INTERNATIONAL ARBITRATION 1/3LY
We would encourage all claimants in arbitration to be transparent and upfront about our funding at a very early stage. If we are involved in a case pre-arbitrator selection, we would ensure that the funded party bears that inmind in their arbitrator selection for the panel. KE I TH Howabout the debate around security for costs orders in the arbitrationworld. Do you have any comments? ROSEMARY There have been a number of high profile arbitration decisions which have set tongues wagging, andwhich have generated academic debate. We have an After The Event (ATE) insurance portfolio policywhichwe can automatically provide as part of our terms in litigation or arbitration to cover a potential adverse costs risk. If we think there is a risk fromadverse costs in arbitration, as part of our funding terms we will insist on the funded party having ATE insurance in place, whichwe can provide at a fully deferred premium rate. The debate in the arbitrationworld at the moment is whether, if it is disclosed that a funder is funding a case, there should automatically be a security for costs order made. We don’t think that is right. We don’t see the basis for that argument.
However, as part of our ATE policy, we can provide a security for costs indemnity for claimants to cover any security for costs application that ismade against themand, as such, it is not something to be particularlyworried about. If anything, the fact that a funder is sitting there with an ATE policy should militate against a security for costs application being granted. People want it to be a big issue for us but it simply isn’t. Is it something that we have seen personally? No. Is it something that we are concerned about on a day to day case funding basis? No. But it is something that we need to have at the back of our mind because respondents (and I don’t blame them for this) will use it as an arbitration tactic. KE I TH Do you usually get approached to fund cases pre-litigation and pre-arbitration, or further down the line? ROSEMARY We aremost commonly approached at the start of a dispute when the lawyers have done an initial review of the claim, decided liability is good and the claimant wants to press go but is thinking about costs. However, we also fund claims that aremore developed, any time up to trial or, indeed, through enforcement. The benefit for us in funding at a later stage in the dispute is that the case ismore developedmaking it easier for us tomake a genuine assessment as tomerits and prospects of success and, commercially, we have to invest less, for shorter time period of time.
A S PART OF OUR AT E POL I CY, WE C AN PROV IDE A SECURI T Y FOR COS T S INDEMNI T Y FOR CL A IMANT S TO COVER ANY SECURI T Y FOR COS T S APPL I C AT ION THAT I S MADE AGA INS T THEM.
Made with FlippingBook - Online Brochure Maker