INSIGHTS INTO LITIGATION FINANCE

International Arbitration and Third Party Funding in Hong Kong: Q&A with the Secretary-General of the Hong Kong International Arbitration Centre

Marla Decker

As jurisdictions compete for status as premier international arbitration hubs, a differentiating factor (or, increasingly, a must-have factor) is whether the jurisdiction’s legal framework allows for third party funding in arbitrations seated there. We have followed the development towards a more permissive environment for third party funding in Asia closely, recently asking members of Freshfields’ international arbitration group to provide an update on developments in Asia with Singapore and Hong Kong leading the charge. Today, we focus in on Hong Kong, which on February 1, 2019, put into effect previously enacted legislative changes to permit third party funding in international arbitration. In connection with this development, the Ministry of Justice has released the Code of Practice for Third Party Funding of Arbitration, which sets out practices and standards with which third party funders are expected to comply in connection with funding of arbitrations in Hong Kong, and the Hong Kong International Arbitration Centre (“HKIAC”) amended its rules to harmonize with the legislative changes and to address disclosure requirements, confidentiality, and costs in third party funded matters. We asked Sarah Grimmer, Secretary-General of HKIAC to discuss the changing landscape.

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How to Choose A Litigation Funder

Marla Decker

It’s 2019, and litigation finance is going to play prominently in the legal industry this year. Lawyers and claimholders increasingly desire the utility and flexibility of what litigation finance can offer. As demand for litigation funding has increased, so too has the number of litigation funders in the market. Some funders (like Lake Whillans) focus exclusively on litigation financing, while others have added litigation finance investments as part of a larger investment portfolio. The field has matured to the point that Chambers & Partners ranked litigation funders in the U.S. and U.K. last year. (Lake Whillans as a firm, and Lake Whillans co-founder Boaz Weinstein individually, each were ranked among the top bands in the 2018 Chambers rankings).

So if you are a claimholder, a lawyer seeking funding for your client or firm, or law firm management trying to differentiate between funders, how should you be analyzing the options? We suggest there are key differences among funders that you can use to compare:

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Third-party funding in Asia: Arrived, and Set to Thrive

Marla Decker

Over the last few years, third‑party funding has become a hot topic in Asia. As we previously reported, in 2017, the two leading arbitral seats in Asia, Singapore and Hong Kong, enacted legislation that opened the door to third‑party funding of arbitration proceedings. As well as fundamentally changing the legal framework in those jurisdictions, these developments made third‑party funding a major talking point across Asia. In this article, we reflect on the current landscape for third‑party funding in the region.

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Using Litigation Finance to Close the Gender Gap in Law

Marla Decker

The advancement of women lawyers has been a discussion in the legal profession for decades, and one that I’ve followed closely. As a young associate, I was encouraged by the efforts underway at various firms to attract and promote women into senior positions. While women were admittedly underrepresented in leadership roles at law firms, the tide seemed about to shift.

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Turning the Law Department Into a Profit Center

Lee Drucker

Perhaps the biggest trend in corporate law departments over the past few years has been the rise of the legal ops function. Ten years ago there were only a handful of law department operations professionals (LDOs), typically only in large sophisticated organizations. Today, about a third of the Fortune 500 law departments have at least one professional in such a role. All these professionals have one thing in common: their job is to bring business discipline to the legal function.

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Acceleration Bay Work Product Decision

Garrett Ordower

The latest work product decision in the litigation finance sphere — Acceleration Bay v. Activision Blizzard — bucks the near universal trend of courts finding that the work product doctrine shields disclosure of communications exchanged with an actual or prospective litigation funder. Probably because it used the wrong legal standard.

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Update: Rules Governing Disclosure of Litigation Finance

Garrett Ordower

The U.S. Court’s Advisory Committee on Civil Rules signaled in its recently released report that litigation finance continues “growing and evolving” and that considering potential rules mandating disclosure of funding arrangements must begin “if at all, by undertaking a careful quest for information that may be hard to come by.” That process will not proceed…

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Litigation Finance Evangelism

Lee Drucker

If you have been looking for a niche that will help you attract new business from inside and outside your firm, one of the most promising areas is litigation funding. A wide range of lawyers in your firm need to be able to navigate litigation funding: transactional lawyers need to advise clients on the finance aspects of major litigation; litigators must advise clients who are considering potential claims of the various financing options available to them; and law firm leaders routinely evaluate the security and profitability of the firm’s fee arrangements with clients. Expertise in litigation funding has become a core competence. Being an expert in litigation funding used to be a competitive advantage. http://www.newellis.com/PDFs/2017/NewEllis-030617.pdf. But with the increased availability and acceptance of litigation funding, lawyers’ having experience with litigation funding– and funders—is a necessity and any firm lacking in this area will be at a distinct disadvantage.

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Litigation Finance: Work Product & Discovery in the Wake of Gharabe v. Chevron

Garrett Ordower

The closely watched case of Gbarabe v. Chevron – a class action against the oil giant based on an oil rig explosion off the coast of Nigeria – has been portrayed as a cautionary tale for the world of litigation finance. The defense attorneys’ dogged pursuit of the details of plaintiff’s outside funding, the story goes, succeeded, and aided in the attack on the adequacy of plaintiff’s counsel. The defense did successfully defeat class certification, but litigation funding ultimately played little or no role in the case’s demise.

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The best way for companies and their counsel to determine if litigation finance is an attractive option is to discuss it with us.