Access to Justice for Developing Countries: Third Party Funding for Sovereigns in WTO Disputes

Australia’s litigation-funding industry just received the judicial certainty it has craved.
Clayton Utz reports that the High Court, in Kain v R&B Investments [2025] HCA 26, unanimously held that the Federal Court may impose common-fund orders (CFOs) or funding-equalisation orders at settlement or judgment—ensuring all class members, not just those who signed funding agreements, contribute to a funder’s commission.
The Court reaffirmed Brewster’s bar on early-stage CFOs but found late-stage CFOs fall within the “just” powers of ss 33V(2) and 33Z(1)(g) of the Federal Court Act. Crucially, the bench rejected “solicitor common-fund orders,” ruling that any CFO benefiting plaintiff firms would contravene the national ban on contingency fees outside Victoria.
For funders, the decision cements the enforceability of commissions in nationwide class actions and removes a major pricing risk that had lingered since Brewster. For plaintiff firms, however, the ruling slams the door on a hoped-for new revenue channel.
The Court’s reasoning—tying funding commissions to equitable cost-sharing rather than contingency returns—will likely embolden funders to back larger opt-out claims, knowing a CFO safety-net is available at settlement. Meanwhile, plaintiff firms may redouble lobbying efforts for contingency-fee reform, particularly in New South Wales and Queensland, to reclaim ground lost in today’s judgment. Whether lawmakers move on that front will shape Australia’s funding market in the years ahead.
A junior gold explorer is turning to third-party capital to fight what it calls the expropriation of a multi-million-ounce deposit.
According to a press release on ACCESS Newswire, ASX- and TSX-listed Sarama Resources has drawn down a four-year, US $4.4 million non-recourse facility from specialist funder Locke Capital II LLC. The proceeds will pay Boies Schiller Flexner’s fees and expert costs in Sarama’s arbitration against Burkina Faso at the International Centre for Settlement of Investment Disputes (ICSID).
Sarama alleges the government retroactively revoked its Tankoro 2 exploration permit in 2023, halting development of the flagship Sanutura project. An arbitral tribunal chaired by Prof. Albert Jan van den Berg held its first procedural hearing on 25 July; Sarama’s memorial is due 31 October, and the company is seeking no less than US $120 million in damages.
Under the Litigation Funding Agreement, Locke’s recourse is limited to arbitration proceeds and the ownership chain of Sanutura; Sarama’s other assets remain ring-fenced. Repayment occurs only on a successful award or settlement, with Locke’s return calculated on a multiple-of-invested-capital basis and adjusted for timing.
The deal underscores the continued appetite of specialist funders for investor-state claims, particularly in the mining sector where treaty protections offer a clear legal framework and potential nine-figure payouts.
A Texas-based consumer litigation financier is betting that radical price transparency will set it apart in the crowded pre-settlement funding market.
An Express Legal Funding press release announces that the company has launched a web-based “Lawsuit Loan Calculator” built on Gravity Forms that lets plaintiffs and their counsel generate real-time payoff estimates before taking an advance.
Company strategy director Aaron Winston said the tool aims to “bring transparency and confidence to a process that has historically felt opaque,” noting that many accident victims accept costly funding without a clear view of cumulative fees. The calculator outputs simple-interest repayment schedules and allows users to toggle loan amounts and projected case duration so they can compare the effective cost of capital against other options.
Express Legal Funding, founded in 2015 and active in more than 40 U.S. states, prices its non-recourse advances on a fixed-rate basis and caps total payback at the lesser of settlement value or contractual maximum. The company said the calculator also gives personal-injury lawyers a “conversation starter” to educate clients on true borrowing costs and to discourage over-funding that could jeopardize net recoveries. Industry peers have offered similar tools, but most calculate only monthly interest or require phone follow-ups for firm quotes; Express claims its interface delivers end-to-end transparency in under two minutes.