuing legal claims have been developed per the progress of the law and economics schools. The traditional or neoclassical law and economics school conceives the legal dispute as a monetizable asset, i.e., commodity as opposed to relationship.[25] One model predicted that “litigants will compare the financial value of a settlement offer to the expected financial value of trial and, of the two, select the course of action with the greater expected value.”[26] As long as the expected value of the lawsuit is readily calculable, settlement is a more favorable choice than trial in order for the parties to save the costs of litigation. The financial theory has recently been applied to claim value where litigation is considered an option, rather than an asset.[27] It assumes that filing a lawsuit is a “purchase of an option” because it entitles claimholders various options, in light of the new information that is revealed throughout the course of proceedings before the settlement decision, including filing certain motions, discovery, or any other strategic decision.[28] Legal probability, from a mathematician’s perspective, is not measurable and cannot be applied by statistical probability.[29]
Additionally, the behavioral theory looks into the actual human behavior and psychology to the law based on the assumption that rationality, willpower, and self-interest are bounded.[30] All parties involved in the litigation process, including litigants, lawyers, funders and judges or arbitrators, may make systemic errors due to the cognitive illusions that may lead to biased judgments.[31] Although the bounds of irrationality, self-interest and willpower arguably affect the parties’ ability to generate viable predictions of litigation outcomes, these results may have explanatory rather than necessarily predictive value.[32]
B. Valuing Theories & Funding
Valuing legal claims as potential investments is therefore significant for funders. First, the expected value of the claim is significant because similar to company shares, the claim is the asset in which a funder is purchasing “shares.” Second, the value of the option to settle may differ from the claim value itself. Third, the value of the transaction costs involved in effectuating the payment of a claim or an option may differ.[33] The funding practice may however involve an application of these theories for valuing legal claims. From a neoclassical law and economics perspective, funding parties consider their expected recovery after subtracting the anticipated costs of the dispute, the probability of success and the time between an immediate payment and a later monetary award. These variables are linked to the availability of asymmetric information as suggested by the financial theory. The financial theory may include the role of precedents as an additional component. However, this component may have less impact in arbitration than in litigation.[34] As new information is revealed, the parties’ assessments of the likely outcome may diverge rather than converge because they interpret the information egocentrically.[35] Therefore, accurate predictions of future values, as per the financial theory, may not be possible. From a behavioral theory perspective, the parties’ ultimate goal of litigation is not always money. They may be driven by non-monetary goals such as vindication, creating new precedents, or just exercising leverage over the opposing party.[36] These non-monetary goals may also impact the ongoing proceeding and the option to settle.
IV. FUNDING NEGOTIATIONS
Being a funder may mean having a price to pay. That price is sharing the arbitration costs of the funded claim. Once a party communicates with the funder to seek a financial backup, the funder begins to exert time, effort and capital to assess the potential value of the investment in the claim.[37] Accordingly, negotiating a funding agreement is not a dispute-avoidance mechanism. Making a funding decision requires a collaborative reassessment of a functioning relationship in relation to the claim seeking funding. Once underway, negotiations allow the parties to neutralize their potential differences by agreeing to funding terms that correspond to their ends. Practice is not, however, uniform. Funders’ expertise plays a crucial role in assessing the tribunals’ approaches in applying the law to the particular facts. The enforceability of the arbitral award is also a central criterion for funders, such as awards rendered by the International Centre for Settlement of Investment Disputes (“ICSID”) which minimizes risks of nonenforcement.[38]
Despite the possible differences between funders, certain elements may constitute common criteria in every funding decision, including (a) the value of the claims and potential defenses;[39] (b) the parties’ counsels and their fee arrangements; (c) the expected recovery compared to the requisite funds and costs; (d) the arbitrators’ backgrounds and appointments; (e) the jurisdictional hurdles during the proceedings and in enforcing the award;[40] and (f) the potential settlement options. The negotiation process could fill the knowledge gap between the parties and provide a baseline for concluding the funding agreement.
A. Negotiation Parameters
Normally, funders have their own team that will be assigned to evaluate the case seeking funding.[41] This team is expected to prepare an objective evaluation of the case. It would most likely include staff with expertise in the subject matter underlying the dispute and the skills needed to evaluate the claim. The negotiation process would involve exchange of the case documents between the party and the funder, which may require negotiations between the party’s and the funder’s legal teams. There is often a correlation between the quality of the assessment of the case and the detailed information shared by the client and considered by the funder’s team. The funder’s team should be able to track all relevant documents underlying the dispute in order to properly consider providing their financial services for that dispute. The volume of the documents underlying the dispute would also contribute to estimating the costs of the proceedings. At minimum, it should provide the funder with an objective estimate of how the discovery process may proceed in terms of costs and time.
Funders may grapple with the kind of case to fund. There are seemingly many options, but there are also limited opportunities. Some funders may prefer to fund specific types of litigation and end up specializing in these particular types.[42] The case may vary in scope and subject matter. The negotiation parameters may as well vary depending on the stage of the dispute. Evidently, the discovery process may unfold new information that may affect the value of the claim. Therefore, negotiating the funding agreement would depend primarily upon the stage at which the dispute stands whether before commencing the case, after commencing the case but before deciding the jurisdictional issues, after deciding the jurisdictional issues but before deciding the merits of the case, or after issuing an arbitral award for enforcement purposes. Every procedural posture may affect the funding decision. While the issue of control may be less relevant as the case proceeds, the settlement issue may be more relevant at later stages. Moreover, while the composition of the tribunal is crucial before commencing the proceedings, it loses importance after the commencement of proceedings and the appointment of an arbitrator.
The revealed information or documents may prompt reconsideration of the bargaining positions, dispelling the trust between the parties and exacerbating the costs of the proceedings. Funders may subject the funding arrangement to these potential unknowns which may be a source of disagreement between the funding parties at a later stage. The funder, on one hand, may try to withdraw or cut off the funding if it finds that the investment is no longer lucrative. The funded party, on the other hand, may refuse to perform the terms of the funding agreement. Therefore, the negotiation phase is of paramount importance because it defines the transactional script within which the parties may act as the dispute progresses.
B. Information Availability
The negotiation phase may be labelled as an informational stage. Funders often conduct due diligence to gather information about the case from the potential client and even the potential opposing party.[43] Funders may be able to make a better-informed funding decision if the funded party shares more information.[44] Funders do not normally require a written legal analysis from the client’s counsel to evaluate the claim’s chances of success.[45] They are more incentivized to gather as many factual elements as possible. That is justifiable. Uncertainty is mostly created by facts rather than laws. Legal analysis may be more predictable than the factual analysis which may differ from one mindset to another. Funders may have more concerns to the factual premise of the case compared to the legal premise with which they are more familiar. Given the non-binding nature of the negotiation stage and the possibility that the funding parties may reach a good-faith impasse, it may be advisable for the parties to anticipate the deadlock that may be created by the revealed information and readjust their situations upon the failure to agree on the funding terms.
C. Negotiation Balance
The calculus of negotiating a funding decision may certainly differ from the funder to the funded party. Each party comes to the negotiation stage with different expectations and different input. While the funder comes with primarily financial sources and expertise,[46] the funded party comes basically with strategic, factual and, supposedly, legal expertise. Despite the fact that each party has some input to offer during this negotiation phase, the funder is still more powerful. Practically, a balance is very hard to strike given the often-imbalanced positions of both funding parties during the negotiation stage.
The negotiation phase is designed to basically maintain a balance in the funding relationship. It tries to alleviate the problem of lopsided negotiations that may result from a risk-averse party who seeks funding compared to a financially capable funder who offers funding. It may increase the influence of the latter upon the first who becomes adapted to the financial capabilities of the funder and may submit to its terms. Similarly, the risk assessment may vary from one funder to another. While some funders require a 95% probability of success to take the funding decision, others may suffice with only a 50%.[47] These variables may create an unconscionability problem in disquieting the bargaining powers between the supposedly equal funding parties. The real challenge is weighing the balance between the freedom to contract and the justiciability of the funding terms in order to gain the public trust in the funding industry.
D. Evidence Matters
The nature of the facts underlying the dispute and the weight of evidence that may be introduced may contribute heavily to the funding decision. Funders may consider not just the type of claim but also the type of evidence that would be relied upon to support the claim. Some funders may be less enthusiastic to fund a legal claim that finds support only in oral testimony where the witness credibility may be likely questioned. Funders may be more inclined to fund a dispute that is less associated with human behaviors that rely basically upon documentary evidence.[48] Due to its human dimension, the credibility of the oral testimony may be more questionable than the credibility of the documentary evidence. While documentary evidence may be subject to objective assessment or measurement, oral evidence is not.
V. FUNDING NEGOTIATION: TRICK OR TREAT
A. Funders
In making the funding decision, funders often benefit from the assumption of their expertise. They are presumed to be familiar with the financial calculus of the dispute with the general practice of law in the areas underlying the dispute. Funders may target prospective clients who work in specific industries in order to maintain working relationships with them. In doing so, funders consider the general expected trajectory of these industries and their expected return of profit. Funders may also consider the legislative developments surrounding these industries in order to keep track of the dispute trajectory once the case is commenced.
Funders have an important role in evaluating the case referred to them by potential clients. However, that role is not supposed to transcend to micromanage the proceeding once it commences. The funded party has already its own lawyer who is familiar with the facts underlying the dispute. Substituting the funder’s decisions to manage the proceedings for the funded party’s lawyer would be counter-productive. Funders have, of course, the right to consult and offer input on the proceedings in order to verify that the positions taken in the proceedings are consistent with their earlier evaluation of the case. However, the funded party’s lawyer, compared to the funder, is better positioned to evaluate the strengths and weaknesses of the case, the proclivities of the decision makers, and the adversary procedural tactics.
B. Funded Parties
For the funded party, a funding decision may reflect an operation of different factors. A funded party may consider the funder’s history of funding particular cases. It may also compare the underlying dispute to other similar types of disputes funded by the same funder. It can as well review the published reports of the funders to determine whether this underlying dispute is often funded by that funder. Finally, it may consult the funder’s selective professionals who may offer helpful comments on objectively discussing the probability of the dispute outcome. Personal contacts or interviews would certainly help clear these issues for both funding parties. It is not easy to provide a list of the operational methods that the funding parties may consider in making the funding decision which may increase the chances of making a correct choice. However, the funding parties may take into account some core elements to rely upon in managing their funding negotiation once they begin to evaluate the potentially funded dispute.
VI. CONCLUSION
Making a funding decision is central to the vitality of the funding industry. It is the pillar for creating a funding arrangement. This essay presented the common parameters that may be considered by the funding parties in assessing their funding choice during the negotiation process. Nevertheless, it is also important to acknowledge that the calculus may differ from one funder to another in a particular given dispute. As a consequence, this essay offers common cautionary variables for the funding parties to consider in making the funding decision.
[1] J. Kirk Standly, Department: Trends in the Profession, 63 Tex. Bar J. 846 (2000) (“Standly estimates that 90 percent of large business transactions now have an international component such as a foreign subsidiary, sales, or distribution. A decade ago, only 10 percent of all deals were international in scope.”). Although there might be a distinction between the words “transnational,” “international,” and “global” from an economic perspective, those terms will be used interchangeably in this paper unless otherwise indicated.
[2] Even domestic business transactions consider the transnational dimensions of these transactions, especially with the computerization and advancement of telecommunications. See William S. Fiske, Should Small and Medium-Size American Businesses ‘Going Global’ Use International Commercial Arbitration?, 18 Transnat’l L. 455, 465, 470 (2005).
[3] William Park & Catherine A. Rogers, Third-Party Funding in International Arbitration: The ICCA Queen-Mary Task Force 1 (Penn State Law, Legal Studies Research Paper No. 42-2014, 2014), https://scholarship.law.bu.edu/faculty_scholarship/16.
[4] Zachary D Krug et al., Third-party funding in international arbitration, Litigation Funding 2020 at 4 (2019), https://woodsfordlitigationfunding.com/wp-content/uploads/2020/01/GTDT2020.pdf (“Third-party funding is an increasingly routine part of the landscape of international arbitration. Anecdotally, our experience speaking with claimants, practitioners and others who are frequently involved in international arbitration suggests that most claimants involved in larger international arbitrations are either being funded or have, at some stage of the process, considered using funding.”)
[5] More than 150 countries are parties to the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”) which is the primary vehicle for recognizing and enforcing foreign arbitral awards in the field of international arbitration. A list of the Contracting States can be found at http://www.newyorkconvention.org/countries.
[6] The ability to universally enforce the arbitral award has opened the door for monetizing the arbitral award itself and fund the enforcement efforts. See Jeffery Commission & Michael Redman, Navigating judgment enforcement in multi-jurisdictional arbitrations, Burford (Oct. 17, 2019), https://www.burfordcapital.com/insights/insights-container/navigating-judgment-enforcement-in-multi-jurisdictional-arbitrations/.
[7] The awareness of the legal finance industry has become very high and its use is expected to rise. According to the Burford Capital survey, 75% of the organizations have used legal finance, up from 37% in 2007 – a 105% increase in three years. See Burford Capital, 2020 Legal Finance Report: A Survey of In-house and Law Firm Lawyers 38 (2020), https://issuu.com/burfordcapital/docs/burford_2020_legal_finance_report/2?ff.
[8] The assumption in this essay is that these variables are considered for funding a single dispute. The funding parties may have different rationale for funding portfolio of disputes.
[9] George L. Head, An Alternative to Defining Risk as Uncertainty, 34 J. Risk & Ins. 205, 208 (1967), (identifying the challenges of defining the risk as uncertainty because it “makes measurement and quantification of risk most difficult.”).
[10] “For example, the US has a long tradition of not regulating nonbank finance providers who deal with corporate clients, as Burford does. Most states have quite a clear ceiling above which sophisticated parties like Burford and its corporate clients are free to contract without regulatory oversight.” Burford Capital, Leading the Way, Today and for the Long Term: Burford Capital Annual Report 2019, at 73 (2020), https://www.burfordcapital.com/media/1734/fy-2019-report.pdf.
[11] Burford Capital has noted that “[s]ince the Singapore Parliament passed a similar Bill on third-party funding in early 2017, we have had a slew of funding enquiries from the region and we expect a similar response from Hong Kong. There is a growing demand for arbitration funding due to escalating costs associated with arbitrations which would erode the value of corporate balance sheets by using capital that could otherwise be deployed to grow the business.” Quentin Pak, Hong Kong Allows Third Party Funding of Arbitration, Burford Capital (Dec. 12, 2018), https://www.burfordcapital.com/insights/insights-container/hong-kong-allows-third-party-funding-of-arbitration/.
[12] The average claim value varied from $33,500,000 and $28,000,000. See Burford Capital, 2017 Litigation Finance Survey 24 (2017) (hereinafter Burford 2017 Survey).
[13] According to the Financial Accounting Standards Board (“FASB”), a contingency is “an existing condition, situation, or set of circumstances involving uncertainty as to possible gain [referred to as a ‘gain contingency’] or loss [referred to as a ‘loss contingency’] to an enterprise that will ultimately be resolved when one or more future events occur or fail to occur.” Statement of Fin. Acct. Standards No. 5: Acct. For Contingencies¶ 1 (Fin. Acct. Standards Bd. 1975) [hereinafter SFAS].
[14] Id. at FAS5-6 (“Contingencies that might result in gains usually are not reflected in the accounts since to do so might be to recognize revenue prior to its realization.”)
[15] Id. (“Adequate disclosure shall be made of contingencies that might result in gains, but care shall be exercised to avoid misleading implications as to the likelihood of realization.”).
[16] Id. at FAS5-10.
[17] “If the underlying cause of the litigation, claim, or assessment is an event occurring before the date of an enterprise’s financial statements, the probability of an outcome unfavorable to the enterprise must be assessed to determine whether the condition in paragraph 8(a) is met. Among the factors that should be considered are the nature of the litigation, claim, or assessment, the progress of the case (including progress after the date of the financial statements but before those statements are issued or are available to be issued, with the appropriate date determined in accordance with Statement 165), the opinions or views of legal counsel and other advisers, the experience of the enterprise in similar cases, the experience of other enterprises, and any decision of the enterprise’s management as to how the enterprise intends to respond to the lawsuit, claim, or assessment (for example, a decision to contest the case vigorously or a decision to seek an out-of-court settlement).” Id. ¶ 36.
[18] See infra Part III.
[19] See Burford 2017 Survey, supra note 12, at 14 (evidently, the economic pressures have been one of the strong business challenges and litigation finance has been considered a relevant tool to address these challenges which in turn would clearly be a key to its ongoing growth).
[20] Catherine A. Rogers, Ethics in International Arbitration 186 (2014). The type of the funded party may be considered. Sovereign states may attract more funders due to their willingness to comply with the awards than private parties. However, enforcement of these awards may raise many challenges. See Phoebe Waters, How an Asset Recovery Team Helps with Sovereign State Enforcements, Burford Blog (Oct. 08, 2020), https://www.burfordcapital.com/insights/insights-container/how-an-asset-recovery-team-helps-with-sovereign-state-enforcements/.
[21] Rogers, supra note 20, at 186.
[22] Some funders try to mitigate these risks by investing in multiple disputes at once to create a diversified portfolio of cases. This portfolio of cases considers the aggregate winning rate even with some losing cases. See 5 Minutes on… Portfolio Finance, Burford Blog (Apr. 17, 2019), https://www.burfordcapital.com/insights/insights-container/5-minutes-on-portfolio-finance/.
[23] See Burford 2017 Survey, supra note 12, at 15.
[24] Id.
[25] Maya Steinitz, How Much Is That Lawsuit in the Window? Pricing Legal Claims, 66 Vand. L. Rev. 1889, 1904 (2013); see George L. Priest & Benjamin Klein, The Selection of Disputes for Litigation, 13 J. Legal Stud. 1, 4 (1984).
[26] Steinitz, supra note 25, at 1904.
[27] Id. at 1907.
[28] Id. at 1907–08.
[29] Id. at 1910.
[30] Id.
[31] Id. at 1911.
[32] Id.
[33] Id. at 1903–04.
[34] See generally Gabrielle Kaufmann-Kohler, Arbitral Precedent: Dream, Necessity or Excuse?, 23 Arb. Int’l 357, 361–78 (2007) (tracing the development of the doctrine of precedent in the field of arbitration).
[35] Steinitz, supra note 25, at 1914–15.
[36] See id. at 1914–15, explaining other factors that may distort the litigants’ rational assessment of the likelihood of success and hence reduce the possibility of settlement, such as subjective psychological costs and litigation fatigue; reactive devaluation (the desire not to appear capitulated to the opposing party); and status quo bias.
[37] See, e.g., Emily Slater, Getting to “yes”: What lawyers need to know about Burford’s litigation finance diligence process, Burford Capital(Dec. 6, 2016), https://www.burfordcapital.com/insights/insights-container/getting-to-yes-what-lawyers-need-to-know-about-burford-s-litigation-finance-diligence-process/.
[38] See Recognition and Enforcement – ICSID Convention, International Centre for Settlement of Investment Disputes,https://icsid.worldbank.org/services/arbitration/convention/process/recognition-enforcement (last visited Nov. 16, 2020) (“ICSID itself has no formal role in the recognition and enforcement of an award under the ICSID Convention. However, if a party informs ICSID of the other party’s non-compliance with an award, it is ICSID’s practice to contact the non-complying party to request information on the steps that party has taken, or will take, to comply with the award.”). See also Maxi Scherer et al., Third Party Funding in International Arbitration in Europe: Part 1—Funders’ Perspectives, Int’l Bus. L.J. 207, 211–213 (2012) (finding that some funders may avoid certain defendants, including Argentina and Russia).
[39] See, e.g., Carol Necole Brown & Dwight H. Merriam, On the Twenty-Fifth Anniversary of Lucas: Making or Breaking the Takings Claim, 102 Iowa L. Rev. 1847 (2017) (finding a rate of success of 1.6% of “Lucas-type” takings claims, in which the government is alleged to have wiped out all economically beneficial or productive use of land).
[40] Adam R. Pomeroy, Penn Central After 35 Years: A Three Part Balancing Test or a One Strike Rule?, 22 Fed. Cir. B.J. 677, 698 (2013) (finding 11.7% success rate for cases decided on the merits while only 4% when considering cases that were dismissed on jurisdictional grounds).
[41] See, e.g., Artem Fokin, Burford Capital: Leader in Nascent Litigation Financing Asset Class, MOI Global (Jan. 16, 2019), https://moiglobal.com/artem-fokin-201901/.
[42] “Burford has invested more than $50 million in at least four other categories of related litigation, its annual report shows. They include a utilities industry arbitration in Europe; a food, beverage, and tobacco industry antitrust case in North America; a North American contract dispute in the energy industry; and an antitrust case in the North American software and services industry.” Roy Strom, Burford’s Payday Shows Litigation Finance Not Just About Lawyers, Bloomberg Law (Oct. 02, 2020, 6:35 AM), https://news.bloomberglaw.com/business-and-practice/burfords-payday-shows-litigation-finance-not-just-about-lawyers.
[43] For more details, see Victoria A. Shannon, Harmonizing Third-Party Litigation Funding Regulation, 36 Cardozo L. Rev. 861, 899 (2015).
[44] The availability of information should enable the funder to make a better funding decision. One court has noted that funders use the information provided by the funded party to advise the funded party on the costs of pursuing the litigation, risks involved, and the best strategy to pursue litigation. In re Int’l Oil Trading Co., LLC, 548 B.R. 825, 835 (Bankr. S.D. Fla. 2016).
[45] For one funder, counsels’ legal opinions are welcomed only where protected against disclosure. Scherer et al., supra note 38, at 216.
[46] However, some scholars find that funders may provide legal advice to the funded party. Rogers, supra note 20, at 187.
[47] David S. Abrams & Daniel L. Chen, A Market for Justice: A First Empirical Look at Third Party Litigation Funding, 15 U. PA. J. Bus. L. 1075, 1088 (2013).
[48] Id. at 1088.
* Mohamed Sweify, Esq. is a bilingual dual qualified trained attorney in civil and common law jurisdictions. The author is a New York based attorney and is also a Doctor of Juridical Sciences Candidate (S.J.D) at Fordham University School of Law, a Teaching Fellow of U.S. Legal System and ADR Practices and a Lecturer of Islamic Law at Fordham Law School. The author welcomes comments on this essay at msweify@fordham.edu.