International arbitration falls into two categories, and for one of them—investment arbitration—2018 was the busiest year ever.
The International Centre for Settlement of Investment Disputes, part of the World Bank, handles disputes between foreign investors and host states. It found that more investor arbitrations were registered in the previous calendar year than any other, continuing a growth trend dating to the late 1990s.
Part of that trend can be explained simply by the existence of greater foreign investment. But some credit should also go to the rise of third-party financing for these battles, some of which could likely not move forward without outside help.
“You have a dynamic where you have a claimant who’s been injured by a respondent, and more often than not they’re in a very precarious financial position because of the respondent’s conduct,” said Zachary Krug, senior investment officer at Woodsford Litigation Funding, who called these disputes a “David and Goliath” situation.
Take the example of an investor in a foreign jurisdiction who has just one asset.
“If that is literally expropriated, they have no capital to pursue arbitration,” said Noiana Marigo, the head of Freshfields Bruckhaus Deringer’s U.S. arbitration practice. “Third-party finance is their only avenue to achieve justice.”
That’s what happened when Canadian mining company Crystallex lost a gold mine project it had launched in Venezuela. With backing from Tenor Capital Management, the company had the resources to take the dispute before an ICSID panel and then fight to collect much of a $1.4 billion award.
The need for outside support is intensified because these processes can be long and exceedingly complex, drawing on the expertise of attorneys who are, “for lack of a better word, eye-wateringly expensive,” added Krug, who worked as a litigator for Quinn Emanuel Urquhart & Sullivan before joining Woodsford.
Add these factors together and the demand side of the equation makes sense. On the supply side, third-party financers are eager to invest in these cases because they often lead to large awards, which also happen to be collectible.
“States will eventually pay, because of the reputational harm that will happen to a state on an international market if they don’t,” Krug said.
Then there’s the fact that even if they’re lengthy, investor-state arbitrations usually proceed with fixed rules that set down a date for a hearing and for when a tribunal must hand down an award.
“There’s a greater level of predictability, and predictability is what investors like,” said Daniel Gonzalez, a partner at Hogan Lovells.
That is not to say that litigation funders are uninterested in the other category within international arbitration: commercial disputes. Dana MacGrath focused on both forms as a partner at Sidley Austin before she joined litigation funder Bentham IMF to guide its arbitration investments last month.
“I think it’s been more visible that the funders have been involved in investment arbitration, in part because of the nature of investment arbitration,” she said. “There’s much more transparency.”
One factor is the larger number of institutions that conduct commercial arbitration, all of which use differing methodologies for compiling and publishing statistics.
The future might present even more opportunities in the commercial arbitration sphere, simply because there are more of those cases in play. That record-setting investment arbitration figure from ICSID in 2018 referred to only 58 new cases.
“There are a few dozen claims that are brought each year against states. It’s a dynamic that is familiar, so that market is relatively mature,” Krug said.
Meanwhile, thanks to the dynamics of globalization, there’s a growing pool of cases in commercial arbitration. And there are more jurisdictions where litigation funding is permissible: Prohibitions against outside funding have been relaxed or eliminated in the major destinations of Hong Kong and Singapore. Third-party funders have responded by setting up offices in both cities.
“As more lawyers and more claimants become more comfortable with the dynamics of funding, you’ll see more of it,” Krug added.
That’s especially true in the types of cases that place serious financial demands on parties, one example being construction disputes, with their heavy reliance on expert witnesses.
The still-novel nature of the nexus between international arbitration and litigation finance also means that certain questions are unresolved. One is how open parties in arbitration must be about their use of third-party funders. While formal requirements vary across jurisdictions, the trend is toward growing transparency.
“It is increasingly common for parties in investor-state arbitrations to disclose if they have funding and the identity of the funder early in the case,” MacGrath said in an email. “I also have observed increased disclosure of the use of funding and the identity of the funder in private commercial arbitrations.”
Krug noted that the fear of related litigation aimed at getting disclosures from funders, employing arguments that privilege was waived, was one reason to keep quiet, even if courts have uniformly ruled that these communications are protected.
“There are legitimate reasons why a corporation or claimant wouldn’t want to disclose the use of funding. Our view is that we are generally agnostic about the issue,” he said. “To the extent it makes sense to the claimant, we are generally in favor, as long as there’s an understanding that it’s not going to lead to ancillary litigation.”
There can be strategic value in being open about outside involvement, especially as parties are increasingly aware that outside investors are engaging in serious due diligence before choosing to deploy their finite resources.
“When the involvement of a funder is disclosed, it really telegraphs a strong signal to the respondent and the tribunal that an independent funder has a belief in the claims, to the point it is willing to put its capital at risk,” Krug said. “Also, understanding that the claimant has the resources to go the full mile goes a long way to help bring the parties towards settlement.”
Transparency also helps ensure that there are no conflicts between the parties to an arbitration and the members of a tribunal, often practitioners who have represented claimants who have relied on outside funders.
“The last thing we want is to fund a case, get a successful award, and at a later stage, when you try to enforce it, have questions about the panel and potential conflicts,” Krug said.
Also unresolved is whether outside funders will be committed to international arbitration in the long term. In the past, they often turned elsewhere to conduct due diligence for investments, but the hires of names like Krug and MacGrath show a commitment to taking it in-house.
“In the past, they had law firms doing it, but because they’ve seen it’s a good model, they’re hiring their own help to do it,” Marigo said. “It’s a good alternative for lawyers who don’t want to continue working in big law firms.”
That might change in several years after the results of some of these investments become clear.
“At the moment, there seems to be a rush to get into the sector and I’m not sure everyone will be successful,” she added.