The Third Party Litigation Funding Law Review: Singapore

Market overview

Singapore has only welcomed third party funding since 2017 with the amendment of the Civil Law Act (the CLA). Until then, litigation funding was considered unlawful under the general principles of maintenance and champerty. In 2017, lawmakers decided to abolish the common law torts of maintenance and champerty and approved the use of funding but only for international arbitration and related proceedings. As a result, the first litigation funding agreement was reported in 2017, and since then there is a clear tendency in favour of third party funding.

Funding is a significant topic among the legal community and has been welcomed by local players. To maintain its position as a litigation and arbitration hub in Asia, Singapore had to continue modernising the jurisdiction, and this is probably why a second amendment of the law on third party funding took place recently. In 2021, the permissible fields for funding in Singapore were expanded. Since 28 June 2021, litigation funding has been allowed in domestic arbitration, court proceedings arising from or connected with domestic arbitration and proceedings commenced in front of the Singapore International Commercial Court (SICC). From now on, funding is thus possible for some court proceedings in addition to arbitration.

According to a recent well-known survey,2 Singapore is, after London, recognised as the preferred seat for arbitration in the world, and the preferred jurisdiction in the Asia-Pacific region. To maintain this popularity, opening the door to third party funding was a necessity.

The case law on funding is still limited, except in the insolvency sector, where funding has been recognised as valid since 2015. In a decision of that year, the Court recognised for the first time the validity of a funding agreement concluded between a company's liquidators and three of its shareholders.3 Acknowledging the increasing interest in third party funding in the insolvency sector, the legislature also recently modified the law by recognising the validity of the financing of insolvency proceedings. Since the entry into force on 30 July 2020 of the new Insolvency, Resolution and Dissolution Act 2018 (IRDA), a liquidator can enter into third party funding agreements (upon court approval or authorisation by the committee of inspection) in respect of claims about specific types of transactions.

These moves towards opening the Singaporean market to third party funding in the past 18 months are good indicators of a positive future for third party funding in this key Asian jurisdiction.

Legal and regulatory framework

As explained above, litigation funding was prohibited in Singapore until recently, based on the principles of maintenance and champerty.

In 2017, the CLA was amended, and the common law torts of maintenance and champerty were abolished.4 However, as a matter of principle, litigation funding contracts continue to be contrary to public policy or are otherwise illegal (and hence unenforceable) unless they fall within permitted categories of dispute resolution proceedings.5 Pursuant to Article 5(2) of the CLA, 'a contract under which a qualifying Third-Party Funder provides funds to any party for the purpose of funding all or part of the costs of that party in prescribed dispute resolution proceedings is not contrary to public policy or otherwise illegal by reason that it is a contract for maintenance or champerty'.

Aside from the categories prescribed by the CLA, funding is also permitted under specific circumstances in insolvency proceedings as stated in the IRDA.

i Litigation funding in arbitration and related proceedings

The Civil Law (Third-Party Funding) Regulations 2017 and the Civil Law (Third-Party Funding) (Amendment) Regulations 2021

The first move in favour of third party funding was made in 2017 with the introduction of the Civil Law (Third-Party Funding) Regulations 2017. Since then, third party funding agreements are valid and enforceable provided they comply with two conditions: (1) the funding agreement must be concluded with a qualifying third-party funder; and (2) they must relate to one of the limited prescribed dispute resolution proceedings.6 These are as follows.

A qualifying third-party funder is a funder who carries on the principal business, in Singapore or elsewhere, of the funding of the costs of dispute resolution proceedings to which the funder is not a party7 and has a paid-up share capital of not less than S$5 million or the equivalent amount in foreign currency or not less than S$5 million or the equivalent amount in foreign currency in managed assets.8 The regulation further defines what are considered as 'managed assets'.9

Until very recently, prescribed dispute resolution proceedings were limited to:

  1. international arbitration proceedings;
  2. court proceedings arising from or out of, or in any way connected with, international arbitration proceedings;
  3. mediation proceedings arising out of, or in any way connected with, international arbitration proceedings;
  4. applications for a stay of proceedings referred to in section 6 of the International Arbitration Act (Cap. 143A) and any other application for the enforcement of an arbitration agreement; and
  5. proceedings for, or in connection with, the enforcement of an award or a foreign award under the International Arbitration Act.

On 28 June 2021, the prescribed list of proceedings was broadened by the Civil Law (Third-Party Funding) (Amendment) Regulations 2021.10 The list now also includes:

  1. arbitration proceedings (thus domestic arbitrations are now included);
  2. court proceedings arising from, out of, or in any way connected with, any arbitration proceedings;
  3. applications for a stay of proceedings mentioned in Section 6 of the Arbitration Act or Section 6 of the International Arbitration Act, and any other application for the enforcement of an arbitration agreement; proceedings for, or in connection with, the enforcement of an award under the Arbitration Act or an award or a foreign award under the International Arbitration Act;
  4. defined mediation proceedings;
  5. proceedings commenced in the SICC for so long as those proceedings remain in the SICC; and
  6. appeal proceedings arising from any decision made in proceedings commenced in the SICC while those proceedings remained in the SICC.

In a press release of 21 June 2021, the Ministry of Law said this broadening of the scope of permissible funding could offer 'businesses an alternative avenue to fund meritorious claims and further strengthens Singapore's position as an international commercial dispute resolution hub, which will benefit the legal community here'.11

The initial requirements regarding the necessity of using a qualified funder remained unchanged. Thus, it is likely that only funders evidencing enough funding capacity will meet the legal requirements to enter a funding agreement in Singapore. While these requirements are likely to be easily met by companies whose main commercial activity is funding, they will naturally exclude any funding from a natural person or from companies pursuing a sideline business. This requirement is not surprising. Many other jurisdictions impose minimum requirements for funders to be active in their local market, evidencing a similar willingness to ensure that funders show enough capacity and professionalism before offering their services. The CLA even prescribes that, in case those conditions are not met, 'the rights of the Third-Party Funder under or arising out of the third-party funding contract affected by or connected with the disqualification or non-compliance are not enforceable by action or other legal proceedings, including arbitration proceedings'.12

Guidelines from the Law Society, the SIAC, the SIARB & the SICC

Shortly after the first amendments to the CLA were made, several guidelines were published to guide practitioners on the use of third party funding. These are:

  1. the Guidance Note 10.1.1 of the Law Society of Singapore taking effect on 25 April 2017 (the Guidance Note);13
  2. the Guidelines of the Singapore Institute of Arbitrators (SIARB) (the SIARB Guidelines) of 18 May 2017;14 and
  3. the Practice Note of the Singapore International Arbitration Centre (SIAC) of 31 March 2017 (the SIAC Guidelines).15

The Guidance Note is for the attention of lawyers and sets out 'best practices for lawyers who refer, advise or act for clients who obtain third-party funding'.16 After an overview of the legislative framework applicable to funding, the Guidance Note discusses specific issues that may arise when a lawyer advises a client on the use of funding. It also provides guidelines on five major issues: confidentiality, the scope of funding provided, how to manage conflicts of interest, the funder's level of involvement in the proceedings and the termination of the agreement (see the section below on the funding agreement for more details). Finally, it expressly refers to the SIARB and SIAC Guidelines, encouraging lawyers to verify that a funding agreement complies with them and to incorporate them as part of the agreement.17

The Guidance Note also contains a section on how lawyers should behave in their relationship with a funder, expressly prohibiting the lawyer from receiving a financial benefit from its introduction of a funder to a particular client or from having a particular financial or other interest in the funder.18 This prohibition is in line with the general obligation of lawyers towards their clients to ensure independence and impartiality in providing legal advice.

The SIARB Guidelines are the most extensive on the subject of litigation funding. The Singapore Institute of Arbitrators has actively supported the move in favour of litigation funding and has welcomed the amendments to the CLA. The SIARB Guidelines are drafted for the attention of funders and:

aim to promote best practices among Funders who intend to provide funding to parties in Singapore-seated international arbitrations. These guidelines set expectations of transparency and accountability between the Funder and Funded Party, as well as to encourage Funders to behave with high ethical standards towards Funded Parties so as to uphold the integrity of international arbitration practice in Singapore.19

As of the date of this publication, the SIARB Guidelines have been supported by 13 funders listed on the SIARB's website who undertake to comply with these Guidelines in the scope of their activities in funding arbitrations in Singapore. This list includes Deminor.

Finally, as a consequence of the recent modification allowing third party funding for proceedings before the SICC, the SICC Practice Directions20 had to be amended as well. Those directions were first published in 2015 and contain a set of procedural guidelines regulating proceedings before the SICC that are expected to be complied with by users. The guidelines have 23 parts and are modified from time to time. Amendment No. 3 of 2021 entered into force on 28 June 2021 and inserts a definition of third-party funder by referring to the definition provided by the CLA.21 It also allows the Court, when assessing the costs, to take into account 'such circumstances as the Court considers relevant, including the conduct of the case and the existence, scope, extent and terms of any third-party funding contract'.22

Although compliance with the guidelines is strongly recommended, especially for legal practitioners, failing to do so is not sanctioned by law and would not impact the funding agreement's validity under the CLA.

Professional Conduct Rules

Lawyers23 in Singapore must comply with the Legal Profession Act, and the Legal Profession (Professional Conduct) Rules 2015 (the LPR 2015).24 Amendments to both sets of rules were made in 2017, allowing solicitors to introduce a funder to clients, and to advise on and draft third party funding contracts. However, obligations were imposed on lawyers with respect to the disclosure of the existence of a funding contract and the funder's identity.25 They also prohibit legal practitioners from holding any interest in a third-party funder.26

In addition to these rules, registered foreign lawyers involved in SICC proceedings must also comply with the Legal Profession (Representation in Singapore International Commercial Court) Rules 2014 (the Representation in SICC Rules). These were amended in June 2021 along with the SICC Practice Directions and contain similar obligations to the LPR 2015 for registered foreign lawyers representing a client in an SICC proceeding.27

ii Litigation funding in insolvency

The Insolvency, Restructuring and Dissolution Act 2018 (the IRDA) came into force on 30 July 2020 and was introduced to consolidate all the rules regulating insolvency and restructuring proceedings in Singapore.

Along with significant modifications to insolvency and restructuring proceedings, the IRDA contains references to third party funding and expressly allows judicial managers and liquidators to enter into agreements with funders for funding proceedings related to :

  1. transactions at an undervalue;28
  2. unfair preferences;29
  3. extortionate credit transactions;30
  4. fraudulent trading;31
  5. wrongful trading;32 and
  6. damages against delinquent officers.33

Provided they have obtained the authorisation from the Court or from the committee of inspection, liquidators and judicial managers may now assign the proceeds of litigation arising out of one of the above-mentioned categories in exchange for funding. However, the IRDA contains strict limits such as the fact that liquidators and judicial managers may only provide for the assignment of proceeds from actions to unwind prejudicial transactions and must avoid acts detrimental to creditors brought by judicial managers or liquidators. It does not open the scope of funding to any and every type of litigation.

Before the IRDA entry into force, funding was already allowed in the insolvency sector by well established case law saying that liquidators (only) can conclude funding agreements.34 According to the announcement made by the Senior Minister of State for Law at the time of publication of the IRDA, the latter 'is not intended to affect other funding arrangements that are allowed under common law, such as funding for causes of action that belong to the company as its property, and funding for the investigation of potential causes of action for financially distressed companies'.35

Structuring the agreement

The Civil Law Act does not contain any provision on how the funding agreement should be structured. Therefore, as long as the funding arrangement meets the two conditions set out above, it will be considered valid and enforceable.

However, to assist legal practitioners in drafting funding contracts, the Guidance Note and the SIARB Guidelines have provided guidance.

The SIARB Guidelines is the only source which sets some basic principles on how the contract should be drafted and what provisions it should contain, stating that it:

  1. should be in writing,
  2. should specify the amount of funding to be provided to the funded party,
  3. should indicate the agreed investment return to the funder;
  4. should be drafted in as clear and concise a manner as possible so as to be properly understood by the funded party;
  5. shall specify that the funder authorises the subsequent disclosure of the funder's identity, its address and the existence of the funding to the other parties, legal practitioners and court or arbitral tribunal in the funded proceedings;
  6. shall adequately address all matters highlighted in Sections 3 to 8 of the SIARB Guidelines; and
  7. shall include a fair, transparent and independent dispute resolution mechanism for resolving any disputes that may arise between the funder and the funded party.36

Aside from those drafting recommendations and the five major topics discussed below, parties remain reasonably free when negotiating the terms and conditions of the funding agreement, provided they comply with the general principles applicable to all commercial contracts under local law.

i Confidentiality

When performing its due diligence, the funder will have access to confidential information on the client and the litigation for which the client seeks funding.

The Guidance Note states that the client's lawyer should comply with their duty of confidentiality towards the client as contained in the PCR 2015 when giving information to the funder. The lawyer should also advise the client to enter into a non-disclosure agreement with the funder before providing any confidential information and should make sure that this agreement (and the funding agreement) contain enough confidentiality obligations as listed in paragraph 28 of the Guidance Note.

From the funder's perspective, based on the SIARB Guidelines,37 a funder must: (1) observe the confidential nature of the information provided to it; and (2) make sure not to seek disclosure of information from the client's lawyer that could result in a breach of privilege or of confidentiality by the lawyer.

ii Scope of the funding and funder's liability for adverse cost orders38

The funding agreement should specify the funding amount and any explanation of how this amount could evolve. It should also specify the type of costs that the funding covers and in particular whether it covers adverse party costs, security for costs, or insurance costs (for example, when the funder intends to seek after the event insurance). The Guidance Note advises the lawyer to sufficiently assist the client by ensuring that the funding agreement contains sufficient details on the scope of the funding and adverse cost orders.39

The funding agreement must also set a waterfall of payments in case of recovery of any sum from the proceedings. A funder will generally require that it is paid first in the waterfall, at least in respect of the initial funding amount. The payment of its fees could be paid simultaneously with the lawyers' fees (if contingency fees are allowed), and the balance would be paid to the client.

iii Conflict of interest

While interests are often aligned between the funder and the client as they both want the litigation to result in the highest recovery possible, some conflicts may arise. For example, this could occur when the client wants to terminate the litigation early because it intends to merge with another company and wants to clean its balance sheet of any ongoing litigation. It could also happen where the client wants an early settlement despite high chances of success. The funding agreement should contain clauses detailing how to deal with such situations, including termination clauses.40 When drafting termination clauses, the Guidance Note advises lawyers to list the situations where the funder may terminate the agreement and the obligations that should survive the termination of the funding agreement.41

The Guidance Note also reminds the lawyer that in any case he or she owes professional and fiduciary duties to the client only42 and discourages lawyers from acting on behalf of the client and the funder in the drafting and review of the funding agreement.43 If a dispute arises between the funder and the client, the client's lawyer should only act in the client's interest.44

The SIARB Guidelines contain similar provisions and encourage the funding agreement to contain a proper dispute resolution mechanism to resolve a conflict (of interests) between the funder and the client.45 They also prevent funders from continuing to fund several parties to the same proceedings if a conflict of interest arises between them.46

Conflicts of interest can also arise at the level of the arbitration tribunal, for example, if an arbitrator acts as a lawyer in another dispute where a funder funds the costs of the arbitrator's client. The SIAC practice notes say that then:

any potential candidate for appointment as an arbitrator shall disclose to the Registrar and the Disputant Parties, any circumstances that may give rise to justifiable doubts as to 2 of 2 Administered PN – 01/17 (31 March 2017) his impartiality or independence, including any relationship whether direct or indirect, with an External Funder, as soon as reasonably practicable and in any event before his appointment.47

Article 46 of the Guidance Note and Article 49A of the PCR 2015 contain similar obligations.

iv Funder's level of involvement in proceedings

Depending on the type of funder, it may require (if the applicable law allows) more or less involvement in the litigation decision-making process. In a classic funding agreement, the client remains the owner of the claim,48 and should be the ultimate decision-maker. However, for particular decisions, the prior approval of the funder may be needed as the funder needs to protect its investment and the estimated prospects of recovery.

The Guidance Note49 states that the funding agreement should specify the scope of the funder's role, namely on the following topics:

  1. choice of solicitor;
  2. choice of arbitrator and/or mediator;
  3. strategic or tactical decisions;
  4. considering advice from and providing instructions to the claimant's solicitor;
  5. managing litigation expenses; and
  6. providing input on decisions about whether to settle the claim and on what terms.

Disclosure

Again, the CLA is silent on whether the existence or content of a litigation funding agreement should be disclosed during proceedings.

Regarding the funding of insolvency proceedings, the IRDA does not contain a specific provision on disclosure but merely imposes an obligation on liquidators to obtain the prior approval of the Court or a committee of inspection before entering a funding agreement. This obligation suggests that the liquidator or judicial manager would need to disclose at least the agreement's existence before receiving said approval, but this is not explicitly stated in the legislation.

All guidelines on third party funding in arbitration mention an obligation to disclose at least: (1) the existence of a funding agreement; (2) the identity and address of the funder involved; and (3) any change happening during litigation or arbitration.50 The disclosure must be made upon the tribunal's request, but the Guidance Note provides that it should even be made on the lawyer's own initiative either at the start of the proceedings if the funding agreement is already concluded or as soon as practicable thereafter if the funding is entered into at a later stage.

No arbitration guideline contains an explicit obligation to disclose the content of the funding agreement or the parties' obligations, except on costs (see below). The SICC Practice Directions, in the chapter on the allocation of costs, suggests that the Court could take into account the existence of a funding agreement, but also the scope, extent, and terms of the agreement so that one could deduct that not only the existence of the funding and identity of the funder should be disclosed, but also the obligations of the parties under the agreement51 to allow the judge to decide on costs.

Costs

As stated above, the funding agreement should contain sufficient details on the scope of the funding and adverse party costs.

The SIAC Guidelines52 contain important provisions on how arbitrators should consider the conclusion by a party of a funding agreement in the proceedings. While they state that the tribunal should not take the involvement of a funder alone as an indicator of a party's financial situation, this agreement could well be considered when the tribunal apportions the costs of the arbitration. They also says that the tribunal may take into account the involvement of an external funder in ordering in its award that all or a part of the legal or other costs of a disputant party be paid by another disputant party.53

The SICC Practice Directions also stipulate that the Court may assess the costs take into account 'such circumstances as the Court considers relevant, including the conduct of the case and the existence, scope, extent and terms of any third-party funding contract'.54 More importantly, the Court could also order costs to be paid by a funder who is not a party to the application or proceedings.55

The year in review

2021 has been an important year for third party funding in Singapore with the new amendments to the legislation allowing third party funding for domestic arbitration and SICC court litigation.

While funding was already frequently used in international arbitrations with high-profile cases, this new expansion will enable clients with smaller cases to get access funding. More companies that may have been unwilling to file a legal claim due to financial or other business constraints are now free to do so under specific circumstances, as they do not have to choose between furthering their business or filing an arbitration or SICC claim.

Conclusions and outlook

Companies may have a meritorious claim but lack the resources, or the willingness to allocate those resources, to litigate. By using funding, uncollected recovery potential on their balance sheets becomes an asset. The use of funding also transfers all the risks related to the litigation from the company to the funder. Litigation funding also offers opportunities for risk management.

In the past year, countless companies have suffered from the covid-19 pandemic. They have seen their activities significantly slowed or even completely stopped. While we can hope for a brighter future, it is undeniable that companies will need to allocate their financial resources to many areas other than litigation. That is why funding is a valued resource for companies, even more in the post-covid situation. By taking a step further in favour of funding, Singapore, as an international hub and a local market, has understood the advantages of funding for its stakeholders and has allowed them to use it more broadly. Hopefully, the next step will be to accept funding for any type of litigation and not only before the SICC.

Footnotes

1 Olivia de Patoul is a senior legal counsel at Deminor.

2 '2021 International Arbitration Survey: Adapting Arbitration to a Changing World'http://www.arbitration.qmul.ac.uk/research/2021-international-arbitration-survey/.

3 See Re Vanguard Energy Pte Ltd [2015] 4 SLR 597.

4 Section 5A of the Civil Law Act.

5 Section 5B of the Civil Law Act.

6 Sections 4 and 5 of the Civil Law (Third-Party Funding) Regulations 2017.

7 Section 4(1)(a) of the Civil Law (Third-Party Funding) Regulations 2017.

8 Section 4(1)(b) of the Civil Law (Third-Party Funding) Regulations 2017.

9 Section 4(2) of the Civil Law (Third-Party Funding) Regulations 2017 says that: 'managed assets', in relation to a third-party funder, means all of the following: (1) moneys and assets contracted to, drawn down by or under the discretionary authority granted by investors to the third-party funder and in respect of which it is carrying out fund management; (2) moneys and assets contracted to the Third-Party Funder and under the non-discretionary authority granted by investors to the third-party funder, and in respect of which the Third-Party Funder is carrying out fund management; and (3) moneys and assets contracted to the Third-Party Funder, but which have been sub-contracted to another party and for which the other party is carrying out fund management, whether on a discretionary authority granted by investors or otherwise.

10 Civil Law (Third-Party Funding) (Amendment) Regulations 2021, Section 3.

11 Third-Party Funding to be Permitted for More Categories of Legal Proceedings in Singapore, press release of 24 June 2021, https://www.mlaw.gov.sg/news/press-releases/2021-06-21-third-party-funding-framework-permitted-for-more-categories-of-legal-preceedings-in-singapore.

12 Section 5B(4) of the CLA.

16 Article 2 of the Guidance Note.

17 Article 22 of the Guidance Note.

18 Section B of the Guidance Note.

19 Article 1.3 of the SIARB Guidelines.

21 Amendment No. 3 of 2021 of the Singapore International Commercial Court Practice Directions, https://www.supremecourt.gov.sg/docs/default-source/default-document-library/sicc-pd(amendment-no-3-of-2021).pdf.

22 Article 152 'General' of the SICC Practice Directions.

23 This refers to local lawyers admitted to practise as an advocate and solicitor of the Supreme Court in Singapore and to foreign lawyers registered under Sections 36B, 36C, 36D, or granted approval under Section 176 of the Act.

24 Legal Profession (Professional Conduct) Rules, https://sso.agc.gov.sg/SL/LPA1966-S706-2015.

25 Article 49A of the LPR 2015.

26 Article 49B of the LPR 2015.

27 Articles 4A and 4B of the Representation in SICC Rules, https://sso.agc.gov.sg/SL/LPA1966-S851-2014?DocDate=20181022.

28 Section 224 of the IRDA.

29 Section 225 of the IRDA.

30 Section 228 of the IRDA.

31 Section 238 of the IRDA.

32 Section 239 of the IRDA.

33 Section 240 of the IRDA.

34 See Re Vanguard (mentioned above), Trikomsel (HC/OS 989/2018), Solvadis Commodity Chemicals Gmbh v. Affert Resources Pte Ltd [2018] 5 SLR 1337.

35 Second Reading Speech by Senior Minister of State for Law, Mr Edwin Tong, on the Insolvency, Restructuring and Dissolution Bill, point 52 :https://www.mlaw.gov.sg/news/parliamentary-speeches/second-reading-speech-sms-edwin-tong-insolvency-omnibus-bill.

36 Article 3 of the SIARB Guidelines.

37 Article 5 of the SIARB Guidelines.

38 See article 3.2 of the SIARB Guidelines and article 2 of the Guidance Note.

39 Articles 30 and 31 of the Guidance Note. See also article 3.2 of the SIARB Guidelines.

40 Article 7.1.1 ad 7.1.2 of the SIARB Guidelines.

41 Article 5 of the Guidance Note.

42 Article 37 of the Guidance Note.

43 Article 39 of the Guidance Note.

44 Article 37(b) of the Guidance Note.

45 Articles 2.1.3 and 3.1.7 of the SIARB Guidelines. This is also stated in article 42 of the Guidance Note.

46 Article 6.1.5 of the SIARB Guidelines.

47 Article 4 of the SIAC Guidelines.

48 In particular circumstances, a funder may decide to purchase the claim and will then become the owner of the claim. A lump sum would then generally be paid to the client upfront (possibly combined with a percentage in the proceeds). In this type of contract, the funder is not paying for the costs of the litigation but purchase the claims and becomes the owner of it.

49 Article 2 of the Guidance Note.

50 Article 47 of the Guidance Note, article 8 of the SIARB Guidelines and article 5 of the SIAC Guidelines.

51 Article 152 'General' of the Practice Directions.

52 Articles 9 and 11 of the SIAC Guidelines.

53 Article 11 of the SIAC Guidelines.

54 Article 152 'General' of the Practice Directions.

55 Article 152 'General' of the Practice Directions.

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