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An LFJ Conversation with Wieger Wielinga, Managing Director of Enforcement and EMEA, Omni Bridgeway

By John Freund |

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

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John Freund

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LFJ Conversation

An LFJ Conversation with Obaid Saeed Bin Mes’har, Managing Director of WinJustice

WinJustice is the first litigation funding firm in the UAE, empowering businesses and individuals to access justice without financial strain. The UAE’s unique legal landscape, divided into onshore and offshore jurisdictions, offers a dynamic environment for litigation funding. As a trailblazer in this space, WinJustice is committed to making justice accessible and affordable for all. Below is our LFJ Conversation with Obaid Saeed Bin Mes'har: 1. The UAE has been expanding its legal landscape in recent years. How has the growth of the legal industry in the UAE impacted the demand for litigation funding?

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.
Escalating Legal Costs:
    • 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.
Regulatory Support & Market Maturity:
    • 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.
Greater Awareness & Adoption:

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:  

Preference for Arbitration & Mediation:
    • 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.
Sharia Compliance & Islamic Finance:
    • 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.
Confidentiality & Reputation Sensitivity:
    • 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.
Regulatory Variations Between Onshore & Offshore Jurisdictions:
    • 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.
Government & Public Sector Sensitivities:
    • 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.

3. What are the chief concerns that litigation funders have when it comes to investment in the UAE, and how would you allay those concerns?

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: 

Regulatory Uncertainty:
      • 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.
Enforcement Challenges:
      • 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.
Case Viability and Recovery Potential:
      • 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.
Judicial Discretion and Precedents:

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:

Leverage Offshore Jurisdictions:
    • Encouraging claimants to litigate within DIFC or ADGM courts can provide a more predictable legal framework with explicit third-party funding regulations.
Comprehensive Due Diligence:
    • Litigation funders should conduct thorough case assessments, including analyzing asset recovery potential before committing to funding.
Enforcement Planning:
    • 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.
Risk-Sharing Mechanisms:
    • 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.

4. How do you manage duration and collectability risk? Are these more acute in the UAE than in other jurisdictions, and if so, how impactful are these to your underwriting criteria?

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:

Duration Risk:
      • 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.
Collectability Risk:
      • 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:

      • 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:

      • 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:
      • 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:
      • 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.

5. How do you envision the future of litigation funding in the Middle East over the next 5-10 years, and what key trends or developments do you believe will shape this future?

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

Regulatory Evolution:
      • 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.
Increased Market Adoption:
      • 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.
Technology & AI in Case Evaluation:
      • 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.
Expansion of Alternative Dispute Resolution (ADR):
      • 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.

Entry of Global Players & Institutional Investors:
      • 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.

LFJ Conversation

An LFJ Conversation with Ondrej Tylecek, Partner and Head of Investments, LitFin

By John Freund and 4 others |

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.

LFJ Conversation

An LFJ Conversation with Philippa Wilkinson, Associate Director, S-RM

By John Freund |
Philippa Wilkinson is an Associate Director on S-RM’s Disputes & Investigations team, which is dedicated to providing investigative support to parties to contentious situations. She has experience managing asset tracing investigations, as well as litigation and arbitration support engagements, associated with complex corporate disputes. While her practice is global, Philippa specialises in matters involving Middle Eastern parties, having spent several years in the Middle East, living and working in Tunisia and the UAE. She previously worked as a journalist covering finance and infrastructure in the GCC and wider Middle East, and subsequently covering European infrastructure funds. Philippa has an MA in Near and Middle Eastern Studies from the School of African and Oriental Studies, and a BA in Modern Languages from Durham University. She is a fluent Arabic, Spanish and French speaker. Below is our LFJ Conversation with Philippa Wilkinson. What are the most significant obstacles encountered during asset recovery processes, particularly in cross-border cases? The biggest obstacle is usually the cost of recovery. If the prospect of recovery looks weak or complex at first glance, perhaps because key assets are located in jurisdictions which are not enforcement-friendly, or are held through offshore structures, often the matter is shelved because the client or litigation funder decides it is not a good use of funds. But carrying out some light touch asset tracing at this stage can give the decision-makers confidence that a judgment or award can be monetised, and encourage them to move forward with enforcement or make a funding decision. This can also help funders get comfortable on duration risk, if there are assets which are ‘low-hanging fruit’ and the team can map out a clear path to enforcement. An investigator with asset tracing expertise can provide the information the legal team needs to develop a viable, costed strategy for enforcement and recovery, either by identifying specific assets to target, understanding how and where assets are owned, or instead identifying pressure points and vulnerabilities which will be useful in settlement negotiations. S-RM is acutely aware of the client’s legal strategy. We focus our investigations on the jurisdictions where enforcement is going to be feasible, efficient and cost effective, understanding early that are no attractive assets in a certain jurisdiction, so the whole team can rework their strategy and redirect resources to more viable leads to attachable assets elsewhere. Judgment debtors often decide to dissipate their assets to avoid paying judgments or awards. Pre-action asset tracing and ongoing monitoring gives you a baseline against which to track and document asset dissipation, such as the transfer of valuable assets to proxies (who could be family members or trusted employees), the creation of offshore trusts, and other asset protection structures. If you have carried out a thorough investigation into the asset dissipation and can prove that it is likely to take or has in fact taken place, you can seek worldwide freezing orders in common law jurisdictions such as England, Hong Kong and Singapore to prevent further dissipation, and allowing enforcement against proxies. Often compiling this evidence can be challenging, and this is why you need experts, whether it is obtaining hard-to-locate records in far flung places, using source intelligence to understand the adverse party’s financial position, or developing intelligence on assets. For example, as part of an asset trace in support of a freezing order application, we were told by sources that the adverse party, a shipping company, was using nominees to set up front companies to continue operating ships despite claiming it had no assets to satisfy the award. Following up on this intelligence, we were able to obtain the incorporation documents from the Marshall Islands corporate register and transcripts from the Liberian shipping register, which, on analysis, we found contained a correspondence address linked to the adverse party. These documents supported one part of the legal team’s freezing order application.  Can you discuss how effective asset tracing can reveal hidden value within a portfolio of claims? A portfolio of distressed debt often sits on the balance sheet of a bank, a fund or other entity, and sometimes they are reluctant either to write it off completely, or to invest in recovery. Asset tracing can triage which of the debts might be recoverable, and allow that recovery effort to move forward by making it more attractive for a funder to either finance or acquire. S-RM takes a commercial approach to triaging non-performing loans, focusing on identifying the viable opportunities for recovery. Based on this we can support analysis of how valuable the portfolio might be in the hands of a proactive legal and investigative team. We recently triaged a portfolio of bad commercial debts in the UAE over which the principals of failed companies had provided personal guarantees. When they couldn’t service the debt, they fled the country. We were able to quickly focus on the guarantors who had connections to jurisdictions such as the UK and the US, and owned valuable residential real estate there. Based on our extensive experience of supporting asset recovery, we then classified the debts which made up the portfolio by attractiveness for enforcement, which supported a commercial analysis of the likely return on investment. Following on from this high-level ‘triage’ asset tracing , S-RM supports more in-depth asset tracing efforts once our clients reach the enforcement stage, to ensure that the recovery is maximised by identifying assets and understanding and documenting ownership. S-RM has for many years supported the National Asset Management Agency (‘NAMA’), created by the Irish government in the wake of the 2008 real estate crisis to consolidate bad debt, with asset tracing across Europe to support and inform their negotiations with debtors and recovery efforts. Having successfully recovered nearly EUR 48 billion, NAMA is due to wind up its operations by the end of the year. We are also on the investigations panel for Ukraine’s Deposit Guarantee Fund, which has a mandate to recover funds from its portfolio of distressed assets originating from failures of Ukrainian banks. How have advancements in technology, such as blockchain analysis and digital forensics, transformed asset tracing methodologies? The biggest shift in my opinion is the increasing availability and searchability of data. Some of that is open source or public data – available on the deep or dark web or via data analysis platforms – and with the help of AI search tools we can sift and interrogate that data. In some cases that might be as straightforward as identifying leaked contact details that then lead us on to social media activity that can be a rich source of leads and contextual information about assets. We can also synthesise that data using graphing tools to map out very clearly the web presence and social media interactions of a company or individual, and surface new leads. This can be very helpful in a challenging asset trace where your subject maintains a low profile, or has learned to be discreet about their assets, whereas their associates or family members might not be so cautious. In some instances, we have been lucky enough to find and download leaked documents published by anti-corruption activists and circulated on the web. We then process them in a safe environment so any malware in the data is contained, and then making them machine searchable and translatable using AI tools. Then we are able to map corporate structures that are deliberately obscured and understand how assets are truly controlled. In one recent sovereign asset trace, this type of leaked data showed that government officials were closely involved in the day-to-day management of a state-owned energy firm, directing managers to sign certain politically important contracts in other countries, supporting our client’s argument that the state-owned entity was an alter-ego of the state. In the crypto sector, blockchain explorers play a similar role, to help you navigate and analyse the enormous amount of public data generated by cryptocurrency transactions on the blockchain. When you are working with the victims of crypto frauds and scams, this is vital to understanding the money laundering activity of the threat actors, and getting the recovery process underway. The essential input for this type of work is a wallet ID or transaction hash as a starting point (for example the victim’s original transfer) – without this there is no way to start mapping the transactions. Any investigations firm claiming to be able to identify wallet IDs without such a starting point should be challenged on their methodologies. When we have access to corporate systems, cloud accounts or devices for our investigation, for example thanks to insolvency practitioners, or court orders mandating a search of some devices, the asset recovery team draws on its skilled digital forensics investigators. As part of digital forensic investigations we can recover and analyse a wide range of digital artifacts to guide our research, and also extract large datasets for analysis. Again, with the support of AI tools that allow you to machine read and translate a huge range of documents, and help identify key documents for analysis, we can do this in a much more efficient and targeted way. What legal and regulatory challenges do practitioners face in asset recovery, and how can they be navigated effectively? From the perspective of a corporate intelligence firm, we work closely with legal teams to understand where there are obstacles in a particular jurisdiction and where is attractive for enforcement, adapting our investigation accordingly. We are also very mindful of local laws and regulations regarding how we can work, including privacy laws, regulations on surveillance, and freedom of information laws. In the US, S-RM’s team includes licensed private investigators in New York and Washington DC, and we make sure that we stay in line with regulations on our industry – the lawyers we work with need to feel confident about using our information in court. The direct challenges we face in asset tracing research often relate to shifting laws and regulations around transparency and privacy. For example, in 2021 US Congress passed the Corporate Transparency Act creating a beneficial ownership registry for US legal entities, which we initially hoped might include public access, as such registers are incredibly useful resources for asset tracing, providing documentary evidence of the beneficial ownership of assets. The implementation of the registry is currently on hold while the Supreme Court decides several cases, and there are currently no plans to allow private sector investigators to access the data. Similarly in 2018 the British Virgin Islands and Cayman Islands were forced to prepare to introduce publicly accessible registers of the beneficial ownership of companies. However, since the November 2023 European Court of Justice ruling that public access to such registers infringes privacy rights, the future of access to these registers has been in question. The UK is also planning a new Foreign Influence Registration Scheme (similar to the Foreign Agent Registration Act in the US, which can be a useful source of data around foreign states’ international commercial and lobbying activities, and how funds are channelled) which was intended to come into force in 2024 under the 2023 National Security Act. This can be helpful for developing in-depth analysis on the extent to which a state-owned entity is an alter ego of the state, by considering its participation in coordinated lobbying efforts. This has been delayed indefinitely and we are still waiting to be able to access the data. We are always monitoring for new resources and changes to the way information is accessible, to make sure we are making the most of transparency and anti-corruption laws. Why is a multidisciplinary approach crucial in asset recovery, and how does S-RM integrate various expertise areas in its investigations? At S-RM, we feel we work best when we are an integral part of the asset recovery team, in regular contact with our clients about strategy and working closely with other advisors. That allows us to target our research efforts most effectively and make sure that everything we do is supporting and advancing that strategy. There is nothing worse than investing a lot of time and hard work into following a lead on an asset, only to find that the client was already aware of it or has discounted it for strategic reasons. This can also include working with forensic accountants or insolvency practitioners who have access to internal documents of an insolvent company, and where we can support their work by investigating the recipients of funds and their connections to the company’s principals, or feed in questions for interviews with company officers. In addition, we regularly work with public relations teams, both defensively (to identify and mitigate vulnerabilities that could be exposed by the opposing party), and proactively, to provide intelligence on vulnerabilities that a skilled PR team can build a media strategy to exploit. In that scenario we are looking for pressure points that could bring the opposing party to the table for serious settlement negotiations. This can be particularly effective when an adversary is at an important inflection point with regards to attracting investment, for example states trying to attract foreign direct investment, a company planning an IPO, or a businessperson setting up a new venture or seeking advancement in their career. In all these scenarios, they will want to avoid ‘dirty laundry’ such as corruption or financial mismanagement coming to the surface at a moment when they most need to present their best image to others. We were recently carrying out an asset trace into a US businessman relating to a decade-old debt he was still refusing to settle, and found that he was developing a business partnership with investors in a new European market. This gave us an excellent opportunity to negotiate a settlement, as when the new partners were made aware of this historic dispute they were discouraged from investing. Again, the ideal dynamic when we work with other advisors is regular, open communication, so that the broader team pull together to focus on the most productive approach and make sure S-RM is providing actionable intelligence throughout. Finally, we have a network of surveillance specialists who have law enforcement or intelligence backgrounds, and can be incredibly important in asset investigations. To make the most of such a resource-intensive approach, surveillance needs to be targeted and timed with a specific outcome in mind, rather than open-ended. In the right circumstances, discreet surveillance can be vital to locate an individual to serve a freezing order, or understand the lifestyle and residence of a debtor without tipping them off. Often we need to set up surveillance at very short notice when we learn of upcoming travel or a court hearing, and having trusted, experienced individuals on the ground already is critical.