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Commercial Regulatory Issues

Republic of Cyprus Law: Engaging Litigation Finance Across Europe, UK 

Public policy from the Republic of Cyprus has evolved to support the use of litigation finance and third party investment. A judge in Cyprus has recognized litigation agreements from all European Union countries, the United Kingdom and common law jurisdictions. Litigation Finance Journal has collated 11 highlights to the new policy out of Cyprus.  The January 2022 case from the District Court of Larnaca cites the Kazakhstan Kagazy claim. The judge followed Brussels Regulation, ruling that Cyprus law recognizes litigation finance agreements originating from all European Union member countries. Cyprus also now recognizes third party agreements from the United Kingdom and other common law jurisdictions. Cyprus has been home to disputes since the middle ages, giving birth to a well-known legal precedent: champerty. With the Republic of Cyprus’ recognition of litigation investment, Cyprus is now taking the proper steps to ensure access to justice for those who couldn’t otherwise afford it. 
Commercial

Latin America’s Dawn of Complex Cross Border Litigation Finance 

Latin America is home to 33 countries, representing a unique collection of legal jurisdictions. With litigation finance maturing, Omni Bridgeway recently participated in a summit, titled ‘International Dispute Funding,' to discuss and explore funding cross border litigation structures spanning continental South America.   The International Association of Restructuring and Bankruptcy Professionals (or, better known as INSOL International), hosted a seminar to discuss evolving trends in Latin America. The group comprises a who’s-who of global attorneys and accountants that specialize in bankruptcy litigation.  Omni Bridgeway hosted the association of panelists, including: 
  • Tim DeSieno, global director of distressed debt and senior investment manager, Omni Bridgeway, who moderated the discussion.
  • Henrique Forssell, Sao Paulo, Brazil-based founding partner of Duarte Forssell Avogados.
  • Enrique González, Mexico City-based founding partner of González Calvillo.
  • Nyana Abreu Miller, counsel at Sequor Law in Miami.
Check out Omni Bridgeway’s profile of the event here.
Commercial Legal Innovation

Pioneering Smart Contracts as Digital Assets via Legal Investment(s)  

Smart legal contracts could be the future of law, as digital assets begin to include cross-border transaction(s) and blockchain-based legal utilities. The English Commission has promoted legal scholars to architect new and sophisticated smart contract systems that will hopefully drive litigation agreement systems and processes. In law, digital contracts have innovated the market, now digital contacts are being bundled under the multifaceted definition of digital assets.  Stewarts Law profiles the firm’s approach to digital assets, dissecting the role of smart contracts and the role that legal funding agreements will play in engaging end-to-end design functionality of blockchain and quantum blockchain 5.0 theories. This theory aims to connect parachains (multiple blockchain architecture) with quantum commuting and forward thinking semantics.   Stewarts suggests that a hybrid approach to legal digital assets is the future. 
Commercial Regulatory Issues

American Bar Association on Litigation Investment Misconceptions 

The American Bar Association (ABA) serves as the United States’ legal representative aiming to further national ideals related to liberty and justice. ABA provides members with various tools to maximize professional success, while setting a high standard for legal innovation across the nation. ABA suggests that litigation finance is a tool to increase attorney/firm profitability, that also facilitates clients with required cash-flow to fund quality litigation.   AmericanBar.org outlined five key educational concepts that the ABA finds a high priority for attorneys to embrace, as litigation investment continues to mature across the United States:
  1. Funding risk is mitigated by success scenarios. As such, normally funders only consider cases with a high likelihood of success. 
  2. Litigation funding is not exclusively used for funding legal bills. Proceeds from litigation agreements often serve as a cash-flow lifeline. 
  3. Funders are not decision makers in a case. Meaning, the client is in charge and the funder serves as third party to the claim. 
  4. Discovery of litigation agreements are broadly privileged. 
  5. Attorney client privilege is a point attorneys and clients must clarify at the outset, given various jurisdictional rules.
Case Developments Commercial

Delaware’s Supreme Court Shifts Fees to Losers 

The state of Delaware is home to some of the world’s largest corporate entities. New designs to litigation funding agreements are beginning to include provisions for the losing parties’ financial responsibility in covering some (if not all) of the case costs). Delaware's Supreme Court has stopped short of billing losing parties for state costs associated with facilitating trial. All this, part of a new Supreme Court decision out of Delaware, in Shareholder Representative Services LLC (“SRS”) v. Shire US Holdings, Inc. (“Shire”). Lake Whillans profiles the $20M case award, where a third of the award went to attorney case costs. The concept is broadly called “fee shifting” … Where in this instance the award could potentially total $20M+ to cover attorney representation.  Delaware is world renowned for innovating business structures, now helping pioneer litigation finance investment theory. Check out Lake Whillans’ profile of the case here.     
Commercial

The World’s Top Litigation Forensic Accountants 

FTI Consulting has recognized 31 of the world’s foremost pioneers, leading forensic accounting, disputes and litigation finance regulatory compliance. These professionals have scored major career wins in corporate finance litigation, which often require complicated funding arrangements.  With global digital asset innovation a hot topic, FTI Consulting also recognized 10 Digital Forensic Experts to the Who’s Who Legal: Investigations 2022 rankings. We have organized a complete list of FTI’s Who’s Who class of 2022:  Forensic Accountants
  • John Batchelor, Senior Managing Director, Corporate Finance & Restructuring – Melbourne
  • Stephen Burlone, Senior Managing Director, Forensic and Litigation Consulting – Boston
  • Andrew Durant, Senior Managing Director, Forensic and Litigation Consulting – London
  • Benjamin Ee, Managing Director, Forensic and Litigation Consulting – Singapore
  • Ken Fung, Senior Managing Director, Corporate Finance & Restructuring – Hong Kong
  • Julian Glass, Senior Managing Director, Forensic and Litigation Consulting – London
  • David Griffin, Senior Managing Director, Corporate Finance & Restructuring – Grand Cayman
  • John Hudson, Managing Director, Forensic and Litigation Consulting – London
  • Basil Imburgia, Senior Managing Director, Forensic and Litigation Consulting – New York
  • Lindi Jarvis, Senior Managing Director, Forensic and Litigation Consulting – Seattle
  • Andrew Morrison, Senior Managing Director, Corporate Finance & Restructuring – Grand Cayman
  • Brian Ong, Senior Managing Director, Forensic and Litigation Consulting – New York
  • Patrick Pericak, Senior Managing Director, Forensic and Litigation Consulting – Washington, D.C.
  • Jose Pineiro, Senior Managing Director, Forensic and Litigation Consulting – Madrid
  • Mark Pulvirenti, Senior Managing Director, Forensic and Litigation Consulting – Sydney
  • Jon Rowell, Senior Managing Director, Forensic and Litigation Consulting – Hong Kong
  • Jay Spinella, Senior Managing Director, Forensic and Litigation Consulting – Washington, D.C.
  • Ian Thompson, Senior Managing Director, Forensic and Litigation Consulting – London
  • Nicole Wells, Senior Managing Director, Forensic and Litigation Consulting – Toronto
  • Edward Westerman, Senior Managing Director, Forensic and Litigation Consulting – San Francisco
  • Dawna Wright, Senior Managing Director, Forensic and Litigation Consulting – Melbourne
Digital Forensic Experts
  • Nick Athanasi, Senior Managing Director, Technology – Dubai
  • Gino Bello, Senior Managing Director, Technology – Singapore
  • Richard Chalk, Senior Managing Director, Forensic and Litigation Consulting – London
  • Brett Clapp, Senior Managing Director, Forensic and Litigation Consulting – Singapore
  • Craig Earnshaw, Senior Managing Director, Technology – London
  • Renato Fazzone, Senior Managing Director, Technology – Düsseldorf
  • Erik Hammerquist, Senior Director, Technology – Los Angeles
  • Brett Harrison, Senior Managing Director, Technology – Washington, D.C.
  • Nick Hourigan, Senior Managing Director, Forensic and Litigation Consulting – London
  • Ian Smith, Managing Director, Technology – London
Commercial Regulatory Issues

The Chicago Daily Law Bulletin on Litigation Finance Ethics 

As third party funding markets around the world mature, regulatory scrutiny will continue. Attorneys looking to engage in funding arrangements that are in contrast with ethical guidelines may be reprimanded in various ways, including censure.  The Chicago Daily Law Bulletin conducted an investigation reporting on a father/son, lawyer/funder team that tried to game ethics rules. The son allegedly referred clients to his father for litigation loans. In one instance, a client defaulted on a loan … Only to find himself under recourse by the son’s law firm.  Illinois Rules of Professional Conduct were examined and the Attorney Registration and Disciplinary Commission found various violations, including forbidding guarantees of client financial aid.   Chicago’s Patterson Law Firm, LLC profiled the ethics conclusion on LinkedIn.   
Commercial People Moves

Kathi Vidal is the New USPTO Director

Litigation Finance Journal recently profiled Bloomberg Law’s insights into patent litigation growth forecasts, which claims that innovation is expected to grace the sector. In terms of a risk/reward profile, IP litigation is one of the most profitable areas of litigation finance. Enter Ms. Kathi Vidal, as the new USPTO director, Ms. Vidal is now one of the most significant regulators in the country.    IAM and Law Business Research recently profiled Ms. Vidal’s USPTO directorship as holding historic international significance. Ms. Vidal is leading the USPTO innovative approach to global IP policy and leadership. The USPTO aims to support pure cross-border entrepreneurship, something that the USPTO suggests is a necessity given the new age of globalization and geopolitical diplomacy.  The USPTO recently issued guidance on Russian patent and IP filings, warning USPTO filers of new rules against paying Russia for patent services using sanctioned banks. Meanwhile, Russia’s finance minister says that Mr. Putin plans to litigate if the West finds Russia in any type of ‘default.’ According to Barrons.com, there is no clear signal which legal body Moscow would turn to.
Commercial Deals

Africa Arbitration Academy on Dispute Investment in Africa

The Survey on Costs and Disputes Funding in Africa has been published by the Africa Arbitration Academy. The 39-page whitepaper explores litigation investment trends spanning jurisdictions across the African continent. The Survey discusses litigation investment as a tool for funding meritorious mediation, arbitration and litigation in Africa. As an added bonus, we have collated 35 highlights to the paper for reference.  According to the Survey, technology is the overarching factor to efficiency and productivity that will drive innovation across Africa’s legal jurisdictions. Some court systems in Africa are seeing increases in mediation and arbitration activity as a solution to preclude long litigation lifecycles.  Metrics from South Africa, Egypt and Kenya stand out as being some of Africa’s most advanced legal jurisdictions that are leveraging litigation finance tools and products. That being said, the lack of coordination at the continental level makes Africa a hotbed of international regulatory arbitrage frameworks. The Survey concludes that litigation investment will have a major impact on the future of Africa’s legal system.  According to the Africa Arbitration Academy, dispute investment in Africa is a thriving market for meritorious claimants who would not have access to justice without access to third party funding.