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ICCA国际仲裁第三方资助(TPF)报告:第2章 争议资助概述(2)

更新时间:2018-08-09 13:39:30  临时仲裁-张振安 编辑:lianluobu  点击次数:2442次

Chapter 2* Overview of Dispute Funding(2)

第2章 争议资助概述(2)


II. Other Dispute Funding Models 其他争议资助模式

Although third-party funding has only relatively recently emerged as a distinct industry, it should be viewed in context as one of a number of the alternative ways of financing arbitrations. This Section provides some examples of the other models that exist.

虽然第三方资助在较近期才成为一个独特的产业,但它应被视为仲裁融资的一种可选方式。 本节提供了一些其他资助模式的示例。

A. Insurance保险

Insurance is one of the oldest alternative sources of funding for disputes.[1] Liability insurance generally involves funding the “legal representation in any action to defend against liability or recover damages, or to pay any award, order, or judgment against the insured, or both”.[2]

保险是争议资助最早的替代来源之一。责任保险通常包括“为提出责任抗辩或要求索赔损失的任何诉讼中的法律代理行为提供资助,或支付对被保险人不利的裁决、命令或判决,或两者兼而有之”。

There are also specialized forms of legal expenses insurance, sometimes referred to as “before-the-event” (BTE) and “after-the-event” (ATE) insurance. Both forms of insurance are specifically intended to cover the insured’s liability for legal fees and costs incurred in relation to litigation or arbitration. Depending on the structure, coverage may be provided for the insured’s own legal fees and costs and/or the insured’s potential liability for the opponent’s legal fees and costs if the claim is unsuccessful.[3] 

还有专门的法律费用保险形式,有时被称为“事前”(BTE)和“事后”(ATE)保险。这两种形式的保险都专门用于承保被保险人对诉讼或仲裁中产生的法律费用的责任。根据保险结构,保险范围可能包括被保险人自身的法律费用,或包括被保险人在索赔失败时对争议相对人法律费用的潜在责任。

BTE is taken out to cover the risk of possible future litigation arising. It is sometimes sold as an add-on to other kinds of insurance and is usually limited in the types of dispute covered and the level of coverage provided. It will provide funding for bringing a claim falling within the scope of cover, paying lawyers’, arbitrators’ and experts’ fees during the course of the arbitration. It may also cover an insured’s liability for a costs award in its opponent’s favour.

BTE承保将来可能产生的诉讼风险,这种保险有时作为其他保险的附加险出售,通常受到所承保的争议类型和提供的赔付水平的限制。这种保险为保险范围内提起的索赔提供资助,并支付仲裁过程中产生的律师费、仲裁员费用和专家费用,也可能承保被保险人对有利于争议相对人的费用裁决所承担的责任。

A BTE insurer is remunerated through premiums paid in advance (usually annually). It has no interest in the proceeds of an arbitral award, other than (for arbitrations in which cost shifting is ordered) avoiding cover for an adverse costs award and potentially receiving reimbursement of the amount funded. When an insured dispute arises, the BTE insurer therefore has an interest in seeking to minimize its loss by controlling the conduct of the claim as closely as it can. Depending upon the policy terms, this may include requiring the policyholder to utilize the insurer’s choice of legal representative.

BTE保险人通过预交的保费(通常按年度收取)获得报酬,除无需承担不利费用裁决(对于裁定费用转移的仲裁)以及资助金额可能获得偿还外,对仲裁裁决的收益不享有利益。因此,当承保的争议出现时,BTE保险人会尽可能严密地控制索赔的进行以减少损失。

ATE insurance (increasingly known as litigation/arbitration insurance) is taken out after a legal dispute has arisen and covers the risk that the insured party will be unsuccessful in the litigation/arbitration. The industry flourished in the UK in the early 2000’s and was historically aimed primarily at insuring against the risk of fee shifting (liability for adverse costs), although most policies also covered the claimant’s own ‘disbursements’, such as expert fees, barrister fees, court fees etc., on the basis that the law firm would be engaged on a conditional fee basis.

ATE保险(越来越被称为诉讼/仲裁保险)用于法律争议产生之后,承保被保险人诉讼/仲裁失败的风险。20世纪初,该产业在英国蓬勃发展,传统上主要为了防范费用转移(对不利费用的责任)风险,虽然在律师事务所基于风险代理收费被聘用的前提下,多数保险单也承保申请人自身的“开支”,如专家费、出庭律师费和法院费用等。

Today, the litigation/arbitration insurance industry is mature and well-established, albeit still niche and highly specialized. Coverage may be provided for the insured’s attorney’s fees and out of pocket costs as an alternative or complementary option to third-party funding. In addition, in forums and jurisdictions where fee shifting applies, insurance generally remains the most cost-effective way for parties to hedge the adverse costs risk and provide security for costs where necessary. The UK is still one of the largest markets, but the industry is growing rapidly, especially in North America and Asia, but also across Europe. Many insurers are now experienced in underwriting large, complex international arbitrations (both commercial and investor/state). The term “ATE insurance” may be regarded as too narrow when describing the broader global litigation /arbitration insurance market. Whilst it is true that some of the structures, premium pricing, underwriting criteria and policy wordings have their origins in the UK ATE insurance market, the market has evolved significantly in scope and sophistication and indeed many of the present day market participants would not regard themselves as writing ATE insurance.

如今,尽管小众和高度专业化,诉讼/仲裁保险市场已经成熟和完善。作为第三方资助的替代或补充选择,保险承保范围可以涵盖被保险人的律师费用和现金支出。另外,在适用费用转移的地点和司法辖区,保险通常仍是最具性价比的当事人对冲不利费用风险的方式。英国仍然是最大的市场之一,但这个产业正在快速发展,尤其在北美、亚洲和欧洲。许多保险公司在承保大型、复杂的国际仲裁(包括商业仲裁和投资者/东道国仲裁)方面都具有丰富的经验。在描述更广泛的全球诉讼、仲裁保险市场时,“ATE 保险”一词可能被认为过于狭窄。虽然一些结构、保费定价、承销标准和保单措辞确实起源于英国ATE保险市场,但该保险在范围和复杂程度上已发生重大变化,实际上,现在的许多市场参与者不认为自己是ATE保险。

Litigation/arbitration (including ATE) insurance premiums can be structured in a number of ways. A common model, which is unique to this type of insurance, is a “contingent premium” model, by which the insured only pays the insurer a premium if and when they are successful in the claim (in which case the premium is usually paid out of the settlement or damages award obtained, in a similar manner to a third-party funder’s return, although usually much lower in amount).

诉讼/仲裁(包括ATE)保险费的构成可以有多种方式。这类保险独有的通用模式是“或有保费”模式,这意味着被保险人只有在索赔成功时向保险公司支付保险费(在这种情况下,保费通常从和解赔偿款或裁定的损害赔偿款中支付,与第三方资助的回报方式相似,但金额通常低很多)。

As the ATE/litigation/arbitration insurance market expands internationally, it is increasingly competing directly with (as well as in some instances supporting and complementing) the third-party funding market. In practical terms, a claimant considering third-party funding as an option may also, in parallel, consider using insurance to cover its legal fees and/or out-of-pocket costs (both historic and future) in exchange for which it will only pay the insurer a premium if it wins the case and collects damages or a monetary settlement. In this form, litigation/arbitration insurance is structurally very similar to third-party funding. The only material differences are that the insurer does not provide day-to-day financing, but instead will pay out on an indemnity basis if the case is unsuccessful. The other important difference is that insurance premiums are typically much lower than the typical return sought by a third- party funder.

随着诉讼/仲裁保险市场的国际扩张,该保险市场与第三方资助市场的直接竞争(以及在某些情况下互为支持和补充)也越来越激烈。实际上,一个正考虑寻求第三方资助的申请人,也可能同时考虑对其法律费用和/或现金支出(包括已发生的和将来发生的)进行投保,在赢得案件并获得损害赔偿金或和解赔偿款时向保险公司支付保险费。这种形式的诉讼/仲裁保险在结构上与第三方资助非常相似。唯一的本质差异在于保险公司不提供日常融资,而是在案件失败时对被保险人进行补偿。另一个重要区别是保险费通常比第三方资助者寻求的典型回报低很多。


B. Loans, Corporate Financing, Equity-based and Inter-Corporate Funding

贷款、企业融资、股权和公司内部资助

Arbitrations may also be funded through traditional loans, corporate finance, equity- based investments, or some hybrid. For example, a parent company may make a loan to a subsidiary to enable it to pursue a claim, or the shareholders, creditors or beneficial owners of an entity may provide financial support for the pursuit of a claim which will in turn provide a financial benefit which will flow back to them.

仲裁资助也可以通过传统贷款、企业融资、股权投资或一些混合模式来提供。例如,母公司可以向子公司提供贷款使其能够提起索赔;或者某实体的股东、债权人或利益所有人可以为索赔提供财务支持,再收回这些索赔所产生的财务收益。

Some types of funding are effectively a form of private equity.[4] There have been some examples of third-party funders taking an equity position in the claimant entity and, as such, gaining control over its investment through traditional corporate governance (i.e., membership on the Board of Directors).

一些资助类型实际上是私人股本形式。在一些案例中,第三方资助者在申请人实体中持有股权,因此可通过传统的公司治理(即董事会成员)来控制其投资。

Corporate financing specifically to fund a party’s costs in a dispute can raise some of the same issues as third-party funding. Those issues, however, have traditionally been resolved through traditional corporate governance mechanisms and existing rules that govern corporate relationships. For example, the potential for conflicts of interest between an arbitrator and a party extends not only to the party itself, but also to affiliates of and entities that have a “controlling influence” on that party.[5] An extended discussion of arbitrator conflicts of interest analysis with respect to such arrangements is provided in Chapter 4.[6]

企业融资专门对争议一方当事人的费用提供资助,可能会引起与第三方资助相同的问题。但这些问题通常能够通过传统的公司治理机制和现有的公司关系管理规则来解决。例如,仲裁员和一方当事人之间的潜在利益冲突可能不仅局限于当事人本身,也可能牵涉到对该公司有“控制性影响”的分支机构和实体。


C. Attorneys as Funders 律师作为资助者

Attorneys may effectively act as funders when engaged to act on a full or partial contingency fee basis.[7] In either instance, the attorney bears some or all of the cost of the arbitration and assumes the risk of loss. A common structure involves the client financing the out of pocket costs and expenses (either from its own resources or with external financing) with the law firm forgoing payment of some or all its fees in exchange for a share of any award or settlement obtained. However, in some instances, the law firm may also agree to cover the out of pocket expenses, including tribunal fees, in exchange for a larger contingency fee.

律师可以在全部或部分基于风险代理收费时有效充当资助者。在任何一种情况下,律师承担全部或部分仲裁费用和失败风险。通常结构是由客户支付现金费用(可以自行支付或通过外部融资),律师事务所不再收取全部或部分律师费,以换取裁决或和解收益的部分份额。但在某些情况下,律师事务所也可能同意支付包括法庭费用在内的现金支出,并在案件成功时获得更大份额的风险代理费。

This type of arrangement (especially where the law firm pays the out of pocket costs) is conceptually and structurally similar to third-party funding in many ways. It may also produce comparable economics from the claim holder’s perspective – the law firm’s share of the proceeds for taking a case on full contingency, including covering the out of pocket costs, may reasonably be expected to be similar to the share required by a funder for financing the case in full. Where, as is not uncommon, the law firm and a third-party funder share in the risk / reward (e.g., by the firm forgoing payment of fees with the funder covering the expenses), each party should expect a share of the proceeds which is commensurate with the relative risk taken by each.

这种安排(尤其是律师事务所支付现金费用)的许多方面在概念和结构上都与第三方资助相似。从索赔持有者的视角来进行经济比较——律师事务所在完全风险代理案件中所占的收益份额,包括弥补现金费用,可合理地被认为与资助者全额资助案件所要求的收益份额相似。律师事务所和第三方资助者分担风险并分享报酬的案例并不罕见(例如,律师事务所不收取律师费而资助者支付费用),此时各方对所得收益的预期份额应与其所承担的风险相称。

Although there are a number of law firms that have amassed significant “war chests” to support contingent fee work, many of the more conservative law firms are not able to assume significant fee risks on large claims. Such firms have historically been more likely to turn to third-party funders. However, developments in the availability of insurance options to enable law firms to hedge fee risk,[8] as well as the rise in law firm portfolio financing is enabling historically conservative firms to take on more contingent fee work, while mitigating fee risk and cash flow concerns.

虽然一些律师事务所积聚了大量的“战争基金”来支持风险代理工作,但许多较为保守的律师事务所仍无法承担大额索赔的重大费用风险。这种事务所历来更可能求助于第三方资助者。然而,保险可得性的发展使律师事务所能够对冲费用风险,同时,律师事务所组合融资的增加也使历来保守的事务所能够承担更多的风险代理工作,并减轻费用风险和现金流问题。

In addition to traditional contingency fee arrangements, other alternative fee arrangements may divide the risk between clients and attorneys. Examples include a reduced hourly rate, or capped fees, but with a “success fee” added as a bonus if the claimant wins, as well as fee collars, staged fee caps, etc. Such arrangements will often bear much less resemblance to third-party funding and may in practice represent only a small departure, in risk/reward terms, from the law firm’s normal hourly rate model. However, such a fee agreement is still highly relevant to the third-party funding structure. For example, a fee cap which ensures that there is no risk of budget overrun will be a positive feature from the perspective of potential funders and may in some instances be preferable to a discounted hourly rate.

除传统的风险代理收费安排之外,其他替代费用安排也可以划分客户和律师之间的风险。例如减少时薪或设置封顶费,若申请人获胜,则在打折收费或阶段性封顶费等基础上增加“成功费”作为奖金。这类安排通常与第三方资助不太相似,在实践中也只是在律师事务所正常收费标准的基础上,对风险和回报条款略作调整。但这种收费协议仍然与第三方资助结构密切相关。例如,封顶费可以避免预算超支风险,从潜在投资者的角度看这是一个积极特征,在某些情况下可能比打折时薪更可取。

With pro bono lawyering, the attorney may absorb all or most of the cost of representing a client, who is usually indigent or otherwise unable to pay, without any guarantee or reasonable expectation of reimbursement or profit. To date, pro bono representation has been relatively rare in international arbitration, but certain NGOs are active as amici and it is plausible they could end up providing representation for certain claims that implicate causes they support. Although it has some similar markers and may raise some similar issues, pro bono representation is not usually treated as a type of “financing” because no money changes hands. But as Bench Nieuwveld and Shannon Sahani point out, “the practical effect of the attorney representing the client without requiring payment could certainly be viewed as a form of ‘financing’, because the financial burden of legal representation has been shifted from the client to the attorney”.[9]

在无偿代理下,对于通常贫困或无支付能力的客户,律师可以为其承担全部或大部分代理费用,即使没有获得任何保证,也没有任何偿还或获利的合理预期。目前为止,无偿代理在国际仲裁中相对少见,但一些非政府组织主动担任临时法律顾问,并最终可能为由其支持的原因所引起的特定索赔提供代理。虽然无偿代理具有第三方资助的类似特征且可能引发一些类似问题,但因其不存在财务交换,通常也不会被视为一种“融资”。但Sahani和Sahani指出,“在不要求支付的情况下,律师代理客户的实际效果当然可以被视为一种融资形式,因为法律代理的财务负担已经从客户转移到律师身上。”


III. Current Trends and Evolution of Funding Models 资助模式的当前趋势和演变


The rising global prominence of dispute funding has led to some jurisdictional liberalization and a re-analysis of the status of champerty and maintenance in a number of jurisdictions,[10] with some notable exceptions, such as Ireland, where the Supreme Court recently held that third-party funding was unlawful on the ground of champerty.[11]

争议资助全球地位的上升促进了司法自由化,并导致了对许多司法辖区帮诉和唆诉的法律地位的重新分析,除一些明显的例外,如爱尔兰,其最高法院最近裁定第三方资助因涉及帮诉而属于非法行为。

In its modern incarnation, dispute funding has the ability to transform a legal claim into a financial asset, which can potentially be monetized or used as collateral in order to secure finance. At present, dispute funding is moving more into the realm of corporate finance, with increasingly diverse and sophisticated options becoming available.

现代形式的争议资助能够将法律索赔转化为金融资产,这些资产可以货币化或作为融资担保的抵押。目前,争议资助正更多地进入企业融资领域,使日益多样和复杂的选择成为可能。

At the same time, the global third-party funding market is growing exponentially, both in terms of the number of funds operating, and in terms of the amount of capital available. However, when it comes to individual dispute funding, many funders have similar appetites and underwriting criteria, meaning that in some jurisdictions, the market is become increasingly crowded, forcing funders to compete more aggressively for opportunities and explore alternative ways of deploying capital. What follows are some examples of the ways in which the market is evolving.

与此同时,全球第三方融资市场正以指数增长,无论在营运资金数额方面,还是在可用资本总额方面。然而,当涉及单个争议资助时,很多资助者都有类似的喜好和承销标准,这意味着某些司法辖区的市场变得越来越拥挤,迫使资助者为资助机会展开竞争并探索资本配置的可选方式。以下是一些市场演变的举例。


A. Portfolio Funding 投资组合型资助

Portfolio funding is gaining prominence as an alternative to financing on a case-by- case basis and is an approach that many funders now actively promote. A portfolio arrangement can be structured in many ways, but there are two major types of arrangements: (1) finance structured around a law firm, or department within a law firm, where the claim holders may be various clients of the firm; or (2) finance structured around a corporate claim holder or other entity, which is likely to be involved in multiple legal disputes over a relatively short period of time.

相比于个案资助,投资组合型资助能够获得更大优势,这种资助结构可以有多种结构,其中有两种最主要的安排类型:(1)在索赔持有人可能是同一律师事务所的不同客户时,围绕该律师事务所或其内部部门建立融资;或(2)围绕一个索赔持有公司或其他实体建立融资,很可能在较短期间内涉及多起法律争议。

Structuring finance around multiple claims under either model usually involves some form of cross-collateralization, meaning that the funder’s return is dependent upon the overall net financial performance of the portfolio as opposed to the outcome of each particular claim. This type of structure may enable the entity (e.g., the law firm or corporate client) to secure third-party funding more quickly, on pre-arranged terms, and, depending on the structure, the ability to benefit from the overall success of the portfolio. Additionally, there may also be economic benefits to this approach – if the funder’s risk is spread across multiple claims, this should in turn dictate a lower cost of capital for the funded party (although this does not always materialize in practice).

无论以何种模式对多个索赔构建融资,通常都涉及某种形式的交叉担保,这意味着资助者的收益取决于投资组合的整体净财务业绩,而非单个具体的索赔结果。这种结构可以使实体(例如律师事务所或公司客户)根据预先准备的条款更快获得第三方资助,并且可以根据资助结构从投资组合的总体成功中获益。此外,如果资助者的风险分散在多个索赔中,这种方式也可能产生经济效益,反过来受助者可以要求更低的资助成本(虽然在实践中并非都能实现)。

From a corporate claim holder’s perspective, portfolio financing offer some interesting options, such as the possible inclusion of some types of cases within the portfolio that would not ordinarily be capable of being funded on an individual basis (e.g., defence or non-monetary cases). This is possible because the funder’s return is collateralized by the claimant cases within the portfolio. Such a model may also enable the corporate claimant to monetize the portfolio, drawing capital secured against the dispute portfolio to utilize not just for financing legal expenditure but for other business purposes and/or to declare as profits.

从公司申请人的角度看,投资组合型融资提供了一些有趣的选择,例如可能将某类案件纳入投资组合中,而这些案件单独通常不能获得资助(例如,作为案件抗辩方或案件不涉及金钱的情况)。这种情况可能存在,因资助者的回报与投资组合中其他索赔案件的回报一起获得抵押。这种模式可能使公司申请人将投资组合货币化,以投资组合争议作为资本担保,不仅用于融资法律支出,还可用于其他商业目的或列为收益。

A law firm portfolio may be structurally similar, where the finance is provided to support a law firm’s contingency fee portfolio, with the funder’s return pegged to the law firm’s success. Again, such a model potentially allows for the law firm to draw capital more flexibly than a single case funding scenario, as well as enabling, for example, fee overruns on one case to be offset by another case that is operating below budget. Under the above model, the funder may have no direct contractual relationship with the law firm’s clients, as the portfolio funding agreement is only between the law firm and the funder.

当融资的提供是为了支持律师事务所的风险代理收费投资组合时,律师事务所的这种投资组合可能以相似模式构建,资助者的回报与事务所案件胜诉率挂钩。同样,相比于个案资助的方案,这种模式可能使律师事务所能更灵活地吸引资本,并把某案件中超出预算的部分与其他案件中低于预算的部分相抵消。在此模式下,资助者可能与律师事务所的客户没有直接合同关系,投资组合资助协议的当事人只包括律师事务所和资助者。

An alternative variety of law firm portfolio (which may exist alongside the structure described above) is one where the law firm’s clients enter into individual funding agreements with the funder, but the terms of those agreements and/or the process for putting finance in place is dictated by the law firm’s wider arrangement with the funder. Such arrangements are arguably not portfolio arrangements as defined above, as it is unlikely that cross-collateralization would be possible amongst the funded cases. (It would be surprising for one claimant to agree that some portion of its claim proceeds should go to offset losses suffered by another unrelated client of the firm.) Such arrangements can still offer clear benefits to the law firm, if for example the funder offers an expedited due diligence process, pre-agreed funding terms, etc. However, such arrangements do create potential conflict of interest issues, which law firms need to navigate carefully.

律师事务所投资组合的替代品种(可能与上述结构同时存在)是该事务所的客户与资助者签订单独的资助协议,但协议的条款和资助的到位过程是在律师事务所与资助者之间更广泛的资助安排中拟定。这些安排可以说不属于上述定义的投资组合安排,因这些受助案件不可能存在交叉担保(让某申请人同意将部分索赔收益用于弥补该律师事务所其他不相关客户的损失,这想法很不可思议)。这种安排仍然可以为律师事务所带来明显好处,如果资助者可以提供快速的尽职调查程序,预先约定的资助条件等。但这种安排确实会导致潜在的利益冲突,律师事务所须谨慎行事加以避免。


B. Going Beyond Financing Legal Cost 资助范围超出法律费用

Another developing area with respect to the litigation finance market is the increasing willingness of funders to consider (and in some instances, actively pursue) opportunities where the funder’s capital is to be used for a purpose other than solely financing legal fees and costs. For instance, funders are providing working capital to the claimant entity during the life of the proceedings, providing financing to enable the claimant to discharge pre-existing liabilities or simply providing an advance on the damages to the claimant. Such structures are substantially similar to “traditional” third- party funding, in that the funder commits to provide a certain amount of capital with the funder’s return tied to the success of litigation or arbitration. Using this model, a claim holder can use the claim as an asset in order to raise capital for a variety of potential purposes.

与诉讼融资市场有关的另一个发展领域是,越来越多投资者考虑(在某些情况下,积极地寻求)资助机会并将资金用于其他目的,而不限于对法律费用和成本的融资。例如,资助者在案件审理过程中向申请人的实体提供营运资本,或提供融资使申请人的实体能够清偿之前的债务,或只是向申请人预先支付一部分损害赔偿款。这种结构实质上类似于“传统”的第三方资助,即资助者承诺提供一定数额的资金,其回报取决于诉讼或仲裁的成功。使用这种模型,申请人可以将索赔作为一种资产,以便为各种潜在用途筹集资金。

In the early life of the market, this structure was viewed by many funders as unattractive. Where offered, it was usually only relatively modest in sum and incidental to a larger funding provision for legal costs. However, as the market has become more competitive, funders are increasingly seeking to differentiate themselves and offer alternative applications for their capital, including in some instances inviting prospective clients to consider third-party funding not only as a means of financing their litigation but simply as a way of raising capital on a non-recourse or limited recourse basis.

在早期市场,这种结构被许多资助者认为缺乏吸引力。即使提供资助,数额通常也较低并对法律费用附加大量条款。然而,随着市场竞争越来越激烈,投资者日益寻求差异化为其资本提供替代性用途,包括在某些情况下,邀请潜在客户将第三方资助不仅视为诉讼融资手段,也可将其视为基于无追索权或有限追索权的融资手段。

That said, the practical availability of such arrangements should not be overstated. Whether a deal is capable of being structured in practice depends upon a large number of factors. The dynamics of such arrangements may be unattractive. For example, if the majority or entirety of the funder’s committed capital is to be drawn on day one, this may be a significant departure from the traditional litigation finance economics, where the funder expects its funding commitment to be gradually drawn down during the life of the proceedings. This may entail a greater cost of capital to the funder and therefore less favourable funding terms.

即使如此,这种安排的实际可得性不应过分夸大。交易能否在实践中达成取决于许多因素。这些安排可能缺乏吸引力。例如,如果资助者承诺的大部分或全部资本都在第一天到位,这可能与传统的诉讼融资经济存在显著区别,在传统资助中,资助者期望其承诺的资金应在案件审理过程中逐步到位。资金一步到位可能增加资助者的成本,因此资助条件会更加苛刻。

Additionally, there is the problem of the case itself. If the claim holder wishes to use the claim to raise capital, it is likely that they may also require financing for legal costs. In such a case, the overall funding commitment will be materially larger than it would have been if the funding was limited solely to the arbitration budget, therefore requiring a much larger claim value in order for the arrangement to work. Funders will be wary of a deal that puts too much cash into the client’s pocket upfront or too heavily erodes the client’s expected net recovery, because of the risk that the client may lose interest in the outcome of the case and not commit itself fully to maximizing the chances of success.

另外,案件本身也存在问题。如果申请人希望通过索赔筹集资金,其很可能要求为法律费用提供资助。相较于原本仅为仲裁预算提供资助,这种案件承诺资助的总额将显著增加,因而要求案件具有更大的索赔价值以便于资助安排的进行。对于需要预先投入太多现金给客户的案件,或是资助回报相对于索赔价值太高的案件,资助者都会非常谨慎,因为这些客户可能丧失对案件结果的兴趣,不会尽全力争取胜诉。


C. Equity Financing 股权融资

As noted above, under the traditional model of dispute funding, the funding commitment, the expected level of return, and the terms of the investment are set out within and governed by contract (e.g., the funding agreement and/or a waterfall or priority agreement that sets out the distribution of any recovery). However, if the claim holder is a special purpose vehicle (“SPV”) or entity with no other material assets other than the claim in question, the third-party funder may be able to structure its investment and return by purchasing equity in the claimant entity. Under this model, the funder’s return is derived from distributable profits generated from the success of the arbitration, as opposed to a contractual return. Such a structure may offer a number of potential benefits. It may, for example, enable the funder to take greater or total control over the litigation without running afoul of champerty restrictions. For example, it has been expressly recognized by the Irish Supreme Court that structuring investment in this way would not be deemed to be champertous, whereas third-party funding would be.[12]

如上所述,在传统的争议资助模式下,资助承诺、预期回报水平以及投资条件都规定在合同中并受其约束(例如,资助协议或规定风险分担的优先级协议)。然而,如果索赔持有人是除索赔外没有任何有形资产的特殊机构(“SPV”)或实体,第三方资助者可能以购买申请人股权的方式建立投资和回报结构。根据这种模式,资助者的回报非基于资助合同,而是从仲裁胜利的可分配利润中产生。这种结构具有许多潜在好处。例如,它可以使资助者掌握更大的或全部的诉讼控制权而不违反帮诉限制。例如,爱尔兰最高法院已明确承认这种投资结构不属于帮诉,而第三方资助则属于。

Furthermore, owning a stake in the claim holder may enable the funder to be brought within the circle of privilege, allowing the funder access to all privileged information without concerns about a potential discovery application for information shared with the funder.

此外,在申请人所在实体中持有股权可以将资助者纳入特权范围并允许资助者获得所有的特权信息,而不用担心与资助者共享信息的潜在披露请求。


D. Assignment/Sale of Claims 索赔的转让/ 出售

There are many situations where the outright sale of the claim may be preferable for both the claim holder and the funder to the ‘traditional’ third-party funding model. A claim holder may view lengthy arbitration (or litigation) proceedings as a costly and time-consuming nuisance and would prefer to transfer the rights to another party in exchange for an immediate payment of cents on the dollar. From the funder’s perspective, having total, unfettered control of the claim (including, in particular, control of settlement decisions) may be highly desirable.

有很多情况下,“传统”第三方资助模式中的申请人和资助者都可能偏向于直接出售索赔。申请人可能把冗长的诉讼或仲裁程序视为费时费力的负担,并乐意将权利转让给另一方以换取现金款项的立即支付。从资助者角度看,对索赔享有不受约束的完全控制(尤其是包括对和解决策的控制)可能非常理想。

In common law jurisdictions, the outright sale or assignment of claims may not be permitted. In jurisdictions where champerty still exists, funders may be prohibited from taking control of another party’s litigation in this way. The traditional definition of third-party funding in common law jurisdictions will therefore typically describe the arrangement as an investment in the claim holder’s litigation in exchange for a financial interest in the outcome,[13] as opposed to an outright sale.

在普通法司法辖区,索赔的直接出售或转让可能不被法律允许。在存在帮诉的司法辖区,资助者可能被禁止以这种方式控制另一方当事人的诉讼。因此,在普通法司法辖区,第三方资助的传统定义通常把这种安排描述为对申请人诉讼的投资以换取对结果的经济利益,而非直接出售索赔。

However, as noted above, in some civil law jurisdictions, funders may adopt a model where the claim is simply purchased outright and pursued by the purchaser, possibly aggregated to other similar claims in order to produce costs savings. The market for the purchase and aggregation of cartel damages claims in Germany and the Netherlands is a good example of this approach. To date, there are few examples of international arbitration claims being arrogated in this way.

但如上所述,在一些大陆法司法辖区,投资者可以采取一种模式,直接购买索赔并由购买人提起索赔程序,可能合并其他类似索赔以节约成本。德国和荷兰的卡特尔索赔并购市场就是很好的例证,尽管在国际仲裁中很少采用。

In the UK, the exemption for liquidators allows the assignment of claims to other parties. This option has led to a rise in the practice of funders offering to buy claims arising in insolvency rather than fund the claims directly. The structure may involve an upfront purchase price (allowing an immediate distribution to creditors), a deferred structure where the funder pays a share of any amounts recovered to the insolvent estate, or a combined part upfront, part deferred payment structure.

在英国,清算豁免允许将索赔转让给其他当事人,这种豁免权导致实践中越来越多资助者不再直接资助索赔,而是提出购买在破产中产生的索赔。这种结构可能涉及前期购买价格(允许立即分配给债权人)或延期结构(在延期结构中资助者支付一部分获赔金额并列入破产财产),或以上两种方式的结合。


E. Enforcement Financing 执行融资

By definition, the non-recourse litigation financing model requires the funder to accept both what may be described as “dispute risk” (i.e., the risk of an adverse ruling or award) and enforcement or collection risk. In other words, in order to see a return on invested capital, the funded party must not only win the case, but must also successfully enforce the award.

根据定义,无追索权的诉讼融资模式要求资助者接受所谓的“争议风险”(即一个不利的判决或裁决的风险)和执行或回收风险。换言之,为得到投资资本的回报,受助者不仅必须赢得案件,而且必须成功地执行裁决。

Traditionally, many third-party funders have been more comfortable assessing litigation risk than enforcement risk, which is perhaps a reflection of the fact that most third-party funders are managed by former lawyers. In the early stages of the market’s development, it was common for funders to simply turn down cases where enforcement was likely to be challenging due to the lack of identifiable, locatable assets. However, as the market has developed, funders have recognized that many of the largest and potentially most lucrative disputes might require an acceptance of material enforcement risk.

传统上,许多第三方资助者更乐于评估诉讼风险而非执行风险,这也反映了大多数第三方资助者都由前律师管理的事实。在市场发展的早期阶段,因资产的识别和定位问题可能使执行面临挑战,资助者经常干脆地拒绝此类案件。然而,随着市场发展,资助者已认识到,许多潜在利润丰厚的大型争议可能需要接受实质的执行风险。

Today, many funders have in-house asset-tracing and enforcement capability, and may seek to differentiate themselves on that basis. Similarly, there are a number of funders that originally started out as award enforcement or debt recovery agencies, but have gradually embraced opportunities to get involved and finance contested claims at earlier stages in the arbitration process and now finance contested claims. Some such funders may now be known generally as third-party funders, even though their businesses may pre-date the modern third-party funding industry. Others may not describe themselves as third-party funders, but nevertheless offer similar structures.

现在,许多资助者有内部的资产跟踪和执行能力并可以在此基础上寻求差异化。同样,也有一些资助者最初曾是裁决执行或债务回收代理,但已经逐渐抓住机会参与并为仲裁过程的早期阶段提供争议资助,而现在为争议索赔提供资助。一些这样的资助者现在通常被称为第三方资助者,虽然其业务可能在现代第三方资助产业存在前就已经开始。其他一些资助者不称自己为第三方资助者,但提供类似的资助结构。

In practice, enforcement financing may be expressly or implicitly built into an agreement to fund an arbitration claim on the basis that the funder will not see a return until the award is successfully enforced. Funders will also often consider enforcement-only opportunities, where an award has already been obtained and the claimant seeks financial support and/or expertise to secure collection. Enforcement financing is therefore a necessary component of third-party funding and something which most funders today provide, albeit with different risk appetites and levels of expertise.

在实践中,仲裁索赔的资助协议中可能明确订立或默认包含了执行融资条款(资助者得到回报的前提是裁决能够成功得到执行)。若仲裁裁决已经作出,在申请人为收回裁决利益而寻求资助支持或专家意见时, 资助者也会考虑仅为裁决的执行提供资助。因此,执行融资是第三方资助必要的组成部分,尽管资助者的风险偏好和专业知识水平有所不同,执行融资也是如今大部分资助者提供的资助类型。


F. Assignment/Sale of Awards 裁决的转让/出售

Related to the purchase of claims (discussed above) is the market for the purchase/assignment of awards and judgments. This practice is permitted in most jurisdictions and pre-dates modern concepts of third-party funding. Many of the funds that operate in this space would not consider themselves to be third-party funders, however many third-party funders will also consider such opportunities. Like claims sales, the sale of awards can be structured in a number of different ways, from a simple upfront purchase price to a payment which is in whole or in part based upon the amount collected.

与索赔购买(如前所述)有关的是裁决和判决的购买转让市场。该做法在大多数司法辖区都被允许并在现代第三方资助观念产生之前就已存在。这个领域的许多资助者不认为自己是第三方资助者,但许多第三方资助者也会考虑这种机会。与索赔出售一样,裁决出售可以采用多种不同方式构建,从简单的前期购买价格,到全部或部分根据回收金额付款。


IV. Conclusion 结论


In the last decade, the global dispute finance industry has grown beyond all recognition and continues to expand, both in terms of the number of funders operating and in terms of the amount of capital raised and deployed. This market growth has gone hand-in- hand with rising awareness amongst the legal community. There are few arbitration attorneys that are not at least aware of the basic premise of third-party funding, and there is an ever-growing proportion that have first-hand experience of the market.

在过去十年中,全球争议融资产业以惊人的速度发展并继续不断壮大,无论是资助者数量还是募集或部署的资本金额。这个市场的增长与法律意识的觉醒密切相关,很少有仲裁律师不知道第三方资助的基本前提,对这个市场有亲身经验的仲裁律师比例在不断增大。

Much of the focus of the larger dispute funders today is on encouraging greater corporate use of such forms of finance. While historically third-party funding was considered an option of last resort for financially distressed claimants, funders are today increasingly encouraging corporate entities with strong balance sheets to use dispute finance as an alternative to tying up their own capital in litigation or arbitration. The idea and advantages of off-balance sheet litigation and turning in-house legal departments into profit centres are well-established.

现在大型争议资助的主要焦点是鼓励更多公司使用这种融资形式。尽管第三方资助历来被认为是陷入困境的申请人的最后选择,现在的资助者越来越鼓励资产雄厚的企业使用争议融资作为替代手段,以避免将自己的资本套牢在诉讼或仲裁程序中。表外诉讼的想法和优势已经得到确认,它可以将内部法律部门转化为利润中心。

While the market is becoming more diverse, the larger funders have tended to follow a relatively similar pattern. They commonly seek primarily to invest in a relatively small volume of very large commercial disputes and portfolios. The amount of capital committed to each investment tends to be in the millions of dollars, the claim values in the tens or hundreds of millions (or more), and the funders are expecting to make a multiple return on the capital invested in successful cases.

尽管市场日趋多样化,但大多资助者倾向于遵循相似模式。资助者通常主要试图投资大型商业争议和投资组合中的较小份额,每一笔投资的资本总额往往为数百万美元,索赔价值达到数千万、数亿甚至更高,资助者期待所投资本能在案件胜利时获得丰厚的回报。

Investing in this profile of cases with the levels of financial risk involved tends to necessitate both high rejection rates and detailed due diligence. While many funders advertise speed of execution by comparison to their competitors, the reality is securing funding can be a lengthy and complex process. More streamlined options for financing smaller to medium-sized claims are still limited in many jurisdictions, although this is an area which is gradually attracting interest from the dispute finance market and is expected to continue to develop in the next few years.

对涉及财务风险的案件组合进行投资,往往伴随高拒绝率和详细的尽职调查。虽然许多投资者宣称其执行速度比竞争对手更快,现实是寻求资助是一个漫长而复杂的过程。在许多司法辖区,提供给中小型索赔的更精简的融资选择仍非常有限,尽管该领域正逐渐吸引争议融资市场的关注并有望在今后几年继续发展。

The growing number of funders has already produced and should continue to yield positive developments for prospective users of dispute funding, requiring funders to compete on speed and cost of capital in order to win business and meet target capital deployment levels.

越来越多资助者已开始发展,并应继续积极发展争议资助的潜在用户,这需要资助者在速度和资金成本上展开竞争以赢得业务并达到目标资本的部署水平。

Third-party funding must also be seen in the context of the wider arbitration finance and risk management market. As noted above, law firms may play an increasingly prominent role in this regard. Currently, some historically conservative firms are using external finance and insurance to support development of contingency fee portfolios. As more innovative financing solutions become available to law firms, potentially with lower capital costs than traditional third-party funding, law firms and funders may also start to compete for opportunities.

第三方资助必须放在更广泛的仲裁融资和风险管理市场中考虑。如上所述,律师事务所在这方面可能发挥日益突出的作用。目前,一些向来保守的事务所正利用外部融资和保险来支持风险代理投资组合的发展。随着更多创新融资方案被律师事务所采用,其资金成本可能比传统第三方资助更低,律师事务所和资助者也可能开始争取资助机会。

In addition, the dispute risk insurance market is developing rapidly, growing in prominence and expanding into new markets and jurisdictions. These insurance options are now being presented by lawyers and brokers alongside third-party funding as part of a broader discussion about the potential options available to finance or de-risk arbitration.

此外,争议风险保险市场发展迅速,知名度不断上升并扩展到新的市场和司法辖区。这些保险选择同第三方资助被律师和经纪人放在一起,作为仲裁融资或降低仲裁风险的潜在选择进行更广泛的讨论。