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As the Founder and CEO of Fenchurch Legal, Louisa is responsible for overseeing all business operations, including fundraising, and ensuring the business’s overall success.

Louisa founded Fenchurch Legal in 2020 after an interest in the litigation finance market sparked an idea to apply a secured lending model to litigation finance. She discovered a market largely dominated by funders focusing on high-value, complex cases such as class actions, however, there was a lack of support for smaller claims. This insight led to the creation of Fenchurch Legal.

Before launching Fenchurch Legal, Louisa operated the broking and dealing desk for a corporate brokerage and finance firm in London. In this role, she gained extensive experience in mergers and acquisitions, corporate finance, and investment product structuring. Her role involved daily interactions with both retail and professional investors, as well as corporate clients.

Fenchurch Legal operates differently from traditional litigation funders in several ways. Firstly, we focus on high-volume, low-value, process-driven consumer cases such as housing disrepair and financial mis-selling, where there is strong legal precedent supporting the claim type. Whereas larger litigation funders typically invest in high-stakes commercial disputes or class actions with multimillion-pound claims.

Secondly, the way we structure our lending is different. Traditional funders invest in cases on an outcome basis, taking equity-style positions – meaning they only receive a return if the case is successful, so they bear the risk of loss if the case is unsuccessful. In contrast, Fenchurch Legal operates as a direct lender, providing secured revolving credit facilities to law firms to draw down against costs and disbursements are repaid regardless of case outcomes. This structured lending model offers stability for both law firms and investors, ensuring predictable outcomes and controlled risk.

The key differentiation is that traditional funders invest in cases, whereas we provide loans.

That’s a great question and one we often get asked. The answer is simple: Fenchurch Legal is a lending business, not a law firm.

Operating within the private debt sector, we provide business loans specifically for consumer legal case costs and disbursements with minimal litigation. Our expertise lies in secured lending, structuring loans and managing financial risk – not litigating cases.

We partner with law firms by providing them with the financial resources they need to run cases efficiently, while we focus on risk management, due diligence, and loan security.

Before entering a specific case type, we work with legal advisors to obtain counsel’s opinion and review case law and outcomes to assess viability and risk.

As part of our underwriting process, we outsource legal expertise where needed to assess a law firm's legal procedures, compliance with SRA regulations, as well as case viability. Additionally, we continuously audit and monitor the firms we fund, ensuring they meet strict legal and regulatory requirements, both internally by our team and by outsourcing to specialist legal professionals.

Unlike traditional litigation funders who take an active role in case strategy, our role is purely financial. We lend, monitor, and safeguard investor capital, ensuring that the law firms we fund have the financial resources and oversight needed to handle legal claims successfully.

One of the biggest opportunities the small-ticket claim market brings is the ability to fund cases with a clear legal precedent against highly liquid defendants, such as government bodies, banks, or insurers. This ensures that we have no risk of non-payment of damages and costs.

Another advantage is the scalability of our model. By funding high volumes of claims, we can diversify risk across multiple law firms and case types. To date, we have funded over 15,000 small consumer claims. Out of the 6,145 loans that have been repaid, 92% were successful. For the 8% that were unsuccessful, ATE insurance provided the necessary coverage, reinforcing our robust risk management framework.

One of the challenges of funding smaller cases is the operational complexity of managing a high volume of claims efficiently. However, we have developed strong due diligence, auditing, and monitoring systems that allow us to track performance and mitigate potential risks. We also have our own loan management software which provides a complete overview of our loan book and how our law firms are performing.

How does Fenchurch handle security and risk management concerns? 

At Fenchurch Legal, security and risk management are at the core of our lending model. As a direct lender, we structure loans to safeguard investor capital while ensuring law firms can operate effectively. Our key risk management strategies include:

• Secured Lending Structure – Loans are backed by ATE Insurance, case proceeds, debentures and personal guarantees, ensuring capital protection.
• Comprehensive Due Diligence – Before lending, we assess law firms’ track records, financial health, and case viability to ensure they meet our lending criteria.
• Legal Precedent & Expert Review – We consult with barristers, law firms, and experts to evaluate claim types and expected outcomes.
• Ongoing Monitoring & Auditing – We track performance, flag risks early, and ensure compliance with agreed terms.
• Diversification – We fund a high volume of small, process-driven cases to spread risk across multiple firms and claims.

How do investors benefit from Fenchurch Legal's differentiated approach to the market? 

Investors choose Fenchurch Legal because they like our approach, which provides a predictable and secure investment opportunity. We operate as a direct lender offering structured loan facilities, meaning our investors benefit from a more stable, fixed-income-like investment model.

Our secured lending structure, combined with unique features such as risk management and diversification across a high volume of cases, provides investors with lower risk exposure and predictable returns.

As I often say, I come from a secured lending background, not a legal one. You wouldn’t ask us to stand up in court and argue a case, but you can trust us to look after investor money by structuring loans and managing risk effectively – that’s what we are good at.

I personally believe and during my professional experience I have seen that the UAE’s legal sector has experienced significant expansion, driven by economic growth, international investments, and regulatory advancements. This transformation has directly influenced the demand for litigation funding, as businesses and individuals seek financial support to navigate complex legal disputes without upfront costs.

Let me explain, what are few major factors driving demand in UAE market:

Increase in Commercial Disputes:

• With the UAE’s rise as a global business hub, contract disputes have surged, particularly in high-stakes sectors like construction, real estate, and finance.
• The growing reliance on arbitration and cross-border transactions has made litigation funding a strategic necessity

Dual Legal Framework:

• • The UAE’s unique system—onshore civil law courts and offshore common law jurisdictions (DIFC, ADGM)—creates a dynamic environment for litigation funding.
  • Offshore jurisdictions provide clear regulatory frameworks for third-party funding, increasing confidence among investors and litigants.

• • High litigation and arbitration costs often deter claimants from pursuing valid cases.
  • Litigation funding ensures businesses and individuals can seek justice without financial constraints, shifting the cost burden to funders.

• • The DIFC’s Practice Direction No. 2 of 2017 and ADGM’s Funding Rules 2019 have legitimized litigation funding, fostering investor confidence.
  • This has encouraged global litigation funders to enter the UAE market, increasing competition and accessibility.

At WinJustice, we are committed to spreading awareness and advancing the adoption of litigation funding across the MENA region. Our commitment is reflected in various initiatives, including education, thought leadership, and industry awareness.

As part of this mission, we are excited to announce the launch of our LinkedIn newsletter, "Litigation Funding MENA Insight"—the first dedicated newsletter in the region focusing on litigation funding. This initiative is particularly significant as it is led by a UAE-based company, bringing deep regional expertise and global perspectives.

Our newsletter will serve as a trusted resource, providing insights, case studies, and expert discussions on litigation funding. To ensure accessibility and reach, it will be published in both Arabic and English, making it the go-to platform for businesses, legal professionals, and investors interested in this evolving field.

The key Impacts on the Legal Industry: 

• There is Enhanced Access to Justice: SMEs and individuals can now challenge well-funded opponents without financial barriers.
• Market Competitiveness: The entrance of international funders has led to the adoption of global best practices, benefiting claimants.
• Stronger Negotiation Leverage: With financial backing, businesses can negotiate settlements more effectively, knowing they have the resources to litigate if necessary.

Also, there are reports that litigation funding in the UAE increased by 40% over five years, with SMEs as the largest beneficiaries. Hence, we can say that litigation funding has become a crucial tool in the UAE’s evolving legal ecosystem. As regulatory clarity improves and market awareness increases, its role in providing financial access to justice will only strengthen.

2. In your experience, how do cultural and legal nuances in the UAE influence the way litigation funding investments are sourced and structured?

According to my experience, The UAE’s litigation funding market is shaped by deep-rooted cultural values and a dual legal framework that integrates both civil and common law principles. For anybody, understanding these nuances is essential for structuring investments effectively.

I can say that broadly Cultural & Legal Influences includes factors such as:  

• • The UAE business community traditionally favors dispute resolution methods like arbitration and mediation over lengthy court proceedings.
  • Litigation funders must tailor their models to prioritize arbitration financing, particularly for high-value commercial disputes.

1. • Many UAE businesses operate under Islamic finance principles, requiring litigation funding models to be structured without interest-based arrangements.
   • Alternative funding structures, such as success-based fees and equity-sharing, are gaining traction.

1. • Businesses and high-net-worth individuals value discretion in legal matters.
   • Litigation funders must implement strict confidentiality agreements and strategic case management to ensure reputational protection.

1. • Offshore jurisdictions (DIFC & ADGM) have explicit litigation funding regulations, making them attractive venues for funded claims.
   • Onshore courts lack clear regulations, requiring funders to conduct extensive due diligence before financing claims.

1. • Disputes involving government-linked entities require additional compliance measures and strategic planning.
   • Litigation funders must account for potential regulatory scrutiny when financing such cases.

If you research, you may find incidents like Dubai-based firms have secured litigation funding for a contractual dispute against a overseas partner, leveraging the ADGM’s favorable legal framework.

Precisely speaking, Cultural and legal nuances make the UAE a unique but highly promising market for litigation funding. Tailored investment structures that respect local customs, regulatory landscapes, and business preferences are key to success. In fact, we estimate that 60% of funded cases in the UAE involved arbitration, highlighting the preference for ADR.

Actually, if you see, The UAE is rapidly emerging as a key market for litigation funding, but as with any evolving legal landscape, obviously funders have legitimate concerns about investing in the region. Addressing these concerns requires a deep understanding of the regulatory environment, enforcement mechanisms, and legal complexities that define the UAE’s legal system.

Few genuine concerns for Litigation Funders could be: 

• • • Unlike jurisdictions such as the UK and Australia, UAE’s onshore courts lack a well-defined framework for litigation funding.
    • Offshore jurisdictions like the DIFC and ADGM have established regulations, but clarity is still evolving in onshore courts.

1. 1. • A favorable judgment does not always guarantee successful enforcement, particularly in cross-border disputes.
      • UAE’s legal system allows for appeals and potential delays in execution, which can extend the time before a funder sees returns.

1. 1. • Funders must assess whether cases have strong legal merit and a high probability of success.
      • There is also concern over whether claimants will be able to recover awarded damages, particularly if assets are difficult to trace.

UAE courts do not always follow strict precedents, which creates unpredictability for litigation funders who rely on historical case outcomes for underwriting decisions.

However, the good thing is we can address these concerns through initiating appropriate measure, like:

• • Encouraging claimants to litigate within DIFC or ADGM courts can provide a more predictable legal framework with explicit third-party funding regulations.

1. • Litigation funders should conduct thorough case assessments, including analyzing asset recovery potential before committing to funding.

1. • Collaborating with asset recovery firms and legal experts to ensure judgments are enforceable across jurisdictions.
   • Utilizing treaties such as the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

1. • Structuring agreements with contingency elements can mitigate risks.
   • Working with law firms that offer success-based fees ensures that all stakeholders are aligned in their objectives.

To summarise, The UAE is a lucrative but complex market for litigation funders. By strategically selecting jurisdictions, conducting robust due diligence, and leveraging international enforcement treaties, funders can mitigate risks and take advantage of the growing demand for litigation finance in the region.

At WinJustice, we firmly believe that managing duration and collectability risk is one of the most critical aspects of litigation funding. In the UAE, these risks can be more significant due to procedural timelines and enforcement challenges. However, with a structured and strategic approach, they can be effectively mitigated. This is precisely what we implement at WinJustice—ensuring that every case is managed with precision, minimizing risks while maximizing successful outcomes.

Lets understand Duration and Collectability risks:

• • • Court proceedings in UAE onshore courts can take longer due to multiple appeal stages.
    • Arbitration cases tend to resolve faster, particularly within DIFC and ADGM jurisdictions.

1. 1. • Even if a judgment is awarded, claimants may face difficulties in collecting damages.
      • Defendants may shift or conceal assets, making enforcement challenging.

Our suggested strategies to manage these risks are:

1. Prioritize Arbitration Cases:

1. 1. • Arbitration is often faster than litigation and provides clear enforcement mechanisms.
      • DIFC and ADGM arbitration courts have robust mechanisms for enforcing awards internationally.

2. Early Case Assessment & Due Diligence:

1. 1. • Before funding a case, funders must evaluate the financial stability of the defendant and whether they have recoverable assets.
      • Engaging forensic accounting experts helps in asset tracing.Structuring Litigation Agreements with Milestones:

1. 1. • Including timelines in funding agreements helps ensure claimants and their legal teams are progressing cases efficiently.
      • Phased funding disbursements can incentivize timely case resolution.Working with Local Legal Experts & Asset Recovery Teams:

1. 1. • Partnering with firms specializing in UAE asset recovery and judgment enforcement can strengthen collectability efforts.

If we compare UAE to Other Jurisdictions:

• • UAE vs. UK: UK has established litigation funding precedents, making duration risk lower.
  • UAE vs. US: US litigation is costly but has a well-defined process for class action and third-party funding.
  • UAE vs. Singapore: Singapore offers a structured approach similar to DIFC, making it a comparable market.

Therefore, while duration and collectability risks are slightly higher in UAE than in more mature markets, leveraging arbitration, strong due diligence, and phased funding agreements can significantly reduce risks for litigation funders.

In my opinion, Litigation funding in the Middle East is at an inflection point. Over the next decade, the region will witness increased adoption of legal financing, supported by regulatory advancements, growing market awareness, and technological integration.

Some of major trends & developments shaping the Future, are like

• • • Onshore UAE courts may introduce formal litigation funding regulations, similar to DIFC and ADGM frameworks.
    • Governments in Saudi Arabia and Qatar are exploring third-party funding regulations, expanding the regional market.

1. 1. • More law firms and corporate clients will turn to litigation funding, especially in high-value commercial disputes.
      • The construction and real estate sectors, which are prone to disputes, will see a rise in funding demand.

1. 1. • Artificial Intelligence (AI) will play a key role in risk assessment, helping funders predict case outcomes with higher accuracy.
      • AI-powered analytics will enhance due diligence and underwriting processes.

1. 1. • Arbitration is expected to dominate litigation funding in the region due to faster resolution timelines and enforceability.
      • Growth of regional arbitration centers such as DIAC (Dubai

International Arbitration Centre) will further facilitate funded cases.

1. 1. • Large international litigation funders are likely to enter the Middle East, increasing competition and refining best practices.
      • Institutional investors, including hedge funds and private equity firms, will seek exposure to litigation funding as a diversified asset class.

Yes, there could be some challenges that may shape the future, like:

• • Ensuring ethical litigation funding practices to prevent frivolous lawsuits.
  • Balancing regulatory oversight with industry growth to maintain market credibility.

So, the next 5-10 years will see the Middle East, particularly the UAE, become a key hub for litigation funding. With regulatory progress, market maturity, and technological advancements, the region is poised for significant growth in third-party legal financing, offering both opportunities and challenges for funders and legal professionals alike.

Ondrej is Partner and Head of Investments at LitFin, which he joined shortly after its foundation. He is particularly responsible for the legal agenda, investments, and business relations. Prior to LitFin, he gained professional experience as a lawyer focusing on transactions and corporate law and as an investor in the private sector. Ondrej graduated in law from Masaryk University (Czech Republic) and Brussels School of Competition (Belgium).

Below is our LFJ Conversation with Ondrej Tylecek: 

LitFin has become one of the most prominent litigation funders in the continental EU for follow-on group litigations. Can you take us through the company's growth process - how were you able to effectively scale your business?

I think the key to our success is that, unlike other funders, LitFin is a vertically integrated structure. With that being said, we’re not just deploying the capital into cases brought to us on a silver plate, but we’re actively building the cases from the bottom, going the extra mile, which other players on the market typically don’t. For example, we’re creating personalized onboarding strategies and trying to keep an individual client approach at all times, not relying on third parties doing the work for us, because we want to be sure that the best quality is secured at all times. Also, unlike other litigation funders, we’re not paid managers who take a management fee every year, but we have the ‘funders mentality’ because together with our investors, LitFin’s partners have their own money at stake. That’s what sets us apart, and that’s why we have extra motivation to succeed on the market.

How challenging was it to educate the continental EU market on litigation funding? And what have you noticed in regard to the market's understanding and acceptance of litigation funding as the sector has evolved?

At first it was challenging indeed, because lots of clients could not imagine that such a great service with which we approached them could even exist. Not spending a cent on a court proceeding and only share when the case was successful? That must be a scam then! Nevertheless, I think that we went quite far from there, and nowadays prospective clients typically are aware of the industry and the benefits it brings to them. As litigation funding in Europe matures, besides pricing, the clients typically look into the funder’s track record, legal representation, and overall trustworthiness.

What are LitFin's plans for growth - both regionally / jurisdictionally, and also in terms of product offerings?

Most importantly, due to our rapid growth, LitFin is actively seeking an additional strategic partner to solidify its position as a leading EU litigation funder specializing in follow-on group litigations arising from competition law infringements. With that regard, we are already in discussions with several top-tier potential new business partners in the USA and locally. Our conservative target is to raise EUR 100 million within the next six to nine months to allow us to seize even more opportunities in the litigation finance space and expand our current portfolio, which already exceeds EUR 4 billion in claim value funded with a success rate over 90%.

From a regional perspective, 2024 was a breakthrough year for us in France and the Benelux region, where we successfully funded cases and strengthened our local presence. Our expansion in these markets has been driven by new colleagues from France, led by Juraj Siska, who joined us from the European Commission and who now serves at LitFin as the Director for France & Benelux. Building on this momentum, our focus for this year is on Spain and Italy, where we are already active and see strong potential for further growth.

Regarding product offerings, we remain committed to our core activities in the distressed sector in Central Europe. Beyond that, we have some exciting new products in development, which we prefer to not disclose at this stage. However, regardless of expansion plans, our top priority remains delivering bespoke, high-quality litigation funding solutions tailored to our clients’ needs.

What are LitFin's plans for growth - both regionally / jurisdictionally, and also in terms of product offerings? Last year you have established the first regulated fund (SICAV) in CEE (and one of the first in continental Europe) focused purely on the litigation funding industry. How have investors responded to the fund's launch, and do you foresee additional fund launches in the future?

The investors responded very well, even though we focused on the Czech and Slovak region only and the fundraising period was short. Primarily, we were able to successfully test an interest in this new, uncorrelated asset class and are happy that investors, both institutions and individuals, perceive litigation funding as an interesting and valued addition to their investment portfolios. Regarding the SICAV fund, we’ll be launching a new evergreen sub-fund called ‘Credit’ with a target return of 13% p.a., which will allow qualified investors to be part of our success story without time limitations on the entry.

How are the recent regulatory frameworks such as the Voss Report impacting the funding industry? Do you see industry regulation as a risk for litigation funders going forward?

As one of Europe’s leading litigation funders, LitFin obviously closely monitors regulatory developments like the Voss Report. While it has raised concerns about potential industry regulation, we believe much of the criticism within the report misrepresents the realities of litigation finance. The report suggests excessive funder control over cases and a lack of transparency, but in practice, funders do not dictate legal strategy—claimants and their legal teams remain in charge. Moreover, existing contractual safeguards and ethical obligations already ensure accountability and fairness.

From my perspective, the biggest issue with the Voss Report is that it overlooks the essential role litigation funding plays in access to justice. Many businesses and consumers would be unable to challenge well-resourced defendants without financial backing. As Omni Bridgeway’s Wieger Wielinga rightly pointed out in a recent LFJ interview, ensuring a level playing field in litigation requires financial equality between counterparties, making litigation funding essential. Creating an artificial barrier would ultimately benefit large corporations at the expense of fairness.

We do not see regulation as an existential threat to the industry. If regulation is introduced, we expect it to focus on transparency rather than prohibition, ensuring credibility while allowing the market to function effectively. Markets like the UK and Australia have thriving litigation funding sectors under clear regulatory frameworks, and we expect Europe to follow a similar path. For reputable funders like LitFin, well-structured regulation could actually be beneficial, reinforcing trust in the industry and attracting institutional investors.

Joshua Coleman-Pecha is a senior international construction, infrastructure and technology dispute specialist working in the MENA region. He advises on construction and technology projects from inception to completion. Joshua is a qualified solicitor advocate, meaning he has rights of audience in the courts of England & Wales, and is a PRINCE 2 qualified project manager.

Joshua advises on all aspects of complex dispute avoidance and resolution. He has represented several clients in billion-dollar disputes before a variety of arbitral institutions including ICC, LCIA, UNCITRAL, DIAC, and SCCA. He has experience handling disputes under the governing laws of England & Wales, the UAE, Saudi, and Qatar.

Joshua’s recent significant work includes advising in relation to oil and gas processing facilities, drilling contracts (onshore and offshore), a water desalinisation plant, a battery energy storage park, the MENA region’s largest metro system, and a major railroad and metro project in the UAE and Saudi respectively. Joshua has experience of projects across the region having handled disputes in, for example, the UAE, Oman, Qatar, Saudi Arabia, Iraq, and Turkey. His clients include international oil & gas companies, refining and petrochemical companies, EPC contractors, oil & gas service companies, EPC employers, and international technology providers. Finally, he acts in a hybrid role as general counsel to a billion dollar pharmaceutical company based in the UAE.

Joshua was recently recognized as a ‘Key Lawyer’ in Oil, Gas and Natural Resources by Legal 500 2024. He is also a member of various construction industry associations and a contributing member of the Legal Funding Journal.

I think there have been a few factors that have limited funders' interest in operating in the Saudi market, or, financing disputes that involve Saudi law and / or Saudi Courts.

First, the high-level point is that legal funding is not prohibited under Saudi law. However, until now, in Saudi and across the GCC, whilst the view has been that written laws do not prohibit legal funding, there has been a high degree of uncertainty as to how, in practice, the courts would treat parties backed by legal funders. Quite understandably, legal funders and litigants have been hesitant to be the 'test cases' on which this issue is examined. To some extent I think this hesitancy remains, though it is decreasing as GCC countries refine their laws and legal practice, and legal funders look to the growing markets across the GCC for new opportunities.

Second, for many years Sharia has been the dominant system of law in Saudi. Sharia law is a huge subject, and it is impossible to consider all the aspects of it here. However, in summary, it is a combination of several different texts and is subject to several schools of legal interpretation. As with other GCC countries, Saudi is a civil law system, and does not rely on binding precedent. It may be that legal funders have been hesitant to make investments in an environment that they don't feel they fully understand. However, in recent times, Saudi has taken significant strides towards codifying its laws. All GCC countries are on this path to a greater or lesser extent, which helps provide certainty. In addition, with better recording and proliferation of court judgments and legal knowledge across the entire market, my sense is that international investors are becoming more confident in these surroundings.

Third, all GCC countries have been signatories to the New York Convention for some time. However, recent years have seen an acceleration of arbitration across the GCC, as recognition of the jurisdiction of arbitral tribunals and willingness to enforce arbitral awards increases. In Saudi, part of the country's 'Vision 2023' is to have the leading arbitral institution in the Middle East, and be considered one of the leading arbitral institutions worldwide. Saudi has implemented a new Arbitration Law, and the Saudi Center for Commercial Arbitration (SCCA) has received significant investment, allowing it to hire globally recognised practitioners to join its senior ranks. Its rules are based on UNCITRAL rules and were updated in 2023 to reflect the most modern sets of arbitral rules globally.

Fourth, through discussion with various funders, my understanding of their view is that investing in Saudi is outside their commercial risk parameters. Factors such as uncertainty over duration of legal proceedings, lack of knowledge of Sharia, and questions over enforcement have made it difficult to determine likely ROI. Certainty over enforcement of arbitral awards in Saudi is increasing and the reasons for this are discussed below / later.

Finally, from the perspective of a funded party, and bearing in mind a lot of these parties are contractors in the construction industry, I think there is hesitancy to use legal funding as it can wipe out profit margins.

The market is huge. Focusing just on the projects sector alone, there are approximately USD 1.8trn of projects planned or underway in Saudi (USD 330bn of which are already underway), making it the largest market in the MENA region. Over the last five years, the Saudi projects sector has, on average, awarded USD 60bn of projects a year, which looks set to grow year-on-year to around USD 80bn by 2028.

It is impossible to accurately estimate the number or value of disputes emanating from these projects. Of course, arbitration is private, but also many issues or disputes will not come to light due to being settled through commercial negotiations. We do know that right now approximately 440 projects in Saudi are identified as being 'on hold' (which means there is almost certainly going to be some form of dispute arising) with a combined value of USD 231bn. As the number and value of projects approaching completion or achieving completion increases, I expect to see these figures grow.

For the reasons discussed above, legal funding has yet to proliferate in GCC countries. My experience is that, at best, many legal advisors (both in private practice and in-house) and potential litigants have limited knowledge about legal funding and are therefore sceptical of its merits. At worst, these parties may not know anything about legal funding at all, or, have a misunderstanding of what it is about and how it can help. I believe that education is needed before legal funding can be considered 'mainstream' in this region.

Where legal funding may be better known is amongst international entities (like international contractors) operating in Saudi or the wider GCC. However, even where there more understanding as regards the concept and a willingness to consider it as an option, barriers remain. For example, contractors are often put off legal funding when the cost is revealed.

Construction disputes are often fact heavy, require a significant amount of analysis before funders can begin to assess the merits, and, if they go to trial, will require lengthy investment periods. All this means that funder risk goes up, so the required returns go up, which can seriously damage contractor profits. There's little point in a contractor taking funding if it's going to wipe out the contractor's profit margin on the underlying project.

My personal view is that discussion between contractors and funders can yield a solution. On the one hand contractors may be persuaded to take funding based on a holistic view of its financial benefits. Portfolio funding may make taking funding economically palatable to contractors. However, also in my view, the greatest opportunity for striking investment deals lies in the fact that both employers and contractors tend to want to settle disputes at the earliest opportunity. If legal funders are willing to take this into account, it may shift the investment metrics sufficiently to make legal funding attractive to all parties.

The laws

Saudi has been signatory to the New York convention since 1994. However, its arbitration friendliness has increased massively in the last few years, including the creation of the previously mentioned SCCA in 2016. In addition, two key rules have been promulgated:

In 2012, Saudi passed KSA Royal Decree M/34 concerning the approval of the Law of Arbitration (KSA Arbitration Law) (together with its Implementing Rules) and in 2013, Royal Decree M/53 (Enforcement Law). The KSA Arbitration law is modelled on the UNCITRAL model law, which is regarded as international best practice.

The KSA Arbitration Law curtailed the Saudi courts' interventionist powers in relation to arbitrations seated in Saudi Arabia by recognizing for the first time the parties' autonomy to tailor their arbitration procedure in certain important respects, including by explicitly recognizing the adoption of institutional arbitration rules. The KSA Arbitration Law also addressed a key concern under the old law – the power of the Saudi courts to reopen and effectively re-litigate awards on their merits.

The Enforcement Law has led to the creation of specialized enforcement courts, whose jurisdiction supersedes that of the Board of Grievances (the court previously competent to hear requests for enforcement of arbitral awards). This in turn has started to have a salutary effect on the enforcement of foreign arbitral awards, which until 2017 was an uncertain prospect. The Enforcement Law contains provisions that affect all aspects of enforcement of judgments and arbitral awards, both domestic and foreign. In practice, the Enforcement Law has resulted in the unprecedented enforcement of several foreign arbitral awards, which is welcome development. It is hoped that the Rules supplementing the KSA Arbitration Law will help to provide more certainty around how the courts will apply the KSA Arbitration Law, including with respect to enforcement of arbitral awards.

Domestic Arbitral Awards

Domestic arbitral awards must comply with the KSA Arbitration Law. The Enforcement Courts have jurisdiction to enforce domestic arbitral awards under article 9(2) of the Enforcement Law. For a domestic arbitral award, it must be declared as enforceable by the appeal court with initial jurisdiction over the dispute. Therefore, an application is needed to the relevant appeal court for a declaration that the award is enforceable by the party seeking enforcement. The declaration is normally represented by a court stamp, after which the request for enforcement can be registered with the Enforcement Court.

Domestic arbitral awards that are enforceable include:

• monetary awards
• specific performance
• sale or delivery of tangible and intangible property

Article 55 of the KSA Arbitration Law outlines the procedural and substantive requirements of a valid arbitral award. Pursuant to this provision, the competent court must verify the following conditions to issue an order for enforcement:

• The arbitral award must not contradict other court decisions or laws on the same subject in Saudi Arabia.
• The loser has been duly notified of the arbitral award.
• The arbitral award must not violate Saudi public policy (Sharia). My understanding is that where the Saudi Courts have been confronted with an award where part of it contradicts Sharia, in some instances, they have been willing to strike out the unenforceable part and enforce the remainder.

Furthermore, the arbitral award must comply with the formality requirements of the KSA Arbitration Law and be compliant with Sharia principles. Article 49 of the KSA Arbitration Law states that an arbitral award is not subject to appeal. However, under article 50(1), a party may apply to annul an arbitral award issued on the following grounds:

• “if no arbitration agreement exists, or if such agreement is void, voidable, or terminated due to expiry of its term;
• if either party, at the time of concluding the arbitration agreement, lacks legal capacity, pursuant to the law governing his capacity;
• if either arbitration party fails to present his defence due to lack of proper notification of the appointment of an arbitrator or of the arbitration proceedings or for any other reason beyond his control;
• if the arbitration award excludes the application of any rules which the parties to arbitration agree to apply to the subject matter of the dispute;
• if the composition of the arbitration tribunal or the appointment of the arbitrators is carried out in a manner violating this Law or the agreement of the parties;
• if the arbitration award rules on matters not included in the arbitration agreement; nevertheless, if parts of the award relating to matters subject to arbitration can be separated from those not subject there to, then nullification shall apply only to parts not subject to arbitration; and
• If the arbitration tribunal fails to observe conditions required for the award in a manner affecting its substance, or if the award is based on void arbitration proceedings that affect it.”

Furthermore, under article 50(2) of the KSA Arbitration Law, the court may, on its own jurisdiction, nullify the arbitral award if:

• it violates Sharia or Saudi public policy; or
• the subject matter of the dispute was not arbitrable, e.g., not capable of being resolved by arbitration, under Saudi law.

The application for nullification of the arbitral award must be made 60 days after the nullifying party was notified of the award.

Foreign Arbitral Awards

Foreign awards must comply with the Enforcement Law as well as the New York Convention for enforcement of foreign arbitral awards. For a foreign arbitral award, a party does not need a declaration that it is enforceable from the relevant domestic appeal court. Instead, the party requesting enforcement can apply directly to the Enforcement Court, with no statute of limitations applicable.

For foreign arbitral awards to be enforceable they must meet the following criteria:

• The award must be a final award and must not contradict another judgment or court order issued on the same subject in Saudi Arabia, or contradict the public policy of Saudi Arabia.
• Reciprocity must be established between Saudi Arabia and the jurisdiction in which the award is issued. The burden on proving reciprocity is on the party requesting enforcement.
• The award must have been issued by a tribunal with jurisdiction under the relevant foreign law, and the subject matter of the aware, should not be under mandatory jurisdiction of Saudi Arabia;
• All parties must have conducted the proceedings with all procedural regularities in place, with due representation If the respondent to the proceedings was notified, but was not represented, and this can be evidenced, such an award is still enforceable.

The Enforcement Court has jurisdiction to enforce foreign arbitral awards in accordance with the requirements of the Enforcement Law:

• Saudi courts must not have jurisdiction to decide the dispute.
• The tribunal issuing the award must have had jurisdiction over the dispute.
• The arbitral proceedings were conducted in accordance with due process, e.g., the parties had fair opportunities to present their cases.
• The arbitral award is final and not subject to appeal under the law of the seat of arbitration.
• The arbitral award must not contradict other court decisions or laws on the same subject in Saudi Arabia.
• The arbitral award must not violate Saudi public policy.

The New York Convention is considered the foundation for enforcing arbitral awards in a state other than where the arbitral award was issued (i.e., foreign arbitral awards). All arbitral awards not issued under the KSA Arbitration Law are considered foreign arbitral awards. Contracting states to the New York Convention must recognise foreign arbitral awards as binding and enforce them under their rules of procedure, and without imposing “substantially more onerous conditions or higher fees or charges” for foreign arbitral awards than the State would impose on domestic arbitral awards.

Process for Enforcement of Arbitral Awards

To enforce an arbitration award the application for enforcement must include:

• “the original award or an attested copy thereof;
• a true copy of the arbitration agreement;
• an Arabic translation of the arbitration award attested by an accredited authority, if the award is not issued in Arabic; and
• a proof of the deposit of the award with the competent court, pursuant to article 44 of KSA Arbitration Law.”

Article 6 of the Enforcement Law addressing all judgments and awards, states that all judgments issued by an Enforcement Court are subject to appeal and the court of the KSA Arbitration Law appeal's judgment would then be final. However, for arbitral awards issued under the KSA Arbitration Law, article 55(3) of the KSA Arbitration Law does not allow appeal of an order to enforce an arbitral award. By contrast, an order refusing enforcement is appealable.

The enforcement procedure is as follows:

• An enforcement request is made through the Najiz application (the Ministry of Justice’s online portal) is made by the applicant.
• The request is reviewed procedurally by the Enforcement Court, and is then referred to an enforcement judge. This will require up to three days.
• If the enforcement judge is satisfied, an enforcement order will be issued (Article 34 decision), ordering one party to comply within five days of the notice.

The applicant must wait twenty days for the Enforcement Court to notify the relevant party of the Article 34 decision. If this is not done, the applicant may request for the notice to be served by publication in local press, by the Enforcement Court. Although the applicant will initially pay for the publication of the notice (three to five days are required for publication from payment), the costs are able to be reimbursed from the enforcement order.

If the Article 34 decision is not adhered to, within five days of notification, the enforcement judge may be requested to enforce sanctions against the non-complying party. Such measures, under Article 46 are issued up to ten days after the expiry of the Article 34 decision or from the date of applicant's request to issue an Article 46 decision, provided that the request is made at least five days after the Article 34 decision is notified. All decisions by an enforcement judge are final, unless they relate to certain procedures or costs.

Other Considerations on Enforcing Arbitration Awards

The public policy exception to enforcing foreign arbitral awards has traditionally been very broad. An award that contradicts Sharia law or public policy will not be enforced by the Enforcement Court. However, if the part that contradicts public policy can be separated from the rest of the award, only that part should not be enforced.

The Enforcement Law sets out that the enforcement judge cannot enforce a foreign arbitral award if it includes what is contradictory to public policy. The implementing regulations of the Enforcement Law defines "public policy" as the Islamic Sharia. Saudi Arabia Royal Decree No. 44682/1443 dated 28 August 2021 limits the definition of public policy to general rules of Islamic law based on the Quran and the Sunnah. Recently successful grounds were:

• Late payment charges were found to amount to usury.
• Compensation for holding back money was found to amount to usury.
• The award involved the sale of property which the purported seller did not own.

Public policy is not limited to procedural deficiencies. The Saudi court can, of its own volition, refuse to enforce an award that contradicts Sharia, including any of the evidence relied on by the tribunal that is not acceptable under Sharia (for example, if the tribunal relied on the testimony of a person with a mental impairment). The court could also refuse enforcement if the award itself contradicts Sharia (for example, an award of interest).

Other Enforcement Mechanisms

Saudi Arabia is also party to Riyadh Arab Agreement for Judicial Co-operation and the GCC Agreement for the Enforcement of Judgments, Rogatory, and Judicial Publication.

Until recently, to participate in the Saudi market, international firms had to enter an alliance with a local partner firm. With the change of laws in this area, several international firms have now opened their own Saudi office, and HFW (the firm I work at) is one of those. This divergence perhaps causes some difficulty for clients seeking joined-up legal advice. Naturally, high quality Saudi firms focus on work in the local courts, where they have rights of audience. International firms are more likely to focus on international clients, working with contracts under foreign laws, with arbitration as a dispute resolution mechanism. In both cases, the proliferation of work requires additional legal practitioners, and this growth potentially comes at the cost of quality legal advice or, at least, relevant experience.

Of course, it is tempting for me to say that HFW should be every funder's first call for Saudi related advice! The reality, as everyone knows, is that every dispute is different and requires different skill sets, sector knowledge, legal qualification(s), and price point. I'm sure it doesn't really need to be said, as legal funders know their jobs better than I do, but I would always suggest seeking advice from firms and individuals who have wide experience in the jurisdiction, have advised on disputes in the relevant sector in that jurisdiction previously, and understand what legal funders need and want to be able to make their investment decision.

Wieger Wielinga is responsible for Omni Bridgeway’s investment origination in (sovereign) awards and judgments globally and its litigation funding efforts both in EMEA and the UK.

Below is our LFJ Conversation with Wieger.

You have been working in the funding industry for over 25 years and are the president of ELFA. In that capacity you are at the forefront of discussion about regulating funding. Can you provide a short summary of the status of the regulatory discussion in the EU at this moment?

Perhaps the starting point here is to understand who wants regulation and why. It appears to Omni Bridgeway that a clear formulation of the perceived problems, and who would benefit from solving them, should take place before moving to the question of solutions and whether regulation is part of that.

Some of the more understandable concerns that were raised as our industry was developing and gaining spotlight over the past years concerned (i) potential conflicts of interest which could unintendedly occur if arbitrators are not aware who is funding one of the parties and perhaps to some extent (ii) the financial standing of funders and their ability to cover their financial obligations.

The issue of conflict of interest is solved by all institutions nowadays requiring disclosure of funders and the issue of financial standing has been tackled by funders associations obliging their members with respect to capital adequacy and audited accounts etcetera. See for istance https://elfassociation.eu/about/code-of-conduct.

Powerful industries like big tech, pharma, and tobacco have faced successful claims from parties who would never have succeeded without the backing of a funder.  That rebalancing of powers appears to have triggered efforts to undermine the rise of the litigation funding industry. Arguments used in the EU regulatory discussion against funding include suggestions on the origin of the capital and principal aims of the funders, often referring to funders coming from the US or “Wall Street”. It is not a proper argument but opponents know a subset of the EU constituency is sensitive to the predatory undertone it represents.

So the suggestion that Litigation Funding is a phenomenon blowing over from the US or at least outside the EU is misleading?

Indeed. What many don’t realize is that litigation funding was well established as a practice for over a decade on the European continent without any issues before UK funders started to become established. Some funders, like Germany’s Foris AG, were publicly listed, while others emerged from the insurance sector, such as Roland Prozessfinanz and later Allianz Prozessfinanz. At Omni Bridgeway, we have been funding cases since the late 1980s, often supporting European governments with subrogation claims tied to national Export Credit Agencies and since the turn of the century arbitrations and collective redress cases. So it does not come “from” the US, or Australia or the UK. It has been already an established practice since the early 90s of the last century, with reputable clients, government entites, as well as multi nationals and clients from the insurance and banking industry.

Only later, as of around 2007, we witnessed the entry of more serious capital with the entry of US and UK litigation funders. Only as of that moment, questions came about champerty and maintenance issues and in its slipstream, a call for regulation and the abovementioned narrative started being pushed.

Another related misunderstanding is the size and growth of the litigation funding industry. It is in my view often overstated. In absolute terms, it remains small compared to other high-risk asset classes like private equity or venture capital. Sure, it is a growing industry and good funders have interesting absolute returns to provide its institutional LPs whilst doing societal good, especially in the growing ESG litigation space, but one should be suspicious of parties that speak of a “hedge fund mecca” or similar incorrect exaggerations.

So what about the actual risk for frivolous or abusive litigation by or due to litigation funders?

We are in the business of making a return on our investments. Because our financing is non-recourse (unlike a loan) we only make a return if the matters we invest in are won and paid out. Whether there is a win is determined by courts and arbitrators and as such out of our hands but you will understand we put in a lot of time and effort to review matters and determine their likelihood of success. Any matter that makes it through our rigorous underwriting process is objectively worth pursuing and is unlikely to be frivolous. That does not mean all matters we invest in are sure winners, but these are matters that deserve the opportunity to be heard and very often our funding is the only way in which that is possible.

So, in response to the argument of abusive litigation I would put the argument of access to justice. It is not uncommon for legal fees in relatively straightforward commercial matters to exceed EUR 1 million, let alone the adverse cost exposure. If we want a society where the size of your bank account isn’t the only determining factor for whether you can pursue your rights, we have to accept funding as a fact of life.

A related argument that continues to be recycled by the opponents of TPLF is that funded party’s need protection against the funders pricing and /or control over the litigation. This is also a misconception, for which there is zero empirical basis. After all these years of funding in the EU, thousands of funded cases, there are no cases where a court or tribunal has indeed decided a funder acted abusively, neither in general nor in this particular respect. This is partly because the interests between funder and funded party are typically well aligned. Off course there is always a slight potential for interests starting to deviate between client and funder with the passage of time, as in all business relationships. These deviations in interest are, however, almost never unforeseeable, and typically as “what ifs” addressed in advance in the funding agreements. Both parties voluntarily enter these agreements and accept their terms. Nobody is forced to sign a funding agreement.

That may be true, but how about consumers, who may be less sophisticated users of litigation funding?

A fair question. However, there are two other realities as well: First, there is already a plethora of consumer protecting rules codified in EU directives and national legislation of member states.[1] Second, consumers tend not to be the direct, individual, clients of third-party litigation funders, as they almost always end up being represented by professional consumer organizations, who in turn have ample legal representation and protect the interest of their claimant group.

Interestingly the European Consumer Organization BEUC has just published their view on litigation funding in a report “Justice unchained | BEUC’s view on third party litigation funding for collective redress”. The summary is crystal clear: “Third party litigation funding has emerged as a solution to bridge a funding gap” and “provides substantial benefits to claimant organisations”. Also: “Assessment of TPLF needs to be evidenced by specific cases.” And “The potential risks related to TPLF for collective redress are already addressed by the Representative Action Directive.”  It concludes by saying “additional regulation of TPLF at EU level should be considered only if it is necessary.”  See https://www.beuc.eu/position-papers/justice-unchained-beucs-view-third-party-litigation-funding-collective-redress.

So what do you think will be the ultimate outcome of the regulatory discussion in the EU and will this impact the Funding market in the EU?

So, in summary, when it comes to European regulation, Europe knows that it is crucial to focus on fostering a competitive environment where innovation thrives, accountability is upheld, and access to justice is ensured. This all requires financial equality between parties, ensuring a level playing field. The EC cannot make policies on the basis of an invented reality, of created misunderstandings. That is why the mapping exercise was a wise decision. We should expect regulation, if any, will not be of a prohibitive nature and hence we do not see an adverse impact to the funding market.

In the meantime, there is this patchwork of implementations of the EU Directive on Representative Actions for the Protection of Consumer Rights. Will funders and investors be hesitant to participate in the EU?

Indeed the EC has left implementation of the directive to the member states and that leads to differences. In some jurisdictions funders will have large reservations to fund a case under the collective regime and in other jurisdictions it will be fine. This is best illustrated by comparison of the implementation in The Netherlands and the one in Germany.

The Dutch opt out regime under the WAMCA rules allows a qualified entity to pursue a litigation on behalf of a defined group of consumers with court oversight on both what is a qualified entity, its management board, the way it is funded and how the procedure is conducted.  Over 70 cases have been filed now in the WAMCA’s short history. The majority of those cases concern matters with an exclusively idealistic goal by the way. Although there is clearly an issue with duration, as it typically takes over 2 years before standing is addressed, the Dutch judiciary is really trying to facilitate and improve the process. Any initial suspicion of the litigation funders is also coming to an end now the industry has demonstrated that its capital comes from normal institutional investors, its staff from reputable law firms or institutions and IRRs sought are commensurate to the risk of non recourse funding. Once the delays are addressed with the first guiding jurisprudence, the process will probably be doing more or less what it is supposed to do. Almost all cases funded under the WAMCA have an ESG background by the way.

By contrast, Germany chose to “implement” the EU Representative action directive by adopting an opt-in system. It too is meant for qualified entities, but it is questionable whether it fulfills the purpose intended by the European Commission. The issue which makes it rather unsuitable for commercial cases is that the funder’s entitlement is capped at ten percent (sic!) of the proceeds from the class action at penalty of dismissal. Here it seems the lobby has been successful. No funder can fund a case under that regime on a non-recourse basis.

So does that mark the end of Germany as a market for funding collective actions and what does it hold for other member states?

No, in practice it means cases will not be financed under this regime. Funders will continue funding matters as they have in the past, avoiding the class action regime of 13 October 2023.  It should serve as a warning though for other member states where discussions are ongoing concerning the implementation of the representative action directive, such as Spain.  Indeed it would have been better if the EC would have given clear guidelines towards a more harmonized set of collective actions regimes throughout Europe.

[1] See, for instance, British Institute of International and Comparative Law, “Unfair Commercial practices (National        Reports)”          (November            2005),  available           at: https://www.biicl.org/files/883_national_reports_unfair_commercial_practices_new_member_states%5Bwi th_dir_table_and_new_logo%5D.pdf. See also, EY “Global Legal Commercial Terms Handbook 2020” (October 2020), available at: https://www.eylaw.be/wp-content/uploads/publications/EY-Global-Legal- Commercial-Terms-Handbook.pdf. Furter, the Belgian Code of Economic Law defines an “abusive clause” as "any term or condition in a contract between a company and a consumer which, either alone or in combination with one or more other terms or conditions, creates a manifest imbalance between the rights and obligations of the parties to the detriment of the consumer"; such clause is prohibited, null, and void (Article VI.84 Belgian Code of Economic Law). Article 36 of the Danish Contracts Act stipulates that agreement can be set aside if they are unreasonable or unfair. Article L.442-1 of the French Commercial Code (applicable to commercial contracts) prohibits significant imbalance provisions, such as a clause that results in one party being at an unfair disadvantage or disproportionately burdened as compared to the other party. Section 242 of the German Civil Code also obliges the parties to abide by the principle of good faith an