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