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Facilitating Cross-Border Dispute Resolution and Promoting TPF Industry Development — “International Conference on the Third-Party Funding Industry” Successfully Concluded in Beijing

By John Freund |

On the afternoon of September 25, the “International Conference on the Third-Party Funding Industry” was successfully held in Beijingi. The Conference was hosted by the Beijing International Dispute Resolution Center (BIDRC), organized by Houzhu Capital, and co-organized by Dingsong Legal Capital.

The conference received support from the Beijing Arbitration Commission/Beijing International Arbitration Center (BAC/BIAC), China International Economic and Trade Arbitration Commission (CIETAC), China Maritime Arbitration Commission (CMAC), Hong Kong International Arbitration Centre (HKIAC), Singapore International Arbitration Centre (SIAC), and the International Chamber of Commerce (ICC). Other supporting organizations included the Chinese Society of International Law, China-Asia Economic Development Association, China-Africa Business Council, Queen Mary University of London, Burford, Omni Bridgeway, Hilco IP Merchant Banking, Nivalion, Dun & Bradstreet, Caijing, and Law Plus. The Conference attracted over 300 guests in person and more than 60,000 participants online.

Huang Jin, Chairman of the Beijing International Dispute Resolution Center and President of the Chinese Society of International Law, and Yu Jianlong, Vice President of the China Council for the Promotion of International Trade (CCPIT) and Vice President of the China Chamber of International Commerce (CCOIC), delivered opening remarks. The Conference was moderated by Jiang Lili, Commissioner and Secretary-General of BAC/BIAC.

Huang Jin first warmly welcomed and sincerely thanked all participants and supporters on behalf of BIDRC. He stated that this Conference is the first international conference hosted by BIDRC, marking a significant milestone. As the operational entity of the Beijing International Commercial Arbitration Center, BIDRC plays a crucial role in supporting the establishment of the international commercial arbitration center and leading the high-quality development of arbitration in China. He emphasized the need to understand the key trends in the development of international commercial arbitration, including humanization, modernization, internationalization, localization, integration, and digitization. He also stressed the importance of improving a robust arbitration system, cultivating world-class international arbitration institutions, and creating a top-tier business environment characterized by market orientation, rule of law, and international standards. These efforts will enhance China’s foreign-related legal system and strengthen its capacity.

Yu Jianlong highlighted in his speech that, given the profound changes in the international situation and trade patterns in recent years, enhancing corporate competitiveness and strengthening corporate compliance are crucial for promoting high-level opening-up and facilitating the high-quality international expansion of Chinese enterprises. Third-party funding is an important tool for improving companies’ ability to address overseas disputes. With the accelerated pace of Chinese companies expanding abroad and the deepening integration of the domestic legal service market with international standards, third-party funding is gradually being accepted and utilized by more Chinese enterprises and legal professionals. He expressed that this conference provides an excellent platform for the industry to explore third-party funding. He hopes participants will strengthen collaboration between academia and practice, deepen their understanding of corporate needs, and continuously learn from international best practices. He also looks forward to fostering cooperation between third-party funding institutions and enterprises.

As a leading scholar in the field of third-party funding, Professor Mulheron from Queen Mary University of London was invited to deliver a keynote speech on the state of third-party funding in England and Wales. Full speech (recording and transcript) available at Houzhu Capital’s WeChat Official Account

In her address, Professor Mulheron examined the rise and evolution of third-party funding in the region, and talked about issues surrounding self-regulation and government oversight within the industry. She provided clear explanations of typical business models in third-party funding, the fee structures for funders, potential costs borne by funders, after-the-event (ATE) insurance, and protections for funded parties. She also offered in-depth insights into cutting-edge issues and perspectives within the field. Professor Mulheron concluded with five key takeaways about third-party funding in England: First, the market is very established and sophisticated, with many funders, brokers and ATE insurers in the market now; Second, third party funding features in both English litigation and arbitration;  Third, because of the criteria which funders apply to cases under their business models, only less than 10% of all cases pitched to the funders are funded; Fourth, third-party funding must comply with industry codes of conduct, which include minimum capital requirements for funders; Finally, while England possesses considerable experience in judicial practices concerning third-party funding, there have been debates and disagreements regarding the structure of funding and the validity of funding agreements, and the legislature is taking steps to address relevant issues to further support third-party funding, as it is indeed becoming a huge global market.

During Panel I, Professor Fu Yulin from Peking University Law School served as the moderator. The panelists included Zhang Haoliang, Head of the Business Development Division (International Cases Division) of the BAC/BIAC; Wei Ziping, Director of the Oversight and Coordination Office of CIETAC; Chen Bo, Deputy Secretary-General of CMAC; Yu Zijin, Consultant of HKIAC; Zhang Cunyuan, Director of the China Region of SIAC and Chief Representative of the Shanghai Representative Office; and Huang Zhijin, Director for North Asia and Shanghai Representative Office of ICC. The discussion centered on third-party funding and arbitration rules, drawing on the practices and experiences of the respective institutions. The panelists exchanged insights on recent updates to arbitration rules concerning third-party funding, disclosure requirements, measures to prevent conflicts of interest, and relevant cases processed by their organizations. The panelists concurred that third-party funding is evolving rapidly in practice, and arbitration institutions generally adopt a relatively open stance towards its use in arbitration. They also recognize the necessity for ongoing practice to fully understand the impact of third-party funding on arbitration procedures and rules, with the aim of maintaining the independence and justice of arbitration while better serving the parties.

During Panel II, the discussion was moderated by Fei Ning, Senior Consultant of Houzhu Capital. The panelists included Quentin Pak, Director at Burford; Fu Tong, Co-founder and CEO of Houzhu Capital; Michael D. Friedman, CEO of Hilco IP Merchant Banking; Lau chee chong, Senior legal counsel of Omni Bridgeway in Singapore; Falco Kreis, Senior Investment Manager and Head of the Munich Office at Nivalion; Zhang Zhi, Founder of Dingsong Legal Capital; and Zhu Zhen, Product Sales & Solutions Director of Dun Bradstreet. The panelists discussed third-party funding practices both domestically and internationally, sharing their institutions’ experiences across various jurisdictions. They explored a range of topics, including case selection processes and criteria, monetization and funding in the field of intellectual property, the interaction between arbitration rules and funding practices, and risk management for enterprises expanding into foreign markets. They noted that the client base and demand for litigation funding are becoming increasingly diversified, prompting third-party funding institutions to expand their product and service offerings. The panelists expressed optimism regarding the development of third-party funding in China while highlighting unique challenges that the Chinese market faces compared to the international landscape.

During Panel III, the discussion was moderated by Wang Jialu, Co-founder of Houzhu Capital. The panel featured Zachary Sharpe, Head of the Global Disputes Team at Jones Day’s Singapore office; Liu Xiao, Partner of Quinn Emanuel Urquhart & Sullivan, LLP; Zhong Li, Partner of Hui Zhong Law Firm; Wang Zheng, Partner of Hongqiao Zhenghan Law Firm; Li Zhiyong, General Counsel and Chief Compliance Officer of CSCEC International; and Li Lu, Chief Compliance Officer of Essence Securities Asset Management Co., Ltd. The panelists discussed the application of third-party funding, sharing common challenges and solutions they encountered in their past practices, each informed by their specific business contexts. They addressed various issues, including how to set and manage reasonable expectations regarding case progress and outcomes, effectively handle confidentiality and privilege concerns, and navigate disclosures along with related conflicts of interest. In conclusion, the panelists agreed that third-party funding plays a unique role in promoting dispute resolution and accessing justice, especially in bridging the gap between law firms and enterprises in complex cross-border litigation and arbitration.

The successful convening of this conference has established a valuable channel for ongoing communication between domestic and international practitioners and scholars in the field of third-party funding. It has enhanced understanding and awareness of third-party funding within the domestic market and facilitated positive interactions and cooperation among third-party funding institutions, dispute resolution agencies, and relevant users. This will significantly advance the further development of third-party funding in China and make an indispensable contribution to helping Chinese enterprises effectively address cross-border disputes and achieve high-quality development.

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LitFin Highlights Momentum for Booking.com Class Actions

By Harry Moran |

Class actions focusing on anti-competitive behaviour by big businesses continue to provide ample opportunities for litigation funders to support claimants in their pursuit of justice, with European jurisdictions benefitting from a strong regulatory and oversight structure that seeks to clamp down on corporations abusing their dominant market positions.

In a LinkedIn post from LitFIn, the Prague-based litigation funder provides an update on the ongoing class actions brought against online travel agency Booking.com over its alleged anti-competitive practices. The allegations relate to the company’s use of pricing parity clauses, which have harmed hotels by preventing them from offering lower prices on their own websites or other online travel platforms. 

The travel company is now facing lawsuits across a number of jurisdictions in the European Union, with ongoing investigations in Italy, Sweden and France, following in the footsteps of regulators in Spain and Czech Republic who have already issued fines. One class action, brought by German hotels seeking compensation, has already begun proceedings in the Rechtbank Amsterdam.

Juraj Siska, partner at LitFin, provided the following statement: “The recent decision by Spain’s Competition Authority to fine Booking.com €413.2 million is a significant step forward in the fight against anti-competitive practices. Booking.com’s actions have affected market players across the EU, not only in Spain. Now is the time to end these practices and ensure compensation for damages already incurred.”

Concluding the post, LitFin emphasised their active involvement to support claimants seeking compensation in the Booking.com class actions, and encouraged any potentially affected parties to contact them.

Maturation of the Litigation Funding Industry Brings New Opportunities and Challenges

By Harry Moran |

As we enter the final months of 2024, it is only natural for industry commentators and analysts to lay out their observations on the state of litigation finance, seeking to understand how third-party funding has evolved this year.

A column in Bloomberg Law, written by former lawyer turned writer David Lat, examines the current state of the litigation funding industry and examines the changing face of the market, from its growing successes to the evolution of issues it faces. The column draws upon Lat’s time at the LitFinCon event hosted in September of this year, featuring insights from industry leaders who spoke at the conference.

One of Lat’s primary observations is the transformation of litigation funding from a fringe activity in the legal sector, to a mainstream stable that has transformed the way claimants and law firms pursue disputes. Lat highlights this change in attitudes within law firms, quoting Casey Grabenstein of Saul Ewing, who noted that his firm was somewhat reluctant to embrace litigation funding”, whilst Mayer Brown’s Michael Lackey emphasized that third-party funding “was just anathema”, a decade ago. Nowadays, these attitudes have largely been reversed, with Lackey himself noting that in today’s legal landscape “virtually every large law firm that does litigation probably has a funded case somewhere.”

Speaking to one of the prominent topics discussed at LitFinCon, Lat explains that with the startling growth experienced by the litigation finance market, the issue of the ‘commoditization’ of funding continues to be raised. Across the speakers at the event, Lat highlights that the general view of funders and other parties is that the industry has moved towards maturation rather than commoditization, with a lack of standardization across funding arrangements being absent across the industry. Looking to the future of third-party funding, Lat says that industry leaders continue to take a cautiously optimistic view, and quotes Mani Walia of Siltstone Capital who said, “ours is a young industry, and we need to make sure that there are no bad apples.”

In the spirit of this cautious attitude towards ‘bad apples’ and the potential for issues to arise, Lat also addresses the ways in which opposition to and criticism of the funding industry has changed with its maturation. Lat describes this transformation as being a move away from issues of legality to issues of disclosure, highlighting the ongoing debates among lawmakers and the judiciary as to what level of mandatory disclosure should be required for funding arrangements.

Department of Justice Files Statement of Interest on $16 Billion YPF Award

By Harry Moran |

The ongoing saga of the $16.1 billion award in the case brought by investors of the YPF oil and gas company, and funded by Burford Capital, has remained one of the most high profile instances of litigation funding in history. Whilst the Argentine government continues to appeal the award, the U.S. government has now formally offered its own opinion on one of the legal issues at stake in the dispute.

An article by Reuters covers the latest development in the Argentina YPF case, as the U.S. Department of Justice submitted a statement of interest arguing against the seizure of Argentina’s shares in the oil and gas company, as part of the enforcement of the $16 billion judgment. The letter, sent to U.S. District Judge Loretta Preska in Manhattan, appeared to disagree with Burford Capital’s position that there was a commercial activity exception to the Foreign Sovereign immunities Act, and that the law was not intended to disregard immunity for foreign sovereign property. This argument seemed to reflect the DOJ’s position that carving out such an exception to immunity would create a parallel risk for U.S. property in foreign jurisdictions.

In response to media reporting on this latest development, Burford Capital issued a statement that argued the DOJ’s letter only addressed “a narrow question of law in relation to the enforcement of judgements.” Furthermore, Burford argued that the filing “does not reflect DOJ’s taking any broader position on the overall case of the enforcement campaign.” The press release from Burford Capital can be read in full below:

“Burford Capital Limited, the leading global finance and asset management firm focused on law, has noted inaccurate media reporting and subsequent market reaction to an expected court filing last night by the U.S. Department of Justice ("DOJ") in the Petersen and Eton Park matters. The filing in the U.S. District Court for the Southern District of New York restates DOJ's position on a narrow question of law in relation to enforcement of judgments. The filing pertains to one motion filed in the Petersen and Eton Park matters as part of the overall, ongoing effort to enforce the judgment against the Argentine Republic. The filing does not reflect DOJ's taking any broader position on the overall case or the enforcement campaign; indeed, DOJ has previously taken the position that pursuing Argentina in the US courts for its breach of contract in this matter was appropriate, and DOJ has not made any filing at all on the pending appeal (and the time to do so has passed). In its filing, DOJ took the view that Argentina could not be required by a U.S. court to move property presently located in Argentina into the United States so it could there be attached for creditors under New York law, which is an unsettled legal issue. The DOJ view is not binding on the court and further briefing and proceedings will ensue. The Company will provide a further update on the Petersen and Eton Park matters during today's earnings call.”