40 MARKET COMMENTARY
INTERNATIONAL ARBITRATION 1/3LY
ENT ER THIRD - PART Y FUNDING
HOW IS IT WORKING IN THE L ATIN AMERIC AN MARKET? Third-party funding ismore common in the UK and the US however, it is fairly common in Latin American countries. In Brazil, third-party funding is still newand only few funds currently operate. Lex Finance, a Peruvian fund currently operating in Brazil has reported a 50% increase in the number of requests fromBrazilian parties and their legal counsels. It envisages having USD 400million invested in Brazil within the next three years. Similarly, other funds based in the UK have indicated a noticeable increase in requests fromBrazil. Lex Finance only finances arbitration proceedings and it has a three level procedure: • an internal due diligence As a general rule, the Funded Party is not required to provide any guarantees to the Funder. The Funder does not interfere with the claim, as the independence of the parties and arbitrators shall not be comprised. The Funded Partymay be required to provide updates on the status of the proceedings so the Funder maymonitor its investment. REGUL ATION / LIMITATION IN BRAZIL In Brazil, court litigation proceedings are subsidised by the government, the court fees are capped and, if parties evidence they lack funds, they are exempted frombearing the costs of the proceedings and fees to the prevailing party (so called “sucumbência”). It is also common practice in Brazil for attorneys to enter into success contracts with their clients in exchange for a percentage of the value awarded in the court judgment. Brazilian legislation also permits a party to assign credits and contractual positions. On this basis, it is possible to say that there is no prohibition for third-party funding practices under Brazilian law. Funds currently operating in Brazil and those targeting Brazil have not reported any regulatory issues. The rise of third-party funding, however, may lead to the necessity to issue regulation in thismatter; or to amend the existing rules. A similar situation took place in the UK, where the lack of regulation caused themajor funds to create the Association of Litigation Funders of England andWales (the “ALF”). The ALF sets out a framework for the third-party funding activity, as well a Code of Conduct to itsmembers. • an external due diligence performed by independent law firms; and • the approval of the Funding Agreement by an Investment board.
POINTS FOR C AREFUL CONSIDERATION There are a number of questions currently surrounding third-party funding, its workability, interference and compliance with the arbitration rules and principles, as the examples set out below: • Arbitrators’ duty to disclose The NewBrazilian Arbitration Act in force since July 2015, Article 14, paragraph 1, provides for the arbitrator’s duty to disclose, before accepting the appointment, any fact pertaining his/hers impartiality and independence. This raises the issue whether the Funded Party has the duty to disclose a Funding Agreement to the Tribunal and/or the other party. A relationship between the arbitrator and the Funder may compromise the arbitrator’s independency and impartiality. Themain Brazilian arbitration centres have indicated concerns in relation to this point and there may soon be further Arbitration Rules issued regarding this point. • Autonomy of the parties Scholars have shown concerns over the Funder’s interference in the proceedings, as it may limit the Funded Party in settling the proceedings, appointing arbitrators and legal counsels. Conversely, these rights are discretionary and, therefore, one can say that there is no prohibition under Brazilian law. • Security for costs and recovery of arbitration costs Some scholars believe that the Funder merely provides a tool allowing a party to pursue its rights and, therefore, the Tribunal cannot issue orders against it. Albeit, others have the view that if the Funder makes the dispute feasible, the Funder may also be liable for the recovery of costs in the event the Funded Party loses the claim. In this sense, some funds require the parties to have ATE insurance. The lack of regulation also raises other questions, as amatter of principle, for instance, the economic balance between the parties; due legal process; the increase of frivolous claims and nature of the funding agreement and confidentiality. Above all, the freedomof the parties to contract and agree over a [potential] credit is a fundamental principle; and third-party funding emerges as an additional solution and a tool to provide parties with the access of justice for those lacking in funds and an alternative to the parties that prefer to allocate their financial resources elsewhere and preferring tomanage the risk of pursuing a claim.
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