international arbitration

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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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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Draft Report of the International Council for Commercial Arbitration on Third-Party Funding: What You Need Know

Marla Decker

The Draft Report of the International Council for Commercial Arbitration and the Queen Mary University of London Task Force on Third-Party Funding in International Arbitration: What You Need to Know

The international arbitration community has been a leader in the adoption and evolution of third-party funding. Continuing that trend, The International Council for Commercial Arbitration (“ICCA”) partnered with Queen Mary University of London (“QMUL”) in 2013 to establish a task force comprised of over 50 leading international arbitration experts (the “Task Force”) to “identify and study the issues that arise in relation to third-party funding in international arbitration, and to determine what outputs, if any, would be appropriate to address them.”

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Third Party Funding in International Arbitration – Rising Interest, Rising Protections for Funded Parties

Marla Decker

Third party funding of international arbitration disputes has been a hot topic for some time, and more and more we see its globalization take hold. Third party funding and international arbitration are a natural fit because of the great risks, high costs, and large amounts at stake in international arbitration disputes. Third party funding allows those costs and risks to be mitigated by the funder in exchange for a share of the potential award. In the past year, we have seen a noticeable uptick in the number of claimants seeking funding for international arbitration claims. (Lake Whillans funds U.S and Canadian litigation as well as domestic and international arbitration).

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Racing to The Start Line: Singapore & Hong Kong Take Steps To Permit Third Party Funding

Marla Decker

Recently, the race in Asia has led Hong Kong and Singapore to introduce legislation that would enable the use of third-party funding in arbitrations seated there. Lake Whillans funds litigation and arbitration globally, and we asked Nicholas Lingard, Robert Kirkness and Emily Stennett of Freshfields Bruckhaus Deringer’s international arbitration practice in Asia to detail the recent developments in Hong Kong and Singapore.

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UK High Court Affirms Arbitral Ruling that Party Can Recover Litigation Finance Costs

Marla Decker

The High Court decided an appeal brought by Essar Oilfield Services, which challenged an award granted in an ICC arbitration to Norscot Rig Management, in which the arbitrator directed Essar to pay not only Norscot’s damages and attorneys’ fees, but also Norscot’s costs of litigation financing. In the dispute between the two oil and gas companies, Norscot used financing to pay for its £647,000 in attorneys’ fees, and, as a result of the successful arbitration, Norscot was obligated to the funder for the greater of three-times that amount or 35% of the damages award. (The amount of the damage award has not been reported.) Essar challenged the arbitrator’s authority to award the litigation finance costs in the High Court.

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Litigation Finance, a Success Story

Marla Decker

More than five years after a small family-owned company based in England filed suit against U.S. construction machinery giant Caterpillar Inc. for breach of contract and trade secret misappropriation of its “Bug coupler” technology (specialized equipment used with hydraulic excavators), the journey has paid off. In December, after an eight-week trial, a jury awarded plaintiff Miller UK Ltd. (“Miller”) $74.6 million in damages (including $49.7 million in exemplary damages); an award that Miller’s attorneys contend is the largest ever under the Illinois Trade Secret Act.

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The Maple Tree is Growing: Commercial Litigation Funding in Canada

Marla Decker

The litigation finance industry in the U.S. is relatively new compared to the more mature markets that exist in Australia, the U.K. and other parts of Europe. Continuing the growth trend in North America is now Canada, which has begun to adopt litigation finance on its own terms.

Like its Commonwealth sister Australia, litigation finance in Canada found its initial toehold in class action funding, in response to the ever-increasing costs of litigation and the risks of a loser-pays system. Over the last few years, Canadian courts have approved litigation funding agreements in the class litigation context despite long-standing adherence in Canada to the champerty and maintenance doctrines. In fact, the province of Quebec took the unique step of establishing a public fund that is used to finance class lawsuits as discussed by University of Montreal Professor Catherine Piché at last month’s symposium on litigation finance at NYU. Ontario has a similar fund.

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