Although third party funding arrived on the Brazilian scene only recently, the practice has been warmly embraced relative to other Latin American markets. That has to do with Brazil's liquidity crisis following the Great Recession, in addition to fallout in the aftermath of Operation Car Wash, or Operação Lava Jato, and the subsequent reliance on arbitration as a result. According to Ramirez, Brazilians maintain a perception that litigation funding is utilized solely by impecunious claimants, or those facing liquidity constraints. Although perceptions are gradually changing, she points to one local practitioner who claims that “case law on the matter is scarce and major Brazilian arbitration chambers do not publish their precedents, so parties (be it funders, funded parties or adversaries to a funded party) still have to deal with a reasonable (and potentially damaging) degree of uncertainty.” Yet despite the uncertainty, the benefits of litigation funding are widely being recognized, with one practitioner going so far as to state that the practice "will evolve to [allow] major companies seeking reasonable financing that allows them to pursue their core business objectives while conducting high level litigation.” Such is the reality of litigation funding in other major jurisdictions, so why not Brazil? Major obstacles to the adoption of litigation funding have to do with costs and time constraints -- the former containing too few, and the latter containing far too many. The cost of filing a claim (appeal included) in Brazil is extraordinarily low, which of course precludes firms from seeking external funding. Additionally, cases can go through many layers of appeal before reaching conclusion, which means that funders can't accurately predict the timing of their expected recovery. Essentially, the barriers to justice that exist in Brazil work against litigation funders, whereas the barriers that exist in the United States, for example (those being high upfront costs and balance sheet exposure), directly play into a litigation funder's hands. According to Ramirez, by and large, third party funding is unregulated in Brazil. "Only recently did the Brazil-Canada Chamber of Commerce (“CAM/CCBC”) – one of the most renowned institutions in Brazil – issue a resolution specifically recommending that parties disclose the use of funding at the outset of an arbitration (Administrative Resolution 18/2016)." Practitioners on the ground believe in the likelihood that other arbitral institutions will at some point promulgate further regulations on third party funding in Brazil, though at present, the industry remains unregulated. So is Brazil on the precipice of future growth in the area of litigation funding? Ramirez seems to think so. "The resounding message," she writes, "is that Brazil is ripe for third party funding and that the time to enter the market is now. It is also clear that practitioners are enthusiastic about the prospect of having foreign third party funders with significant experience enter the market and level the playing field which has thus far been dominated by a single local Brazilian third party funder." To read Ramirez's article in its entirety, please visit this link. 

Kazakhstan Kagazy is one of the Central Asian country's only paper recycling and cardboard production companies. When Tomas Mateos Werner became its majority shareholder in 2009, the firm was in severe distress: it owed $110M to creditors, and according to Werner was “hollowed out by frauds." But thanks to Litigation Finance firm Harbour Litigation Funding, Werner has been able to bring a case against the firm's former CEO that would otherwise have proven too costly to pursue. The lengthy, expensive trial could lead to a payout of close to $260M; a real boon for Kazakhstan Kagazy, whose assets total $40M. Litigation Finance is leveling the playing field for the Kazakhstan Kagazy's of the world, via unparalleled capital infusion. In 2017, Litigation Finance investors raised £10B worldwide. Buford Capital - one of only two publicly traded litigation funders - led the charge with a record $1.3B invested during the calendar year. According to Burford’s CEO Christopher Bogart, we are witnessing the modernization of the legal industry, as it shifts from a cash-only business model towards more complex financing deals. “We’re leading the economic transformation of the legal industry,” Bogart says. The brash CEO is quick to point out instances where his Litigation Finance firm has upended the traditional legal paradigm. Take airline owner and Spanish investment group Teinver SA's claim against Argentina, alleging the country illegally expropriated its airlines. Seeking justice in international courts is fraught with challenges, especially when dealing with countries like Argentina which is rife with corruption, yet Teinver's case - backed by Burford - managed to secure a payout of $324m plus interest (disputes over the final awards are still ongoing). Indeed, the industry is making justice more accessible the world over. It is providing David a bevy of slingshots in battle after battle with Goliath. Yet that hasn't stopped regulators the world over from sounding alarm bells. Former UK Justice Minister and Tory Peer Lord Faulks QC, contends that litigation funding is “parasitic." According to Faulks: “The trouble is there’s a risk that the whole thing becomes about a commercial transaction rather than a dispute … it could become the corporate equivalent of [ambulance chasing].” Bogart bristles at the comparison. “The vernacular of ambulance chasing is quite literally ambulance chasing," says Bogart. "It’s about lawyers who deal in the world of small claims. That is not the business that we’re in at all." For the most part, lawmakers have been welcoming of Litigation Finance as a means to enable parties access to the justice system. After all, you can't win cases with money - you can only contest them. And Litigation Finance allows individual and businesses to contest cases that they otherwise would not have the resources to pursue. Which brings us back to Kazakhstan Kagazy. Harbour Litigation Funding, the company's litigation financier, currently maintains a $1B AUM, and has doubled its capital deployment over the past year alone. “One of the cases we’re funding at the moment is a class action of seaweed fishermen in Indonesia claiming compensation for alleged damages caused by an oil spill by PTTEP Australasia Ashmore Cartier PTY Ltd,” says Martin Tonnby, Harbour's Founder and CEO. A Kazakhstan paper company looking to recoup losses from corruption? Indonesian fishermen fighting a global oil & gas producer? Goliath beware: the Davids of the world are coming... and they're carrying shiny new slingshots.

For the past 15 years, Brazil has suffered one of the world's most chronic and severe backlogs of pending patents. Now, the Brazilian Patent and Trademark Office (PTO), is looking to reduce that backlog in one fell swoop: by granting patent rights until 2020 to 231,000 pending applications with no examination. The Brazilian government is seeking to introduce this emergency measure as an "extraordinary solution" to the crisis that has plagued the nation's patent market for a generation. Brazil's patent problems arose after it enacted the Patent Statute in 1996, making the nation TRIPS compliant and expanding its range of patentable products and industries. As a result, the number of patent filings has increased 200% over the last 15 years, without a corresponding increase in PTO examiners. Brazil's current average waiting time for all technological patents is over 10 years. For pharmaceutical and telecom patents, the average wait time is over 13 years. According to the PTO, the current number of examiners (326) is sufficient to handle the present influx of new filings, however it is the backlog that is keeping the PTO in check. Therefore, the PTO has floated the idea that 231,000 pending patents within the backlog (not including pharma patents, which are covered by a separate regulatory body) be immediately granted with no examination required. Here's where things get tricky, however: a third party would maintain the right to file a pre-grant opposition within 90 days of the automatic patent filing. Should a pre-grant filing take place, the patent application would automatically be reviewed by the PTO. Companies could then theoretically check the automatic patent application list for competitor patents, and file a pre-grant opposition in order to remove their competitors' patents from the queue. Of course, that type of action would require an upfront legal spend. Perhaps this is an area that astute litigation funders in the market could pursue-- There is additional concern, of course, that patents granted via the automatic waiver may in the long run be vulnerable to invalidity challenges in post-grant opposition, as well as the Federal Courts. Local and state judges may also be reluctant to enforce patent decisions in cases involving patents obtained through automatic application. The PTO itself is not beyond judicial reproach; there have already been numerous lawsuits against the PTO grounded on the unlawfulness of the lengthy backlog, which have successfully compelled the PTO to examine a patent application by means of a court order. So it's not a given that the PTO's automatic grant will be accepted by state and even federal courts. Again, these are all nitty-gritty details that could play out in the litigation finance industry's favor, should the PTO move ahead with its suggested 'extraordinary solution.'