INTERNATIONAL ARBITRATION 1/3LY
IN CONVERSATION WITH ROSEMARY IOANNOU 31
KE I TH This is verymuch a developing area for the future. It would be interesting to see how the industry brings about regulation. ROSEMARY It’s becoming a crowdedmarket place and a lot of new entrants could never meet the criteria of ALF. If formal regulation came into play I think the number of funders in the industrywould diminish. You have to ask whether that’s a good thing or a bad thing for the industry generally. It’s good for us, because inevitably there will be less competition. F UND ING D I F F EREN T T Y P E S OF C A SE S : HOW DOE S T HE PROCE S S D I F F ER? KE I TH In a nutshell, what is Vannin’s approach to funding different types of disputes? ROSEMARY Between commercial arbitration and litigation, our approach is similar provided that the dispute per se, the claim, ismeritorious andmeets the investment criteria around the points I previouslymentioned. However, within arbitration, there are different points that we need to consider on a broad brush and on a case by case basis, depending on if the dispute is commercial or an investment treaty arbitration. We are seeing a huge development in funding of investment treaty arbitration throughout the globe. KE I TH Interesting point. What are the differences between commercial and investment treaty arbitration froma funding perspective? ROSEMARY In an investment treaty context, there are additional factors that you need to think about which distinguish it fromcommercial arbitration or litigation. We need to consider all the elements you think about when you are bringing a claimagainst a state. For example, which forum is being used? Is it UNCITRAL? Is it an ICSID forum?What is the jurisdiction? As your readershipwill know, jurisdiction is always a key initial hurdle that you need to overcome in the investment treaty context.
We can progress that due diligence and get an idea as to terms quickly, which is very important for clients when they are trying to get their claimoff the ground andwaiting for the funding to be in place.
T HE F U T URE OF T P F : I S INDEP ENDEN T REGUL AT I ON NEEDED?
KE I TH Vannin is one of the fundingmembers of the Association of Litigation Funders (ALF), which is a self-regulatory body for the industry in the UK. I’ve read commentators suggesting that it’s about time that there was independent regulation of funding. I just wonderedwhat your views are on that and Vannin’s participation in the ALF. ROSEMARY ALF is an important umbrella organisation, giving claimants and their lawyers re-assurance that if they are working with an ALFmember they are working with a reputable organisation. Members have to complywith rigorous requirements regarding confidentiality, capitalisation and conflicts; to name a few. The complaints procedure that ALF has, has never been used by any claimant. I think that shows the professional nature of the funders that aremembers of ALF. As an organisationwe have no objection per se to external regulation of the industry. Professional funders have nothing to hide; we are not hiding in the shadows as some like tomake out. The only difficultywith regulation is that the purpose of funding is to facilitate litigation and arbitration and to help it on its way. We risk regulation blocking growth, either because it means the structures in place are so strict that no funder can complywith them, or because defendants use regulation as ameans to bring unnecessary and illegitimate interlocutory applications while the case lawaround the regulation is established. We think that self-regulation in the funding industryworks. We’re not scared of formal regulationwithin the right parameters and bounds but it is something that needs to be thought about very carefully.
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