One of the key talking points following the Supreme Court’s PACCAR ruling was how funders could alleviate external concerns about third-party funding through a rigorous adherence to the industry association’s code of conduct. A recent ruling by the Competition Appeal Tribunal (CAT) has taken this idea and applied it a step further, by holding a foreign funder to a written commitment to adhere to these rules.

An article in Legal Futures details a ruling by the CAT that requires Softwhale Holdings, a foreign litigation funder, to comply with the UK Association of Litigation Funders’ (ALF) code of conduct before it will grant a collection proceedings order (CPO) in the claim Softwhale is funding. Whilst the company, which is part of the Ayre Group owned by Canadian billionaire Calvin Ayre, had already stated that it would voluntarily comply with ALF’s rules, the CAT ruling has enshrined this commitment as a written condition of being awarded the CPO.

The claim at the heart of the issue is targeting four cryptocurrency exchanges which allegedly colluded to delist the Bitcoin Satoshi Vision (BSV) cryptocurrency in 2019. Softwhale is providing up to £18.6 million in funding to bring the claim on behalf of over 240,000 investors who allegedly suffered approximately £10 billion in financial losses as a result of the actions undertaken by Binance, Bittylicious, Kraken and Shapeshift. The class representative for BSV Claims is the former chair of the Competition & Markets Authority, Lord Currie, with Veltior Law providing legal representation.

Softwhale’s funding agreement was first signed in July 2022 and has since been reworked to comply with the requirements imposed by the Supreme Court’s PACCAR ruling. To support the litigation funding agreement, after-the-event insurance of has been secured which covers £2 million pre-certification and £14 million post-certification.

One year ago, the UK Supreme Court shook up the litigation funding landscape with its now infamous PACCAR ruling. There has since been a push to reintroduce the Litigation Funding Agreements (Enforceability) Bill, but it appears the decision to do so will now be delayed until this time next year, at the earliest.

City A.M. reports that Lord Sandhurst Guy Rhys wrote to the Ministry of Justice asking if the bill would be reintroduced, and the decision by the Ministry is to wait until an official review has concluded, which should take us into the middle of next year. In its announcement, the Ministry noted "the critical role third-party litigation funding plays in ensuring access to justice," yet also recognized that "concerns have been raised about the need for greater regulation of Litigation Funding Agreements."

The Civil Justice Council is currently reviewing the issue of litigation funding regulation and access to justice in the UK, and aims to conclude its review by the summer of next year.

As expected, litigation funders were not thrilled with the Ministry's response. Neil Purslow, chairman of the International Legal Finance Association, said “it’s deeply disappointing the government has taken the decision to seemingly deprioritise access to justice for people like the sub-postmasters by kicking the can down the road.” Of course, industry opponents such as the U.S. Chamber of Commerce rejoiced at the decision, with Seema Kennedy, executive director of Fair Civil Justice proclaiming that "despite the claims from funders and law firms about the existential risk to the industry, there has been a surge of new group action claims, with funders able to find work-arounds to existing agreements and proceed much the same as before.”

If that sentiment is correct, it dose pose the question as to the purpose of the regulation in the first place. Perhaps the Civil Justice Council will consider that in their forthcoming review.

As LFJ reported in July of last year, a claim funded by Litigation Capital Management (LCM) and brought against the Tanzanian Government had achieved a landmark victory, after Indiana Resources was awarded $109 million in damages. Nearly a year later, the parties have come to an agreement which will see the claimant receive 82.5% of the original award.

Reporting by the Cairns Post covers the outcome of an annulment hearing conducted by the International Centre for Settlement of Investment Disputes (ICSID), with a settlement that will see the Tanzanian Government pay Indiana Resources $90 million over its unlawful expropriation of Ntaka Hill base metals project. Whilst the claimant has already received one payment of $35 million, it has now been agreed that Tazania will pay a further $25 million by October 25, 2024 and $30 million before March 30, 2025.

Commenting on the outcome of the ICSID hearing, Indiana Resources’ executive chairman, Bronwyn Barnes said that “this settlement clearly demonstrates Tanzania’s commitment to work with international mining investors to resolve the historical dispute between the parties.” Barnes went on to add that he is confident “Tanzania will fully abide by the terms of the settlement and that the remaining instalment payments will be made by Tanzania in compliance with the agreed terms.” 

The settlement contains provisions to ensure that if Tanzania does not fulfil these agreed payments, then proceedings can be recommenced before ICSID, which would include the enforcement of the award and seizure of Tanzanian assets to do so. Whilst the initial $35 million payment has been set aside to repay LCM’s funding and legal costs, identified to be approximately $23 million, the remainder of this payment has been retained to cover any of the proceedings that would ensue under such a breach of the settlement agreement.

The original July 2023 decision by an ICSID ad hoc arbitral panel, found that Tanzania had breached the UK-Tanzania Bilateral Investment Treaty when it cancelled a mining retention license and seized the Ntaka Hill Project which had been held by a trio of three companies under majority ownership of Indiana Resources. As the manager of the joint venture, Indiana Resources had led the claim of arbitration against the Tanzanian government since 2019 and according to an announcement in August 2020, had secured $4.65 in funding from Litigation Capital Management.

Investor state treaty disputes have often represented a valuable investment opportunity for litigation funders, such as the claim brought by Rockhopper Exploration against the Italian government that LFJ reported on in 2022. However, a report by an environmental group argues that the high volume of these claims will result in states taking a more cautious approach when it comes to combatting climate change.

An article on BNN Bloomberg highlights a new report from climate think tank E3G which examines the use of Investor-State Dispute Settlement (ISDS) claims against national governments, and argues that the fossil fuel industry is claiming billions of dollars in damages whilst having a “chilling effect” on climate action. Using data from the International Institute for Environment and Development, the report found that 20% of the 1,700 public cases have involved companies in the fossil fuel industry, with at least $80 billion recovered in damages. 

The Rockhopper Exploration claim is highlighted as an example of this trend, with the firm being awarded €190 million ($206 million) in damages from the Italian government, over the state’s denial of a production concession from its ban on oil and gas exploration. The Rockhopper claim was financed by Harbour Litigation Funding, and whilst the Italian government is attempting to have the award annulled, Rockhopper’s CEO has stated that they expect the “the annulment request will be rejected in due course.”

Lisa Sachs, director of the Columbia Center on Sustainable Investment, spoke with Bloomberg and said that as long as funders are willing to back the companies making these cases, “states that take necessary climate-related measures may be exposed to increasing risk of abuse of ISDS claims.” Tai-Heng Cheng, a partner at Sidley Austin, argues that investors and states may eventually find a pragmatic common ground on these treaty disputes, “but until we get there, there is a period of instability that we’re going through.”