Insolvency Funding in Hong Kong and Singapore—Key Developments
In Asia, legal funding has been used in insolvency cases for over ten years. Since Hong Kong and Singapore adopted a funding framework for third-party arbitration, appreciation for funding has grown.
Burford Capital explains that in Singapore, amendments have been made to the existing Civil Law Act. In Hong Kong, the Arbitration and Mediation Legislation Ordinance came into law in early 2019. The introduction of an arbitration framework in both jurisdictions inspired greater interest in developing a more inclusive litigation funding industry across Asia.
Laws regarding legal finance and insolvency cases are constantly evolving, necessitating practitioners to keep their proverbial ears to the ground. As creditors grow more willing to pursue misconduct, fraud, or other claims against company directors—market momentum grows.
Several significant cases have shaped the development of legal finance in Singapore. In Re Vanguard Energy (2015), the court held that a liquidator may sell a company’s own fruits of a cause of action. The judge then affirmed that legal funding can be a vital facet of adjudicating insolvency cases. Two years later, an amendment to the Civil Law Act abolished maintenance and champerty laws. Finally, the IRDA became law in July of last year—which rolled existing insolvency laws into one piece of legislation.
Maintenance and champerty laws are still on the books in Hong Kong. But there have been small steps taken to expand the use of legal finance in insolvency matters. Unlike other jurisdictions, however, there is no wider framework welcoming the expanded use of legal funding.
Currently, Hong Kong courts require approval for the use of funding on an individual basis. In most cases, this part of the process is included in the funding agreement. However, in Re: Patrick Cowley, it was determined that liquidators didn’t need court approval before making an agreement with a funder.
Hong Kong is also overhauling its insolvency law regime in an effort to clarify and expand the use of legal funding in insolvency and restructuring matters.