Relevant Issues Pertaining to Third-Party Funding in Court and Arbitration Proceedings

Key conclusions

Third-party funding of proceedings – a practice with potential

“Now that corporate lawyers are aware of this mechanism [third-party funding, TPF – Ed.], they are increasingly bringing in clients with a real potential for disputes, but there is no way to fund lengthy processes and expensive lawyers. They really are asking for it. [...] The demand for funding is growing,” Irina Tsvetkova, Founder, PLATFORMA.

“We’ve recently been seeing requests from large Russian companies that don’t want to bear the risks of financing the process themselves and would rather share the risks with a financing organisation, so large companies also want to raise funding like this. […] In our practice, at least the investors are willing to finance a project if the profit is somewhere around 3 or 4 times higher than the money invested,” Dmitry Kaysin, Partner, Rybalkin, Gortsunyan, Dyakin & Partners.

“It seems to me that the prospects for third-party funding in international arbitration are excellent. [...] It’s a useful thing, but obviously there are risks everywhere, especially when new, so to speak, legal products are being introduced. The things that have been said here today make one think that arbitration is, after all, an art form, and as we know, real art cannot develop without funding,” Mikhail Savransky, Deputy Chairman, Arbitration Center at the Russian Union of Industrialists and Entrepreneurs (RSPP).

“The Hong Kong International Arbitration Centre is actively gaining experience, and there are more and more FTL cases. It was only two and a half years ago that FTL was fully allowed, and we feel that the institution is developing at a brisk pace. […] The industry holds a lot of promise for all of us,” Eric Ng, Deputy Secretary-General, Hong Kong International Arbitration Centre (HKIAC).

PROBLEMS

Western sanctions have affected funding for litigation and arbitration

“Because of the sanctions imposed, we’ve had foreign law firms refusing to work with Russian clients. We are seeing unappealable seizures of Russian assets abroad and assets that are difficult if not impossible to find. As a result, [there have been - Ed.] refusals on the part of foreign investors to finance Russians. Problems with payments... have also occurred,” Irina Tsvetkova, Founder, PLATFORMA.

“Since the events on 24 February, we’ve received funding for one case at the London Court of International Arbitration, several projects were put on hold, and one project ceased completely following the events. We’ve seen difficulties in the market, including... in terms of payments, difficulties engaging subcontractors. […] Sometimes, if we represent a company that’s under sanctions, we need a licence, and this slows down the process and causes resentment on the other side, sometimes with arbitrators,” Dmitry Kaysin, Partner, Rybalkin, Gortsunyan, Dyakin & Partners.

SOLUTIONS

Third-party funding of court proceedings needs to be regulated

“The demand for funding is growing, in light of which we’ve been working on a judicial funding bill for several years now. [...] The business, judicial, and professional communities all support the idea now,” Irina Tsvetkova, Founder, PLATFORMA.

“I believe that three issues can and even should be regulated legislatively by amending, for example, the Civil Code, the Law [of the Russian Federation – Ed.] on International Commercial Arbitration. First and foremost, of course, is the obligation of the party to disclose financing and information about the beneficiary in order to avoid potential conflicts of interest,” Dmitry Kaysin, Partner, Rybalkin, Gortsunyan, Dyakin & Partners.

“As for whether there should be additional legislation: I agree with my colleagues that we definitely need it. Maybe it doesn’t need to be excessively detailed... but the basic [principles – Ed.] do need to be enshrined in legislation... to further enshrine the rights of claim holders. As for the level of regulation, it seems to me that the legislative act should be foundational,” Sergey Seliverstov, Director for Legal Support of Administrative and Economic Activities and Judicial Work, Russian Export Center.

“It’s particularly important to fix the terms of the agreement in relation to specific deals, contracts, and so it was right to mention that the main points should be enshrined in legislation. We should include relevant provisions in the [Federal] Law on Arbitration (Arbitration Proceedings) in the Russian Federation, and the Ministry of Justice already has a proposal that’s being discussed right now,” Ivan Zykin, Professor of the Department of Private International Law, All-Russian Academy of Foreign Trade of the Ministry of Economic Development of the Russian Federation; Deputy Chairman, International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation.

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